Setting Aside Settlement Agreements for Past Child Abuse

In September 2015, the Royal Commission into Institutional Responses to Child Sexual Abuse made powerful and far-reaching recommendations about what governments and institutions should do to deliver justice and support to survivors. These included improving the capacity of civil litigation systems to provide justice to survivors and establishing a national redress scheme.

In 2016, the NSW Government implemented comprehensive reforms and policy changes to:

• retrospectively remove limitation periods for child abuse, and
  
• introduce an updated Model Litigant Policy for NSW Government agencies.
  

In 2018, the NSW Government implemented further reforms and policy changes to:

• retrospectively require a proper defendant be appointed for cases brought against unincorporated organisations (removing what was known as the Ellis Defence), and
  
• introduce two new statutory liabilities for child abuse.
  

These reforms and policy changes were designed to remove barriers to seeking civil justice for survivors. However, many survivors entered into settlement agreements prior to the 2016 and 2018 reforms that might now be considered unfair, in light of the fact that legal technicalities that were relevant to their case have now been removed by the reforms. 

Many survivors of child abuse who entered into those settlement agreements would be barred from seeking further compensation as the agreements generally released the institution from any further liability.

The NSW Government is seeking submissions on possible reforms to:

• allow NSW courts to set aside historical settlement agreements for child abuse; and if so
  
• options for how this possible reform should operate. 
  

Discussion paper

The Setting Aside Settlement Agreements for Past Child Abuse Claims Discussion Paper addresses the policy rationale and key features of the possible reforms, including the potential test and criteria for the courts to apply. You can also read the discussion paper factsheet.

The Discussion Paper includes specific questions for consideration; however, you can also comment on any other relevant issues.

Submissions

Submissions closed on Wednesday, 15 April 2020.