A LEGAL roadblock stopping child sexual abuse survivors from suing churches and other powerful institutions has been “condemned to the scrapheap” from today, said NSW Attorney-General Mark Speakman.
NSW Government legislation abolishing the so-called “Ellis defence” takes effect from today after more than a decade where it blocked many survivors from seeking justice against the institutions that failed them.
“I’m pleased my first item of business in 2019 is to condemn the ‘Ellis defence’ to the scrapheap and create a fairer civil litigation system for all child abuse survivors,” Mr Speakman said.
The “Ellis defence” was a legal precedent set in 2007 when former altar boy John Ellis lost a landmark civil action against the Catholic Church for child sexual abuse.
Since then many unincorporated organisations have avoided being sued by invoking the Ellis defence on the basis they have no “legal personality” and are not a “proper defendant” that can be sued.
From today institutions can nominate a proper defendant with sufficient assets to meet a survivor’s claim. If the institution fails to do so a court can appoint trustees to be sued who can access trust property to pay the compensation.
I’m pleased my first item of business in 2019 is to condemn the ‘Ellis defence’ to the scrapheap and create a fairer civil litigation system for all child abuse survivors.NSW Attorney-General Mark Speakman
“This means all survivors of institutional child abuse in NSW will now have the same access to compensation through civil litigation, no matter what kind of organisation is responsible,” Mr Speakman said.
The legislative reform that was passed in October delivers a key recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse.
“The changes to the law are retrospective, making them accessible to survivors of past, present and future child abuse,” Mr Speakman said.
The NSW Government will continue to be a national leader in supporting survivors of institutional child sexual abuse, he said.
“NSW was the first state to pass laws enabling a National Redress Scheme and to introduce a comprehensive criminal justice response to the royal commission. The government has also removed limitation periods for civil claims relating to death or personal injury as a result of child abuse, including against a perpetrator or an institution.”
The moves were part of “changing the power balance so survivors can hold institutions accountable for horrific abuse and move forward with their recovery”, he said.
When the NSW Government introduced the legislation to Parliament in June, 2018 Mr Ellis – a lawyer who has represented many Hunter child sexual abuse survivors – said “It’s a good day. I wasn’t sure we’d ever see this day.”