Proposed NSW law change a major win for abuse survivors

10 June 2018
The NSW Government’s plans to join Victoria in changing the law so child abuse survivors can sue churches and other institutions is a significant development which must be repeated in every other state and territory, according to Maurice Blackburn Lawyers.

Maurice Blackburn Abuse Principal, Michelle James says the NSW Government’s announcement it has drafted legislation to remove the ‘Ellis defence’ – a defence commonly used by unincorporated organisations to avoid being sued – is a welcome and major victory for survivors.

The 'Ellis defence' was based on a 2007 NSW Court of Appeal decision which ruled the Catholic Church was not a legal entity and could not be sued in a case brought against the Church by John Ellis who was sexually abused by a priest in the 1970s.

Michelle James said the proposed law reforms in NSW will remove a longstanding barrier to compensation for survivors, and it was now time for the rest of Australia to follow suit.

Victoria was the first state to pass legislation to remove the 'Ellis defence'.

“For too long the Catholic Church and other institutions have been hiding behind this defence which blocks victims from suing for compensation so these new laws in NSW will be a major step in helping child abuse survivors access justice,” Ms James said.

“It is particularly satisfying to see the law reforms will also reverse the onus of proof from the victim to the institution and hold these institutions to account for all people acting on their behalf, such as volunteers and priests.

“Despite well-documented abuse occurring within countless Catholic Church owned, affiliated and operated organisations, survivors have been forced to seek compensation directly from the particular diocese or congregation concerned, while the broader church remains at arm's length.

“This is unacceptable – after all that has been exposed by the Royal Commission, the Catholic Church must be held to account.

“It is wonderful to see the NSW and Victorian governments act on the Royal Commission’s recommendation to remove this unjust legal barrier for victims and we now need to see that repeated across the remainder of the country,” Ms James said.

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