David Shoebridge (NSW, Australian Greens) Share this | Hansard source

I note that the proposed amendment (2) from the opposition has not been moved. In that case, I move amendment (1) on sheet 2258:

(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.

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.

On 1 June 2022, in a decision of the New South Wales Supreme Court in the matter of GLJ against just one of the many, in this case, Catholic institutions that had abused them, the Supreme Court ordered what was called a permanent stay against the survivor and did so on the basis that somehow, because the institution had destroyed its records and the abuser had died, which is a common thread in abuse claims, the institution can't have a fair trial. The court ordered what is called a permanent stay against the survivor and said to the survivor, 'You can never bring these proceedings, because the institution allegedly can't get a fair shake,' and it then actually ordered the survivor to pay the institution's costs. This was in circumstances where the abusive priest was notorious for abusing other kids. There is a raft of evidence about the abuse, and multiple claims had been made against the institution before. But the Supreme Court latched onto a comment that was made by the royal commission.

The royal commission was recommending removing time limits for victims of historic child sexual abuse and the bar to proceedings from time limits for victims of child sexual abuse, a recommendation which was inherently just, because we know that victims of child sexual abuse often take two or more decades before they can finally speak about the abuse that happened to them and, by that stage, the usual three-year time limit has well and truly expired. Prior to the royal commission, those extension-of-time applications had been used in a toxic matter by institutions and the legal system to deny justice to victims of historical child sexual abuse. The royal commission said that should not continue and recommended that all the states and territories and the Commonwealth change their laws and remove the bar to bringing proceedings against institutions for child sexual abuse based on the effluxion of time. They basically said, 'We know that there are decades of delay and the law is operating unfairly.'

But when the royal commission recommended that, they said: 'But, look: there's a reserve power in the courts to protect their jurisdictions in the most extreme case. If it's dreadfully unfair to an institution, they can issue what's called a permanent stay.' It was intended to be only breaking glass in case of fire—the most extreme case. What GLJ did with the decision of Supreme Court Justice Garling was not only breaking the glass but inviting institutions to come in and seek permanent stays against survivors. Once that decision was made in GLJ, institutions all across the country that had previously been dealing in good faith with survivors suddenly said: 'We're going to apply for a permanent stay. You can't win this case. Look at what Justice Garling said in GLJ.' Then a series of other permanent stays were made by the Supreme Court in New South Wales, and then it spread around the country. Around the country the GLJ decision was being used against survivors of abuse.

As it happened, I spoke to many of the survivors and victims and their lawyers and representatives in the months and year or so that followed. They were telling my office and anyone who listened that, whenever they went in with a claim seeking fair compensation for historic child sexual abuse, pretty much every institution said: 'We're going to apply for a permanent stay. You can't win this case. Look at what happened in GLJ. We're going to seek costs against you.' What victims and survivors did then, often on the basis of the legal advice they got, is they either signed up to a really small settlement, which in no way reflected fair damages, or withdrew their civil proceedings and instead went to the redress scheme and agreed to a much, much smaller payment—often 10 per cent or less than they would have got in a civil claim—and they agreed to a settlement and got a settlement and a payment under the redress scheme. They accepted a payment under the redress scheme.

Thankfully, in a decision that was handed down on 1 November 2023, the High Court overturned GLJ and said, 'That's not how the law is meant to operate.' It said that, for the survivor in GLJ, the permanent stay should never have been issued, the court got it wrong, and it really is only in the most exceptional circumstances involving historic child sexual abuse that a permanent stay should ever be granted and the rationale by the court in GLJ was plain wrong, and Justice Garling had got it dead wrong. As a result of that, GLJ's case can now continue after, of course, they were put through enormous stress and delay and huge legal costs by the institution. Now GLJ's case can proceed, but the problem is that, between when GLJ got handed down on 1 June 2022 and the High Court delivered its decision on 1 November 2023, hundreds of survivors accepted redress payments because their lawyers told them that they couldn't win their case because of the permanent stay claims. They've accepted a fraction of fair compensation.

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.

If this amendment is not agreed to, we're basically saying to hundreds of survivors: 'Well, the law was unfair. We know it was unfair. It operated unfairly for 18 months, and because of that unfairness you've received only a fraction of fair compensation, and we're just going to leave it at that.' Surely, we can't do that. Surely, we should say that if any survivor so radically compromised their claim and accepted a redress payment in that window—it's not open-ended; it's only in the window between when GLJ was handed down and when the High Court overturned it—for the next 12 months, not forever, they have a window where they can actually reverse that election and go back and get fair compensation in the civil courts. I would urge this chamber to seriously consider this amendment. I'd urge them to accept it and, again, put survivors ahead of the institutions.