20th Mar 2024, 11:39 AM – Senate National Redress Scheme for Institutional Child Sexual Abuse Amendment Bill 2023 - in Committee - Bar on civil proceedings

The majority voted against amendment (1) introduced by NSW Senator David Shoebridge (Greens), which means it failed.

Mr Shoebridge explained that:

This amendment seeks to provide a window of opportunity for survivors and victims of institutional abuse who, following a particularly noxious decision of the Supreme Court in the matter of GLJ, agreed to a much smaller redress payment under the statutory scheme and, by doing so, created a bar for themselves for receiving common law damages.

[...] This amendment says to any of the survivors who agreed to a redress payment in that period, between when GLJ was handed down and the High Court overturned it, that they can revisit that. If one of the reasons why they entered into the redress payment was the GLJ decision, they can apply to the court and have the bar lifted, and they can actually have their civil claim reinstated. It's entirely consistent with what the royal commission recommended for child sexual abuse survivors who'd had their claims dismissed because of extension-of-time applications. It's entirely consistent with what we did to deliver fairness when states and territories and the Commonwealth overturned decades of unfairness in the extension-of-time jurisdiction, and it is just so obviously fair to those survivors.

Amendment text

(1) Schedule 1, page 15 (after line 17), after Part 4, insert:

Part 4A — Civil proceedings after accepting offer of redress

National Redress Scheme for Institutional Child Sexual Abuse Act 2018

19A Section 43

Before "If", insert "(1)".

19B Section 43

Omit "this section" (wherever occurring), substitute "this subsection".

19C At the end of section 43

Add:

Civil proceedings after accepting offer of redress

(2) Paragraph (1)(b), as it relates to a person who has accepted an offer of redress, ceases to have effect by force of this subsection for the period of 12 months starting on the day this subsection commences if:

(a) the person accepted the offer of redress in the period starting on 1 June 2022 and ending on 1 November 2023; and

(b) at the time the person accepted the offer of redress:

(i) an order (however described) made by a court was in force to permanently stay civil proceedings brought or continued against a released institution or official for abuse of the person that is within the scope of the scheme; or

(ii) there was a reasonable possibility that, if the person were to bring or continue such proceedings, a court would make such an order or an application for such an order would be made in relation to the proceedings.

(3) The following have effect by force of this subsection if, within the 12-month period mentioned in subsection (2), the person brings or continues civil proceedings (the post-acceptance proceedings) against a released institution or official for abuse of the person that is within the scope of the scheme:

(a) the release and discharge mentioned in paragraph (1)(a), as it relates to the person and the post-acceptance proceedings (including any appeals), is taken not to have been made;

(b) the 12-month period during which paragraph (1)(b) ceases to have effect in relation to the person is extended in relation to the post-acceptance proceedings until the end of the day on which those proceedings (including any appeals) are finally determined.

(4) An order made by a court, in relation to the post-acceptance proceedings, for the payment of compensation or damages for abuse of the person does not affect the person's entitlement to redress under the scheme, whether the order is made before or after one or more components of redress are provided to the person.

(5) A court may, in exercising its discretion in making an order for the payment of compensation or damages for abuse of the person in relation to the post-acceptance proceeding, have regard to any redress payment for the person under the scheme if doing so is just and reasonable in the circumstances.