A New South Wales survivor of child sexual abuse, along with Greens MP David Shoebridge, has called for the state’s law to change to allow abuse survivors access to fairer compensation.
In NSW, child sexual abuse survivors cannot re-sue compensation if they believe an original settlement was unfair. However, abuse survivors in WA and QLD do have the right to sue for more compensation, with Victoria and Tasmania looking to pass similar laws NSW Greens politician David Shoebridge has called on the state Attorney General to change the law Currently, legal rights for abuse survivors in NSW are lagging behind the laws in place in other Australian states.
After James (not his real name) was sexually abused by a Catholic brother when he was 13, an out-of-court set element of $27,000 in 1996 barred him from re-suing in the future because he signed a deed of release in NSW.
“The case took nearly two years; it was an excruciating process to go through,” he said.
“The result was that I sat outside a court ready to testify against the perpetrator and this particular order, my solicitor came out and said the order had made an offer and it was their recommendation that I accept the offer.”
Child sexual abuse survivors in Western Australia and Queensland can sue again by asking the courts to set aside the deed of release if they find it just and reasonable to do so.
Victoria and Tasmania currently have legislation waiting to be passed that would mirror the laws in WA and Queensland.
However, survivors in NSW find themselves stuck as a signed deed of release stops them from taking further action, despite politicians, lawyers, and industry experts calling for the law to change.
After James accepted a settlement, he thought that part of his life was behind him. But when he gave private testimony to the Royal Commission into Institutional Responses to Child Sexual Abuse, he began to feel his compensation was not enough.
“Given the damage that the abuse had caused me in my life, he [the commissioner] said the $27,000 was in no way an adequate sign of contrition or recognition of the damage that it caused,” James said.
NSW Greens MP David Shoebridge has called on the state Attorney General, Mark Speakman, to change the law and give the courts the discretion to set aside previous judgments in cases of child sexual abuse.
“NSW is out of step with other states including Queensland and Western Australia where steps are taken to ensure that ‘deeds of release’ are not an obstacle to a fair outcome to those whose lives have been scarred by abuse,” Mr. Shoebridge said.
Royal Commission recommendations
When the Royal Commission handed down its recommendations, one organization endorsed as a place for survivors to find free legal advice was Knowmore Legal, a program part of the National Association of Community Legal Centres and funded in part by the Federal Government.
Know more Legal, Warren Strange, is based in Queensland, where courts do have the discretion to set aside a deed of release.
Since the law was changed in Queensland in 2017, only one case has tried to use the law.
Mr. Strange said all eyes were watching the first case in anticipation of the court’s decision.
“I expect many other potential claimants were waiting to see the outcome of this matter … I think people were certainly taking the view that it was prudent to see the court decision before bringing other claims,” he said.
Frustration in the legal profession
Peter Karp, a senior solicitor who is highly experienced in sexual abuse compensation claims, is currently representing James to try and reopen a compensation case.
There are two options available to James to access further compensation, despite signing a deed of release.
The first option is to apply to the Federal Government’s National Redress Scheme after the Royal Commission.
The second pathway was opened up by the Truth, Justice and Healing Council, a body established by the Australian Catholic Bishops Conference and Catholic Religious Australia, to coordinate the Church’s involvement in the Royal Commission.
The Council released a set of guidelines in November 2014 to offer abuse survivors, like James, the chance to have their claims reopened by asking the church authority to assess if the previous settlement was “inadequate or unfair.”
Peter Karp has reached out to the Catholic order responsible for the abuse James suffered as a child in the hopes of having his case reopened, but according to Mr. Karp, the order has not responded.
“So, we made that invitation. Initially, it was rejected by the respondent, a few months ago, we made another approach to them, and we have not heard back from their lawyers since then,” he said.
Compensation could be ‘ten times’ greater
James and Mr. Karp continue to pursue mediation with the order, despite having no legal avenue available to them.
According to Mr. Karp, James’s compensation in 1996 is significantly less than what today’s standards would award him.
When asked how much he thought James would be awarded if his case was heard for the first time today, Mr. Karp said the compensation would be dramatically improved.