The Civil Liability Amendment (Child Abuse) Act 2021, passed under Parliament this week, will mean courts will be able to set aside unfair historic settlement agreements for victims of sexual and serious physical abuse. Additionally, the Crimes Legislation Amendment (Loss of Foetus) Bill 2021 will better support expectant parents who lose an unborn child due to another person’s criminal act.

The Crimes Legislation Amendment (Loss of Foetus) Bill 2021 proposes to strengthen the law by creating two new offences in the Crimes Act 1900: a stand-alone offence of “causing the loss of a foetus”, which will apply to a wide range of criminal acts and carry a maximum of five to 28 years imprisonment, as well as “causing the loss of a foetus (death of pregnant woman)”, which can be charged with a homicide offence where the foetus is lost and the pregnant woman is killed due to a third party criminal act.

These can apply where the foetus was at least 20 weeks or 400 grams weight.

Attorney-General Mark Speakman said creating new criminal offences would expressly recognise the loss of an unborn child as a unique injury and loss for the pregnant woman and other family members.

“Currently, there is no stand-alone offence of causing the loss of an unborn child. These proposed changes will better acknowledge the heartbreak suffered by families and punish offenders appropriately,” he said.

“The reforms recognise the loss that parents and families go through in these cases, without undoing long-standing legal principles.

The reforms will also improve support and recognition available to parents who have lost an unborn child of any age as a result of a third-party criminal act. Furthermore, when either of these new offences is charged, families may also be eligible for a one-off $3,000 payment when the accused is charged with one of the new offences, to assist with counselling and other support services.

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Additionally, the new reform to support survivors of child sexual abuse will hold institutions to better account and allow victims to seek the compensation they deserve, Mr Speakman said.

“We are righting the wrongs of the past to ensure survivors can access the civil justice they deserve and be properly compensated for the appalling mistreatment they suffered as children,” he said.

“Many survivors, who were often suffering trauma and had no legal advice, reported a significant power imbalance when negotiating claims. They felt forced to accept inadequate settlements under time pressures due to legal technicalities preventing them from suing responsible institutions.

“We are overhauling the legal frameworks that enabled this injustice in order to hold those institutions to account.”

In 2016 and 2018, the government introduced reforms that removed barriers for survivors’ civil justice in response to recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse. At the time, the reforms included eliminating limitation periods for child abuse claims and abolishing the legal technicalities that shielded some institutions from lawsuits.

The Civil Liability Amendment (Child Abuse) Act 2021 goes beyond the royal commission’s recommendations by allowing survivors impacted by these legal barriers to have the same access to justice as those who brought a claim after the government’s 2016 and 2018 reforms.

The bill will also remove restrictions on personal injury claims for survivors of child abuse that occurred in custody.

Alison Geale, chief executive officer of Bravehearts, welcomed the passage of the reforms through the NSW Parliament.

“For too long, survivors of child abuse have felt trapped in unjust agreements with powerful institutions. These settlements would often include signed deeds, which prevented survivors from taking further civil action against the perpetrators,” she said.

“These are critical reforms for survivors, giving them the opportunity to escape these unfair deals and access the justice they have been denied.”

The news has also been welcomed by the Australian Lawyers Alliance (ALA) - spokesperson Dr Andrew Morrison RFD SC said that the new reforms "will make a significant difference to the many survivors of abuse who were pressured into unfair compensation arrangements."

“We know that there are many abuse survivors who have, in the past, accepted inadequate compensation and unreasonable gag orders because of the power and financial resources of these institutions," he said. 

“We are particularly pleased that the laws remove restrictions on compensation claims for survivors of child abuse that occurred in custody. The abuse of a child within any institution is a terrible and serious crime, and abuse inflicted while this child is in the care of the government is particularly horrendous and the survivor must be able to access compensation.

“These news laws will allow survivors to pursue the compensation they deserve and overturn the often horribly unfair and unreasonable settlements of the past.”