Page 1930 - Week 06 - Thursday, 9 June 2022
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The bill provides that the types of agreements that can be set aside are agreements: (a) that happened before the limitation period for the abuse was removed; (b) where there might have been the option to apply to the court to have the limitation period extended but the survivor did not do so; and (c) that happened before the JACS bill 2022 was introduced, where the agreement is not just and reasonable in the circumstances.
The latter subsection is important, as it recognises that not all barriers faced by survivors that resulted in unjust settlements were legal barriers. This broad approach is intended to result in greater rights for survivors. It reflects what we heard from survivors during the targeted consultation process for the bill: that it was not just legal barriers that prevented survivors from being appropriately compensated.
The intention is to create equality for survivors by allowing them to receive compensation that is appropriate by today’s standards. 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, and the bargaining power of the parties.
It is not necessary that the existence of the limitation period be the predominant reason as to why the agreement was entered into. It might be the reason. It might be one of the reasons. But it does not need to the only factor that permits the court to set aside the settlement. Once the agreement is set aside, the survivor is then able have their claim determined on its merits and receive reasonable and just compensation for the harm they have suffered.
The ACT government has heard from survivors and advocates that circumstances that resulted in unjust settlements include but are not limited to the expiry of a limitation period; the inability to identify a proper defendant; deficiencies in the law of liability at the time, including lack of clear, vicarious liability of institutions for intentional wrongs of an employee, or a person akin to an employee; misconduct of the institution—for example, withholding evidence, making false statements, denying things which they knew were true et cetera; asymmetry of power between the parties; misconduct or weak conduct by the victim’s own lawyer; and inadequate understanding by the court of abuse and the effect of abuse.
This bill will 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. It is important that there is clarity around the types of injustices that are able to be set aside, for applicants, respondents and the court. This legislation should not be weaponised in such a way that re-victimises a survivor and makes it more onerous than necessary to give the survivor access to the justice they have been denied for so long.
The bill also expands the definition of child abuse in section 21C of the Limitation Act from “sexual” abuse only to also include “physical” abuse. This aligns it with the definition of child abuse in section 114A(1) of the Civil Law (Wrongs) Act, which defines child abuse as including “sexual” or “physical” abuse.
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