NSW Releases Bill Affirming Commitment to National Redress Scheme for Institutional Child Sexual Abuse

“It is anticipated that the Commonwealth Parliament will introduce the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 in the coming weeks so that the National Redress Scheme can start on 1 July this year.

The Royal Commission into Institutional Responses to Child Sexual Abuse heard from thousands of survivors across Australia. Their stories opened our eyes to the prevalence of institutional child sexual abuse, the failure of institutions to respond and the lifelong impact it brings to bear. The findings and recommendations of the royal commission are powerful and far-reaching. The New South Wales Government will respond formally to all of the recommendations in June. Leading the way in joining the National Redress Scheme is one of a number of significant steps the New South Wales Government is already taking to protect children from institutional sexual abuse, to hold perpetrators to account and to provide support and justice for survivors. Swift and decisive action is what the community expects—and rightly so. That is why New South Wales, together with Victoria, will be first to opt in to, in principle, the National Redress Scheme.”

“The New South Wales Government has already responded to a number of recommendations in the royal commission's redress and civil litigation report. This includes, first, introducing guiding principles for civil child abuse claims made against New South Wales Government agencies to make litigation a less traumatic experience for victims and to ensure a compassionate and consistent approach. In 2016 the Government issued a Premier's Memorandum on the Model Litigant Policy for Civil Litigation, which had the effect of incorporating the guiding principles into the model litigant policy. Our response to the royal commission includes, secondly, amending the Limitation Act 1969 in 2016 to remove limitation periods for all actions for damages that relate to death or personal injury from child abuse, including actions against a perpetrator of the abuse or a negligent institution.

Limitation periods were removed because of their effect on victims of child abuse, who on average do not disclose their experiences, or act on them, until decades after the abuse occurs. Thirdly, the Government has been undertaking an extensive consultation process on proposals to address the barriers that survivors face in seeking damages through civil litigation. The royal commission identified that these barriers include members of religious orders not being "employees" within existing vicarious liability law, and the lack of an entity with legal capacity to be sued—known as the "Ellis defence". New South Wales is continuing to take significant steps on behalf of survivors and I am pleased to say that proposed reforms will be put forward in the coming months.

In April, the New South Wales Government announced that it had accepted the overwhelming majority of recommendations in the royal commission's criminal justice report. More than 50 of these recommendations will be introduced before the end of 2018, which include introducing new criminal offences, including offences of failure to report and failure to protect children from abuse; strengthening existing criminal offences, including increasing the maximum penalty for persistent child sexual abuse to life imprisonment; changes to sentencing, including requiring courts to apply current sentencing standards for historic child sex offences; and changes to procedure, such as retrospectively repealing an old limitation period that is preventing some survivors from accessing justice today.”

“The object of this Bill is to refer certain matters relating to the National Redress Scheme for Institutional Child Sexual Abuse to the Commonwealth Parliament so as to enable the Commonwealth Parliament to make laws about those matters. The proposed Act will be enacted for the purposes of section 51 (xxxvii) of the Commonwealth Constitution, which enables State Parliaments to refer matters to the Commonwealth Parliament.

The Bill operates to refer matters relating to institutional child sexual abuse as follows:

1. The text reference, which provides for the enactment by the Commonwealth Parliament of the Bill for a proposed Commonwealth Act as set out in Schedule 1. The proposed Commonwealth Act is the National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (the National Redress Act).
2. The amendment reference, which provides for the enactment of express amendments to the National Redress Act relating to redress for institutional child sexual abuse. The amendment reference is subject to limitations under clauses 5 and 6.”