Access to superannuation for victim/survivors of child sex abuse

The Federal Government has released draft legislation to enable victim/survivors of child sex assault to access their perpetrators superannuation. This is a legislative change that ASL has and other advocates have long campaigned for and was first contemplated some years ago.

Unfortunately, access under the proposed legislation will only be facilitated where there are actual court orders requiring a perpetrator to pay compensation (i.e. compensation orders under s 85B of the Sentencing Act1991 (Vic) (‘Sentencing Act’) or by way of judgment with respect to a common law claim for damages).

The legislation, if passed, would create a mechanism enabling the release of certain amounts from a perpetrator’s superannuation funds, only where the perpetrator has been convicted or found guilty of certain child sex offences to a criminal standard, to satisfy compensation orders which have remained unpaid for 12 months or more.

To initiate the release process, victim/survivors that meet the application criteria would need to apply to the Commissioner to obtain the perpetrator’s superannuation information. Receipt of this information would enable claimants to apply to the Court for the Commissioner to facilitate the release of monies from a perpetrator’s superannuation interests (a perpetrator contributions release order).

Whilst this proposed reform is welcome, we are aware that in common law claims for damages, it is rare for claims to go to judgment. Well over 95% of cases settle out of court at any given time.

Having said that, certainly in Sentencing Act applications, this process will open up avenues for compensation recovery which have not previously existed. It is not yet clear whether a victim/survivor will be able to apply to the Court to obtain the perpetrator’s superannuation information before making a Sentencing Act application. 

Currently, while it is not a condition to make a Sentencing Act application, it is common for claimants to seek restraining orders over the perpetrators property or funds. This is an onerous process and dependent, to a large extent, on the co-operation of Victoria Police and the Office of Public Prosecutions being prepared to apply for the relevant orders. At present, the draft legislation notes that if a restraining order exists over an asset of the perpetrator, the victim/survivor cannot apply to have their court order paid from the perpetrator’s superannuation interests.

Angela Sdrinis Legal specialises in Sentencing Act applications, having won the highest award of compensation to any survivor of sexual assault to our knowledge. This judgment has been appealed by the perpetrator. The matter is due to be considered by the Court of Appeal in the coming months.