In late 2019, Queensland officially passed legislation that significantly increased options for seeking compensation in childhood sexual abuse cases. Coming into effect in March 2020, these changes removed the statute of limitations for serious cases of physical and psychological abuse.
The reforms in legislation seek to ingrain in legislation the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.
Announced in 2013 by then-PM Julia Gillard, the Royal Commission’s aim was to investigate and report upon the responses by institutions towards sexual abuse. At the time, evidence was coming to light that instead of being reported to the police, alleged child abusers were being moved around and protected by their institutions.
Religious and educational institutions, religious groups, sporting organisations, state and federal institutions and youth organisations were all examined by the commission.
We cover these new changes below and speak to our Legal Practice Director, Faran Gouldson, to learn more about what they mean for abuse survivors.
What are the main changes to the law?
Coming into effect in March of 2020, the main changes of the law include:
Extended definition of child abuse
The definition of child abuse in several pieces of legislation has extended to include ‘serious physical abuse’ and ‘psychological abuse perpetrated in connection with sexual abuse or serious physical abuse of the child’.
Removal of limitation period
The broadened definition of child abuse required an amendment on the Limitations of Actions Act and Personal Injuries Proceedings Act (PIPA). Now, the limitation period on initiating a claim does not apply, and survivors can begin proceedings at any time.
Importantly, this amendment applies retroactively, meaning all claims past and present have had their limitation period removed.
Duty to prevent future abuse
Under new legislation, the onus has been placed on institutions to prove they took reasonable steps to prevent abuse of a child in their care, supervision, authority or control by a person associated with their institution.
Volunteers and contractors may also be deemed to be associated with the institution.
Abolition of the ‘Ellis Defence’
The ‘Ellis Defence’ the name given to actions by institutions to avoid legal responsibility for historical child sexual abuse. Historically an unincorporated institution could not be held responsible or sued for historical abuse claims because it was not a legal entity, and its assets were bound in a legally protected trust, at the time of the abuse.
This use of this defence has been removed under the new legislation in all states of Australia.
Apologies
Institutions are also required to issue particularly worded apologies without admission of liability.
What do these changes mean for survivors?
These legislative changes essentially increase the options available to abuse survivors who have either suffered in silence for years, or were forced to accept inadequate settlements which removed their eligibility for future claims.
Now, survivors of abuse have options as to how they wish to seek compensation, which are:
- Claiming under the National Redress Scheme
- A damages claim against the institution
An important thing to note is that if you accept a payment from the National Redress Scheme, you forgo your ability to make a damages claim in the future. As such, we recommend doing some research and seeking legal advice before making a decision about opting into the National Redress Scheme.
While these cases are deeply sensitive, qualified legal advice will be invaluable.
The National Redress Scheme
The National Redress Scheme acknowledges the harm done to survivors of institutional sexual and physical abuse. If the institution which you wish to claim against has signed up to participate in the scheme, you may be awarded compensation.
The National Redress Scheme can help you:
- Seek payment, of which the amount is directly related to the nature of the abuse, as well as the institution itself.
- Seek further payment for psychological treatment.
- Request a personal apology from the institution.
Again, you forgo your opportunity to commence a damages claim if you go through the National Redress Scheme.
A Damages Claim
Due to the removal of limitation of actions time limits placed on personal injury damages claims specifically in sexual abuse cases, survivors can now commence legal claims for historical abuse regardless of how long ago they occurred. In these situations, the assistance of an institutional abuse lawyer will be invaluable.
Through a damages claim, you can:
- Claim for the impact the abuse has had on your life, specifically including loss of past earnings, superannuation etc, and more importantly compensation for loss of future earnings.
- Claim for pain and suffering
- Access reimbursement for any treatment you have paid for in the past, or receive a sum allowing you to access treatment in the future.
- Seek a personal apology from the institution in question.
Gouldson lawyers are experienced in handling these kinds of claims. We can help you understand what options are available to you.
Which compensation option should I choose?
Commencing a claim for compensation, especially with these sensitive circumstances, is a delicate and emotionally draining process. The best option for your individual situation will depend completely on your unique circumstances.
If you so wish, you can have your case reviewed for free by a Gouldson lawyer. Our specialist lawyers are well-versed in dealing with sensitive abuse cases. They’ll empathetically and respectfully ask the right questions to give you an idea of the best steps forward.
A message from our Principal
We sat down with Faran Gouldson, our Principal and Legal Practice Director.
What do these laws mean for survivors who have suffered in silence all these years?
Access to justice, and compensation is now available to many survivors who previously were barred by legislation from seeking to claim compensation for the heinous wrongs perpetuated against them. Additionally, the focus now afforded to this horrible history within our society has afforded many survivors a voice they previously never had, a platform of support, and recognition not previously available.
How can qualified legal advice help survivors understand their options?
A decision to opt into the National Redress Scheme or to attempt to access damages at law is a serious one. A decision one way or the other has lifelong consequences. Expert legal advice is critical and every survivor owes it to him/herself to be properly informed and reliably represented before making any decision on how to approach these decisions.