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Victims of Child Abuse

A person who experienced abuse as a child may be eligible to participate in the National Redress Scheme, or may be able to pursue a civil claim for compensation, or both.

Child sexual abuse in institutional settings - the National Redress Scheme

In response to the recommendations contained in the Royal Commission into Institutional Responses to Child Sexual Abuse, the National Redress Scheme was created.

Since 1 July 2018, survivors of child sexual abuse which occurred in Australian institutional settings, such as schools, Children's Homes, churches, sports clubs, hospitals and others, can lodge applications to the Commonwealth National Redress Scheme for survivors of institutional child sexual abuse. For a survivor to be eligible to participate in the scheme, they must:

  • be an Australian citizen or permanent resident;
  • have been aged under 18 years at the time of the abuse and now be aged 18 years or over;
  • have experienced abuse where an institution was responsible;
  • have experienced abuse prior to 1 July 2018.

Other rules may apply to survivors who fall outside these categories, including survivors who are now incarcerated or where institutions have not agreed to join the scheme. Legal advice should be sought if there is any uncertainty as to eligibility.

This scheme provides eligible applicants with up to $150 000, the opportunity to access counselling and other services, and the opportunity for a direct response from the relevant institution on request. If a person has already received an amount of compensation in relation to the abuse, it may impact upon the amount they are entitled to receive under the Scheme.

Participating institutions have agreed to provide redress to eligible applicants. Institutions have until 2020 to join the Scheme, and institutions must agree to join the scheme in order for redress to be provided to those who experienced abuse in that particular institution. The National Redress Scheme website provides a search function allowing for participating institutions to be searched.

Specific provisions may apply where an institution no longer exists, or in cases where both a state government and non-government institution were responsible for the abuse. Further information on how the scheme applies in these circumstances can be located on the South Australian Attorney General's Department website

For an application to be processed, the relevant state and institution must have both joined the scheme. South Australia joined the scheme on 1 February 2019.

The scheme has been set up to run for 10 years and applications for redress can be made until 2027. An applicant can only make one application (although that one application may relate to multiple institutions). If an offer for redress is made, the applicant has a strict six month time frame to accept or reject the offer. Legal advice should be sought if there is uncertainty about a person's ability to participate in the scheme, for example, if they are incarcerated, or where the matter is complex.

A specialist community legal service has been established to provide survivors with free legal advice and information on redress options. Knowmore (Legal Service) has offices in South Australia, Victoria, New South Wales and Queensland and provides an outreach service to other States. Knowmore can be contacted on 1800 605 762, or more information on the service can be located on the Knowmore (Legal Service) website

For information on the National Redress Scheme, contact 1800 737 377. Further information about the scheme, including who can apply, how to apply, and information on support services available, can be found on the National Redress Scheme website

Additional information about the scheme can also be viewed on the Department of Social Services website

Support in relation to the scheme and making an application can be obtained from:

Nunkuwarrin Yunti - dedicated Aboriginal caseworkers can provide support and assistance to men and women who experienced institutional sexual abuse as a child. Contact Nunkuwarrin Yunti on 8406 1600 or visit the Nunkuwarrin Yunti website for more information.

Relationships Australia - through their service Elm Place, Relationships Australia (SA) provides information, advocacy, case management and counselling services to those affected by childhood sexual abuse in institutional care. Contact Relationships Australia (SA) on 1800 998 187 or visit the Elm Place website for more information.

Victim Support Service - can provide counselling, information, advocacy and assistance for those affected by childhood sexual abuse in institutional care. Contact Victim Support Service on 1800 842 846 or visit the Victim Support Service website for more information.

Child abuse - civil claims

Those who experienced abuse as a child but who are not eligible to receive support from the National Redress Scheme may consider pursuing a civil action instead. Depending on the circumstances, such an action could be founded in tort, in contract, under statute or otherwise, and compensation could be sought. Legal advice should be sought before commencing any civil action.

Under the Civil Liability Act 1936 (SA) an institution is an entity (whether public or private) that is responsible for a child and provides an activity, program or service of a kind that gives an opportunity for a person to have contact with a child, and does not include family [s 50A(1)].

