End in sight for legal loophole in SA child abuse claims

15 November 2021

Under the Civil Liability (Institutional Child Abuse Liability) Amendment Bill, unincorporated organisations in South Australia will no longer be able to rely on a legal technicality – known as the ‘Ellis defence’ – to avoid being sued for historical child abuse.

Maurice Blackburn associate Ric Traini said this reform was recommended by the Royal Commission more than six years ago, and urged the Government to prioritise its passage through Parliament in the sitting scheduled for November 16-18.

“This proposed law is a long overdue but welcome step that would close an unfair loophole preventing survivors in South Australia from suing some organisations for the abuse they suffered,” Mr Traini said.

“Unfortunately, South Australia is the last major state to implement this important reform, with other states having already removed this longstanding barrier to compensation some years ago.

“Survivors in South Australia have waited long enough for the state to end this injustice. The Government needs to act with urgency to ensure the bill is implemented through Parliament before the end of this year.

“If the bill languishes in Parliament until next year, it will leave affected survivors in legal limbo, forcing them to endure further unnecessary delays in their bid to seek justice for the abuse they suffered.”

The Ellis defence is based on a 2007 court decision in a case by survivor John Ellis against the Catholic Church. The defence essentially protects an unincorporated organisation from being sued because they are not a legal entity.

“Survivors of historical abuse in South Australia have faced great difficulty in seeking justice while offending organisations have hidden behind the Ellis defence to avoid paying compensation,” Mr Traini said.

“We urge the South Australian Government to ensure it doesn’t lag behind other states in improving access to justice for survivors of historical child abuse.”

Media inquiries:

Chee Chee Leung at Maurice Blackburn Lawyers 0412 560 584 or cleung@mauriceblackburn.com.au

Practice Areas:

Childhood abuse