LIMITATION AMENDMENT (CHILD ABUSE) BILL 2016

9 March 2016

2nd Reading Speech


The Hon. ADAM SEARLE (Leader of the Opposition) [3.37 p.m.]: I lead for the Opposition in this second reading debate on the Limitation Amendment (Child Abuse) Bill 2016. The Opposition supports the bill. That should be a surprise to no-one, given the Opposition introduced a similar bill last year. The current Attorney General spoke against that bill and the Government voted it down by the narrow margin of 39 votes to 36 in the other place.

The object of the bill before the House is to amend the Limitation Act 1969 to ensure there is no limitation period for an action for damages that relates to death or personal injury resulting from child abuse. The term “child abuse” is defined to mean abuse perpetrated against a person, when the person is under 18 years of age, that is sexual abuse, serious physical abuse or other abuse perpetrated in connection with sexual abuse or serious physical abuse. The Opposition does not believe that the current exceptions to limitation periods under the Limitation Act provide a sufficient access to justice for victims of child sexual assault or abuse. We acknowledge and agree with evidence before the Royal Commission into Institutional Responses to Child Sexual Abuse that indicates that many victims have faced a number of barriers to pursuing civil claims over the years, and that of those who have, many have found the process of civil litigation to be traumatic and difficult.

One of the greatest hurdles to pursuing a civil claim for child sexual abuse is the application of the Limitation Act, with which most lawyers who have practised law would be familiar. We understand and agree with the significant difficulties experienced by victims of child sexual abuse in attempting to rely on the exceptions in the Limitation Act. We note also the royal commission’s interim report which found that on average it takes a victim 22 years to disclose sexual abuse. We believe it is well documented that there are many reasons why victims of child sexual abuse do not report or disclose abuse for many years, if at all, including shame, an inability to recognise the abuse was a crime, and a lack of access to therapeutic services to help them emotionally prepare to seek redress.

The Opposition notes the submissions, including from the Women’s Legal Service, supporting an exemption in the Limitation Act for all matters involving claims of sexual assault regardless of the age of the victim at the time of the assault. We note also the support of that group and other groups for an amendment to recognise the shame and distress caused to victims of sexual assault and the consequent delays in reporting to police and ultimately the taking of any civil action. However, the bill does not go that far. It deals with child sexual abuse only. One of the curious effects of the bill may be that where a person was the subject of systematic and ongoing abuse and mistreatment both before and after their eighteenth birthday, this bill will lift the limitation restriction for those acts that occurred before the victim turned 18 but will keep the barrier in place for assaults and abuse post the age of 18.

We understand that this bill is congruent with the explicit recommendations of the interim report of the royal commission, but we think that there is an area where there may be further fruitful attention directed by the Government. We earnestly entreat the Government to examine this area closely because it would be a distressing and artificial situation if only partial justice were made available to people who have suffered as a result of terrible and traumatic behaviour by those in positions of trust and authority. Imagine a situation where abuse goes on over an extended period—whether it is five or 10 years—and the victim finally manages to become resilient enough to seek redress, including in the courts, but only part of their claim can be entertained as a result of this bill.

The bill lifts the barrier for acts that occurred before the victim turned 18 but leaves the current restrictions in the Limitation Act in place post the age of 18. I am happy to be wrong in my reading of the bill—nothing would make me happier than to be wrong about that analysis—but I feel that while this is a good step in the right direction there is a problem where abuse covers a number of years, including post the victim turning 18. Returning to the main part of my contribution, there are of course a number of reasons to justify limitation periods in the law. There are benefits to resolving civil proceedings as near as possible to the time of any alleged injury. It avoids what might otherwise be problems with evidence and the difficulty of deciding cases well after the events occurred.

