Page 3594 - Week 11 - Tuesday, 22 November 2022
The bill will allow survivors to apply to the court to have a past settlement agreement set aside if, at the time the agreement was made, there were legal barriers to the survivor being fully compensated or if the agreement, in all the circumstances, is not a just and reasonable agreement. This is in recognition of the fact that many survivors gave up their ability to pursue just compensation due to being in an unfairly weakened bargaining position.
This legislation will allow such claims to be pursued anew, with the benefit of all the reforms following from the royal commission. Once the agreement is set aside, the survivor will then be able to have their claim determined on its merits and to receive just compensation for the harm they have suffered.
The bill will broaden the definition of child abuse in the Limitation Act to encompass physical abuse. As a result, survivors who experienced historical physical abuse as children will no longer be statute barred from bringing a claim for compensation in respect to that physical abuse. As introduced to the Assembly in June 2022, the bill outlines that the types of agreements that can be set aside are agreements, firstly, that happened prior to the removal of the limitation period; secondly, where there might have been the option to apply to the court to have the limitation period extended but the survivor did not, or could not do so; and, thirdly, that happened before the Justice and Community Safety Legislation Amendment Bill 2022 was introduced, where the agreement is not just and reasonable.
It is in the court’s discretion to determine what is just and reasonable according to the circumstances of each case. This may include, for example, the amount of the settlement, compared to what the survivor would receive today; the bargaining power of the parties; the inability to identify a defendant; deficiencies in the law of liability at the time; and misconduct of the institution or misconduct or weak conduct by the victim’s own lawyer towards the victim.
The reform’s intent is to provide the court with the power to consider settlements entered into because of any of these factors, or any combination of these factors, and to set them aside. This broad approach is intended to result in greater rights for survivors and recognises that not all barriers survivors face that result from unjust settlements are legal ones.
These amendments reflect what we heard from survivors throughout the target consultation process that was undertaken for the bill, including the fact that it was not just legal barriers that prevented survivors from receiving appropriate compensation. The bill intends to create greater equality for survivors by allowing access to compensation that is appropriate by the standards of today.
This legislation has been designed to help remedy past injustices. Survivors of all forms of child abuse deserve, and have always deserved, adequate compensation for the trauma and serious personal injuries they have been burdened with through no fault of their own. Compensation must be adequate by the standards of today and our legislation must work to benefit survivors and hold offending institutions accountable.
These reforms continue to demonstrate the government’s commitment to upholding the rights of child abuse survivors, while allowing them to receive compensation that