Justice vs compensation: what’s the difference and why it matters
To understand historical institutional abuse claims in Australia, it helps to understand the difference between criminal justice and civil justice, and how that difference shapes the legal process for survivors.
The goals of criminal and civil justice
Criminal law protects the public interest by prosecuting conduct that is a crime against society, with penalties that can include imprisonment.
Civil law resolves disputes between individuals or organisations. In a compensation claim, its aim is to put the person who was harmed back in the position they would have been in had the harm not occurred, so far as money can do that.
| Criminal case | Civil compensation claim | |
|---|---|---|
| Purpose | To punish crime and protect the public | To compensate the person harmed |
| Parties | The prosecution (for the State) and the accused | The plaintiff (the survivor) and the defendant (often the institution) |
| Who decides to proceed | Police and the prosecutor | The survivor |
| Standard of proof | Beyond reasonable doubt | On the balance of probabilities |
| Outcome | Conviction and sentence, or acquittal | Compensation, usually through a confidential settlement |
Proceedings
In a criminal matter, the parties are the prosecution, representing the State, and the accused. The prosecution must prove the accused’s guilt, and the accused may defend the charges. The survivor is a witness, not a party, and does not control whether the case goes ahead.
In a civil case, the parties are the plaintiff and the defendant. The plaintiff alleges that the defendant caused them harm or loss, and the defendant responds. In an institutional abuse claim, the survivor is the plaintiff and directs the claim, including whether to accept a settlement.
Burden and standard of proof
In criminal proceedings, a conviction requires the prosecution to prove its case beyond reasonable doubt, a high threshold that protects the presumption of innocence (Judicial Commission of NSW; see also the Rule of Law Education Centre for a plain-English guide).
In civil proceedings, the plaintiff must prove their case on the balance of probabilities, meaning their version is more likely than not to be true (Evidence Act 1995 (NSW) s 140).
You don’t need a criminal conviction to claim
Because the two systems are separate, a civil claim does not depend on a criminal case. You do not need to have reported the abuse to police. A claim can proceed where no one was ever charged, where the person who abused you has died, or even where a criminal case ended in an acquittal, because the civil standard of proof is lower.
A civil claim is also usually brought against the institution, not only the individual. Read more about how institutions are held liable for child sexual abuse.
Compensation and justice
In civil matters, courts can award compensation to acknowledge the harm a defendant’s conduct caused, with the aim of restoring the plaintiff so far as money can.
For many survivors of historical abuse, though, justice also means recognition, accountability, and closure, particularly where the abuse has caused lasting psychological harm. Where a criminal case is not possible, or does not go to trial, a civil claim can still hold an institution to account and vindicate a survivor’s rights. In appropriate cases, a settlement can also include a written apology from the institution.
Time limits and pathways
In New South Wales, there is no time limit for civil claims arising from child sexual abuse or serious physical abuse of a child (Limitation Act 1969 (NSW) s 6A). In most cases, that means a claim can be brought however long ago the abuse happened. A court can still stop a claim in exceptional cases where a fair trial is no longer possible, so individual circumstances matter. See our guide to limitation periods for historical abuse claims.
Survivors of institutional child sexual abuse may also consider the National Redress Scheme, which offers a payment, counselling, and a direct personal response from participating institutions (National Redress Scheme; Services Australia). For most survivors with a viable civil claim, though, the Scheme works more in the institution’s favour than theirs. The maximum payment is $150,000 and is rarely reached, and accepting a payment permanently extinguishes your right to a civil claim against the institution. Applications close on 30 June 2027, so get independent legal advice before you apply.
Speak to us confidentially
If you would like to understand which pathway suits you, our institutional child sexual abuse lawyers offer a free, confidential first conversation that does not commit you to anything. Call +612 9283 5599 or use the form below.