Identifying the defendant

From 1 August 2022, the Civil Liability Act 1936 (SA) (Part 7A, Divisions 4, 5 and 6) allows for an abuse claim to be commenced against an unincorporated association through the nomination of an appropriate defendant, such as an associated trust, with sufficient assets to meet the potential liability. It also allows for an abuse claim to be commenced against a current office holder where a cause of action existed against a former office holder. The current office holder will not be held personally liable but may meet the liability with the assets of the institution or an associated trust. Finally, it allows for perpetual succession of unincorporated associations, thereby allowing for an abuse claim to be commenced against a successor institution following a change in structure such as a merger. From 1 August 2022, victims may be able to take action against unincorporated associations for historical abuse.

Setting aside settlements

From 1 August 2022, the Civil Liability Act 1936 (SA) allows for agreements to settle to be set aside by the court in limited circumstances. This may occur if the agreement occurred before the limitation period was removed on 1 February 2019, and the limitation period that previously applied had expired [s 50V(1)(a)]. See Time limits below. This may also occur if the agreement occurred before Part 7A commenced on 1 August 2022 and at the time of the agreement a claim could not be commenced against person or institution that would have been liable under Part 7A [s 50V(1)(b)]. See Identifying the defendant above.The Court will consider a range of matters in deciding whether to set aside an agreement [s 50W]. The court cannot set aside a deed of release signed in acceptance of an offer under the National Redress Scheme or an agreement relating to a relevant prior payment taken into account in the offer, nor a contract of insurance [s 50W(6)]. If set aside the agreement is void and any amount paid is not recoverable, but may be taken into account by the court in determining damages in a claim which is commenced and to which the agreement related.

Any person who wishes to set aside an agreement to settle in these circumstances should seek legal advice.

Duty of care held by institutions in negligence cases

From 1 August 2022, the Civil Liability Act 1936 (SA) sets out that institutions have "a duty to take all reasonable steps to prevent the abuse of a child by a person associated with the institution while the child is under the care, supervision, control or authority of the institution" [s 50E]. In addition, if a child is abused in these circumstances going forward, the institution is taken to have breached its duty unless the institution proves that it took all reasonable steps to prevent the abuse [s 50F]. Section 50F (3) sets out a number of matters that are relevant to deciding whether the institution took all reasonable steps to prevent the abuse. These provisions apply to any abuse that occurs after these provisions commenced.

Liability of institutions as employers

From 1 August 2022, the Civil Liability Act 1936 (SA) also sets out how institutions will be held vicariously liable for the abuse of a child by an employee (which may include a person who is akin to an employee) [s 50A(2)]. This may be the case where [s 50G (1)]:

  • the apparent performance by the employee of a role in which the institution placed the employee supplies the occasion for the abuse of the child by the employee, and
  • the employee takes advantage of that occasion to abuse the child, and
  • the abuse occurred while the child was under the care, supervision, control or authority of the institution.

In determining whether the employee was placed in such a role, the court will take into account whether the employee had one or more of the following [s 50G(2)]:

  • authority, power or control over the child,
  • the trust of the child,
  • the ability to achieve intimacy with the child.

This is based on the common law set out in the case of Prince Alfred College Incorporated and ADC [2016] HCA 37, which still applies [s 50G(3)].

Time limits

There is no time limitation for a person to commence a civil child abuse action in South Australia [see Limitation of Actions Act 1936 (SA) s 3A(1)]. This is regardless of whether the claim for damages is founded in tort, in contract, under statute or otherwise [s 3A(2)]. It extends to a claim for damages arising pursuant to section 23 of the Civil Liability Act 1936 (SA) relating to wrongful death, or a claim that has survived the death of the person for the benefit of their estate [s 3A(3)].

A child abuse action can relate to any of the following:

  • serious physical abuse; or
  • sexual abuse; or
  • psychological abuse related to sexual abuse or serious physical abuse.

See Limitations of Actions Act 1936 (SA) s 3A(5).

Legal help for civil claims concerning child sexual abuse

Since February 2022, the specialist community legal service, Knowmore (Legal Service), can also provide legal advice about redress and compensation options to survivors of child sexual abuse who are not eligible for the National Redress Scheme. Knowmore has offices in South Australia, Victoria, New South Wales and Queensland and provides an outreach service to other States. Knowmore can be contacted on 1800 605 762, or more information on the service can be located on the Knowmore (Legal Service) website

In relation to other (non-sexual) child abuse civil claims, preliminary legal advice is available from the Legal Services Commission's Free Legal Help Line on 1300 366 424. Further advice and representation may be available from Community Legal Services or from private lawyers. The Law Society of South Australia can provide referrals to suitable private lawyers, who may offer deferred fees in some circumstances.

    Victims of Child Abuse  :  Last Revised: Fri Jul 29th 2022
    The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.