Changes to SA legislation enables a claim for further compensation for Institutional sexual abuse

The Civil Liability (Institutional Child Abuse Liability) Amendment Act 2021 (SA) (‘Act’) was passed by both houses of State Parliament in late 2021 and was assented by the Governor on 9 December 2021. The Act became operational on 1 August 2022.

What is the Act?

The Act, which can be viewed in full here, contains multiple amendments to the law that may benefit survivors of child abuse in making a compensation claim, or applying to set aside a previous settlement agreement with the possibility of seeking further compensation. These amendments include:

• Clarifying when an organisation may be legally responsible for abuse perpetrated by someone connected with the organisation.
  

• Clarifying which institution should be sued, if the institution has changed in name or structure over time, or it has multiple legal entities.
  

• The possibility of applying to the Court to set aside a previous settlement agreement, if:
  

• At the time of the agreement, a limitation period applying to the claim had expired or the claim would not have been able to be commenced in Court as other parts of the Act had not been introduced, which have enabled an action to be commenced; and
  

• On application to the Court, the Court considers that it is ‘just and reasonable’ to set aside a previous settlement agreement.

Is there a time that the Act must be proclaimed?

Pursuant to section 27(6) of the Legislation Interpretation Act 2021 (SA), the Act must be brought into operation by proclamation on the second anniversary of the date on which the Act was assented.  The Act was proclaimed on 28 July 2022 which was fortunately sooner than this deadline.

Why was there a delay in proclaiming the Act?

In a recent interview about this with the ABC (which you can view here), there was little information provided by the Attorney General regarding the delay at that time in proclaiming the Act. In our experience, sometimes an Act is not proclaimed while regulations to support the operation of the Act are being developed. We do not currently have any information about whether any such regulations were being developed which delayed the Act being proclaimed.

If you are interested in applying to set aside a previous settlement agreement, please contact MKF Lawyers to register your interest. You can register your interest by emailing us at info@mkflawyers.com.au or calling us on 08 7093 2998.

‍