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Help for those ‘violated in unspeakable ways’ is coming

Reform of part 2A of the Civil Liability Act is a necessary second chance for survivors of abuse in custody, writes Sheree Buchanan.

user iconSheree Buchanan 22 March 2021 Big Law
Sheree Buchanan
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Last week marked a mammoth step forward for victims of child abuse in custody when the NSW government made an overdue decision to consider reforming part 2A of the Civil Liability Act. The reformed bill will look to remove restrictions on personal injury claims for survivors of child abuse that occurred in custody.

This proposed law reform will mean that the NSW government and their lawyers will no longer be able to rely on an unfair provision to curb payouts to victims of child abuse in custody. To be clear, this provision – known as part 2A of the Civil Liability Act – does not affect all survivors of abuse, only those that were abused in custody between 1987 to 2018. Currently, the NSW government has been hiding behind this provision, which not only prevents most survivors from being compensated for their injury and pain and suffering, but it requires them to attain an injury impairment of 15 per cent. Almost all survivors surpass this threshold because of the horrific trauma they endured, but this is not the point. It’s another hurdle. It’s another barrier. It’s another injustice.

This law reform will assist so many victims who were children when they were violated in unspeakable ways, when they were trapped in custody and had nobody to report what was happening to them.

 
 

In many of our clients’ cases the evidence is there that when in custody, the officers used them for their own sexual gratification and threatened their lives if they were to speak a word of the abuse. As physically underdeveloped teenagers, these victims were powerless to do anything to stop the opportunistic abuse. If they fought back, they were often beaten.

The power imbalance in these unspeakable situations was very real. No human being no matter what they have done to be in a correctional facility deserves to be sexually abused, let alone struggling, developing adolescents. Many of these children were in detention for petty crimes. They often came from prejudicial backgrounds, a neglectful home, some had mild intellectual disabilities or learning impediments. Most were troubled youth that needed support and protection. Instead, they were punished again, and again, and again.

You only have to spend half an hour with these victims to see just how traumatised they are from the shocking abuse they suffered and yet we have struggled to help them seek justice and adequate compensation on their behalf.

To ensure this unspeakable culture is stamped out from juvenile justice centres, these facilities must be held to account. Now with this proposed law reform, NSW victims will be able to seek compensation and justice, just like victims have been able to do in other states for many years and just like victims who were abused in custody prior to 1987.

We, as a profession, have been vocal. We, as a profession, are passionate. We will fight for the underprivileged and disadvantaged members of our community. They need a voice. The NSW government should not be able to hide behind draconian provisions that were introduced to prevent some of the more fanciful compensation claims from being brought. Bringing a claim for child abuse is not fanciful. To suggest so, is unconscionable. It is offensive and it is in complete contravention of public interest, the government’s guiding principles and the findings of the Royal Commission into Institutional Responses for Child Sexual Abuse.

This reform makes it clear that this part 2A provision does not apply to, and is taken never to have applied to, an injury arising from child abuse whilst in custody.

I want to thank those that have responded to our cries for help. I want to thank colleagues who have supported this cause. I want to thank the victims who have been so brave to come forward.

Victims of child abuse in juvenile detention centres have been silenced for too long and in too many ways.

Being their voice in the legal arena is a privilege, one that I do not take lightly. The curtails are softening, but there is still a long way to go.

Sheree Buchanan is the abuse law practice leader at Shine Lawyers.