A NSW government agency is seeking to limit compensation payments to victims of child sexual abuse in custody by relying on laws restricting the ability of offenders to recover personal injury payouts from prisons.
In a letter to NSW Attorney-General Mark Speakman, plaintiff law firm Shine Lawyers said the Department of Communities and Justice had indicated it would argue that laws restricting payouts to offenders for injuries sustained in custody applied to all claims relating to child sexual abuse in juvenile detention between 1987 and 2019.
"We are writing to implore you to prioritise the needs of survivors of child sexual abuse and intervene," the firm said.
The restrictions were introduced in 2004 to rein in compensation claims against prisons, but the law has since been changed to carve out child abuse claims relating to alleged conduct after January 2019.
The general provisions which still apply to older child abuse cases prevent offenders or their families receiving damages for an injury in custody arising from a defendant's negligence, unless the injury resulted in their death or "permanent impairment" above a 15 per cent threshold.
Shine Lawyers said there was no indication in 2004 that the laws would apply to child sexual abuse.
Sheree Buchanan, an abuse law expert at Shine, said: "We believe it was never the intention [of legislators] for the pain and suffering of victims abused while in juvenile detention as children to be determined by this impairment threshold, but this is exactly what’s happening and it’s not right."
Ms Buchanan said many survivors represented by the firm "have had their entire lives ruined by disgusting perpetrators who ran correction centres, yet defendants are using this 15 per cent injury impairment threshold to prevent them from receiving the compensation they rightly deserve."
Victims of childhood sexual abuse suffered from a range of conditions including PTSD and anxiety, and may struggle to form relationships or use drugs and alcohol to deal with trauma.
These were all "terrible outcomes that can’t be measured on an impairment scale", Ms Buchanan said.
The firm says in the letter that similar restrictions do not apply in other Australian jurisdictions and the laws effectively punish victims twice because they had already been sentenced for their crimes.
Mr Speakman said: "Child abuse, wherever it occurs, is abhorrent.
"I have received a letter from Shine Lawyers and have asked the Department of Communities and Justice to provide me with advice on the issues raised."
Opposition attorney-general spokesman Paul Lynch said: "These provisions seem to result in manifest injustice. They give rise to what seem entirely unintended consequences.
"Government departments should not be relying on these provisions in this way. The government should review the legislation without delay."
The state government has been responsive to calls to improve access to justice for survivors of child abuse and implemented all of the recommendations of the Child Sexual Abuse Royal Commission's report on redress and civil litigation.