Australia: Navigation Of Australia's Different State Based Laws In Relation To Child Sexual Abuse

Last Updated: 14 December 2018
Article by Jonathan Wyatt and Fiona Le

In Australia, the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) was established in January 2013 to investigate the sexual abuse of children in both religious and non-religious public and private institutions. The final report was released on 15 December 2017 and recommended State and Territory governments to:

  • introduce legislation to remove any limitation period that applies to a claim for damages brought by a person where that claim is based on personal injury resulting from sexual abuse of the person in an institutional context, when the person is or was a child;
  • ensure that the limitation period is removed with retrospective effect and regardless of whether or not a claim was subject to a limitation period in the past; and
  • introduce legislation so that a person can identify a proper defendant and commence proceedings against unincorporated bodies.

During the five year enquiry, the Royal Commission heard from 7,981 survivors in 8,013 private sessions and found:

  • 58.1% of survivors of child sexual abuse said that the abuse took place in an institution managed by a religious organisation, 32.5% in a government-run institution and 10.5% in a non-government, non-religious institution;
  • almost 2 in 3 survivors were male survivors (63.6%) and more than 1 in 3 were female survivors (36.1%);
  • the average age of survivors was 52 years and the youngest was 7 years old; and
  • on average, it takes 23.9 years for a survivor to tell someone about the abuse.

Changes to the legislation

States and Territories across Australia have responded to the Royal Commission's final report by making legislative change. However that change is not consistent. The main changes are:

  • New South Wales, Western Australia, Queensland, Victoria and the ACT have passed legislation removing the Ellis defence – which protected unincorporated associations from being sued. The Ellis defence is named after the case Trustees of the Roman Catholic Church, The Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565. In that case Mr Ellis who had suffered sexual abuse when volunteering as an altar boy in the 1970s sued the Archdiocese of Sydney, an unincorporated association, and the Trustees of the Roman Catholic Church, which held the assets of the Roman Catholic Church of the Archdiocese of Sydney. The New South Wales Court of Appeal determined that:

    • the Archdiocese of Sydney could not be sued. As an unincorporated association it was not a legal entity and as such could not be sued in its own right;
    • a person or group within an unincorporated association can be held liable in tort or contract as principals provided they assumed an active or managerial role in which they exercised a palpable control over an activity at the relevant time. However the liability of such persons or groups within the unincorporated association is personal, not representative in nature;
    • the trustees were not liable for Mr Ellis' abuse simply because they held property for the church; and
    • consequently, Mr Ellis' claim failed.

    The effect of the legislative changes is that survivors of child sexual abuse will be able to sue unincorporated entities for compensation.:
  • Victoria, New South Wales and Queensland has introduced legislation imposing a duty of care to prevent individuals within their organisations from perpetrating child abuse. Further, in Victoria and New South Wales in proceedings concerning the breach of that duty of care, the organisation will be presumed to have breached that duty unless it can establish that it took reasonable precautions to prevent child abuse.
  • Western Australia, New South Wales, Victoria, ACT, Queensland, Tasmania and the Northern Territories have amended their respective Limitation Acts to remove the limitation period for child sexual abuse claims. Readers should be aware that the limitation period in Western Australia, Queensland and the ACT has been removed for sexual abuse claims only and excludes physical, psychological or emotional abuse claims. The legislation in Victoria, New South Wales, Tasmania and the Northern Territory is broader and removes the limitation period in relation to sexual abuse, physical abuse and psychological abuse.
  • Western Australia and Queensland are the only states that have amended their respective Limitations Acts to allow claimants to re-open previously settled causes of action. The amendments provide the court with the authority and power to grant leave to permit claimants to commence proceedings and to set aside any settlement agreements, if it is just and reasonable to do so. Once leave is granted, the settlement agreement will be void and a party to that agreement may not seek to recover money paid by, or for, the party under the agreement.
  • South Australia has not yet passed any legislation.

What insurers and insureds need to know

  1. Inconsistent legislation
    In view of the inconsistencies of the amending legislation throughout the country, organisations which operate across the country will need to become familiar with the different laws in different states.
  2. Removal of the Ellis defence
    In the states or territories which have removed the Ellis defence, survivors of child sexual abuse will be able to pursue compensation against unincorporated associations. In those states, it would be reasonable to expect an increase in child sexual abuse claims.

    Entities, which have responsibility for the care of children, would be wise to review their internal policies for the welfare of children to ensure their policies are compliant with any changes in the legislation and that they have maintained current "best practice" in safeguarding procedures.
  3. No limitation period but the Courts still have the power to permanently stay proceedings
    While limitation periods have been removed, the Courts still have discretion to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant so that a fair trial is not possible. In the case, Connellan v Murphy [2017] VSCA 116, the Court of Appeal of the Supreme Court of Victoria permanently stayed the plaintiff's action. In that case the plaintiff commenced proceedings in respect of sexual assaults which occurred 50 years ago. The Court of Appeal decided that the proceedings were oppressive as the defendant was being asked to defend himself at the age of 62 for actions he is alleged to have committed as a 13 year old. In view of the elapse of time, neither party was in a position to properly investigate the relevant surrounding circumstances or events. All the principal witnesses who were adults at the time were dead. Further, the Court voiced their concern about the fair determination of issues of causation and quantum in particular the investigation of how the plaintiff's chronic post-traumatic stress order commenced and developed as much of that investigation would be dependent upon the plaintiff's assertions of her subjective recollection of events.

    However, in light of the removal of limitation periods, in many of the states and territories, for claims concerning the sexual abuse of children, entities which have responsibility for care of children, need to put in place a document retention system which will retain relevant documents for decades. The documents which should be retained include but are not limited to the entity's policy for safeguarding the welfare of children, employment screening searches on its members of staff, documents evidencing the formal training of the staff concerning the safeguarding of the welfare of the children, incident and investigation reports and incident related correspondence and the applicable liability insurance policies.
  4. Claimant's may try to re-open settled claims

    The modifications to the Limitation Acts in Queensland and Western Australia allow claimants to apply to the court for leave to commence proceedings in respect of previously settled claims. Those claims may have been settled some time ago and the insurers which were on risk at the time of settlement may no longer exist. Entities should enquire with their current insurers how such claims would be treated by them under their current insurance policy and clarify to what extent they are required to disclose previous settlements.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions