Survivors can now access their offender's superannuation in limited circumstances

Survivors of sexual assault where the offender has been convicted have for some time been able to apply to a court for compensation to be ordered to be paid by the perpetrator. (s85B of the Sentencing Act 1991 (Vic) and s68 of the Sentencing Act 1997 (Tas). Similar legislation exists in other jurisdictions.) Unfortunately, perpetrators will often have transferred assets or if assets are not restrained, trying to extract money from uninsured individuals can be a costly and fruitless exercise.

On 13 December 2023, the Federal government announced it would close a loophole which allows child sexual abusers to deny their victims and survivors compensation through shielding their assets in superannuation.  The Treasury Laws Amendment (The Survivors Law) Bill 2026 received Royal Assent on 20 May 2026 and is now law (the Act).

This measure enables victims and survivors of certain child sexual abuse offences with unpaid compensation orders of 12 months or more to apply to the ATO for visibility of the offender's additional personal or salary sacrifice superannuation contributions. Victims and survivors can then apply for a court order from the Federal Circuit and Family Court of Australia to access the offender's additional superannuation contributions.

Following the making of an order, the ATO will facilitate any release of monies with superannuation providers and pay any released amounts directly to the victims and survivors. Further, eligible victims and survivors can apply to the ATO for visibility of the offender's additional personal or salary sacrifice superannuation contributions.

For access to information and funds under the Act, the perpetrator will have to have been convicted of a specific child sex offence referenced in the legislation. If the information is provided, the victim may apply to the Federal Circuit and Family Court of Australia (Division 2) for an order authorising the Commissioner to require the release of amounts from the perpetrator’s superannuation interests.

The request must be made in the “approved form” and accompanied by a statutory declaration and evidence that the perpetrator has been convicted of a specified offence, a copy of the compensation order and the date on which the victim alleges the conduct constituting the offence first occurred.

This is an excellent and long-awaited development. Unfortunately, it will only apply in restricted circumstances where compensation orders have been made but this option highlights the importance of survivors making applications for compensation under the Sentencing Act even when it appears that the offender has no visible assets given that most working people in Australia now have superannuation.