Limitation periods provide certainty on risk to defendants and insurers. On the other hand, many survivors of institutional childhood abuse simply are not able to disclose the abuse until many years later, as I have already indicated. The royal commission report referred specifically to cases in this State where claims could not be pursued because of limitation periods or could be pursued only after lengthy time-consuming and expensive litigation. The report referred to cases arising out of the Parramatta Training School for Girls, the Institute for Girls at Hay and Bethcar Children’s Home. The report also referred to the case of John Ellis. The royal commission report also cited significant stakeholders support for the recommendations it eventually made, which are largely included in this bill.

There are a number of real problems with limitation periods for survivors of child sexual abuse. Often, a large amount of time and effort is expended arguing about the limitation period and whether it should be extended. This happens in particular because victims of child sexual assault usually take very long periods to disclose what has occurred. That is now so widely known and accepted it should not need elaboration, and it is embodied in the interim report of the royal commission. It also suggests that the system of limitation periods and extensions that currently exist has developed without much regard for these types of circumstances. They would more typically have developed in the context of a range of other types of claims. As one survivor told the royal commission, the current limitation regime is designed for someone tripping over in Kmart, not for victims of child sexual abuse.

As the royal commission report noted, limitation periods are a significant and sometimes insurmountable barrier to survivors pursuing civil litigation. As a practical matter, there does seem to be a far lesser reliance by defendants in this jurisdiction on pleading limitation periods than in the past. The Government has made some announcements about its attitude to this. However, whether limitation provisions are relied upon should not simply be decided upon by the policy of a defendant; they should be settled as a matter of principle and a matter of law. The Opposition thinks establishing this principle in legislation is vitally important. When the shadow Attorney General in the other place introduced his bill last year, he noted the Government’s policy and that non-reliance on the limitation period by government institutions was occurring. But that is an unsatisfactory way to proceed, and so we believe that this is a good amendment. The genesis of this bill is the royal commission and its recommendations, which included:

        85. State and territory governments should introduce legislation to remove any limitation period that applies to a claim for damages brought by a person where that claim is founded on the personal injury of the person resulting from sexual abuse of the person in an institutional context when the person is or was a child.

 

        86. State and territory governments should ensure that the limitation period is removed with retrospective effect and regardless of whether or not a claim was subject to a limitation period in the past.

 

        87. State and territory governments should expressly preserve the relevant courts’ existing jurisdictions and powers so that any jurisdiction or power to stay proceedings is not affected by the removal of the limitation period.
        88. State and territory governments should implement these recommendations to remove limitation periods as soon as possible, even if that requires that they be implemented before our recommendations in relation to the duty of institutions and identifying a proper defendant are implemented.

 

The Victorian Government adopted these reforms expeditiously last year and the same should have occurred in this State in accordance with the royal commission report, but it did not. However, this bill does retain the jurisdiction of the court in relation to stay of proceedings and it also has a retrospective application. We note that the royal commission report included broader issues such as redress, which was touched on by the Attorney in her second reading speech. I note that both State and Federal Labor are on the record supporting a national redress scheme. The arguments in favour of that proposition, rather than relying on a State by State or jurisdiction by jurisdiction approach, are clear and overwhelming. We note the Federal Labor Opposition has committed $33 million to fund a national redress scheme. That position was reached in consultation with the Labor Opposition in New South Wales.

I note with regret the apparent reluctance of the current Federal Government to pursue a national scheme. An issue for the Federal Government will arise if there is the pursuit of a separate State by State scheme, which is likely to reveal differences in the quantum of amounts that can be recovered. That would give rise to injustice, particularly in this difficult area where there is belated recognition and even more belated action. It would be adding insult to injury if there were to be a patchy approach to the issue of redress. We hope that the Federal jurisdiction, whoever is in government, will sensibly and appropriately square up and address this issue on a national basis.

However, that is a debate for another time and possibly another place. Labor believes that removing time limitations of the kind that are embodied in the bill is a matter of justice, although significantly delayed. Labor wholeheartedly supports the bill, in so far as it goes. I know there are likely to be amendments dealing with the issue of “serious” injury. I indicate that the Opposition will be supporting those amendments. We also ask the Government to look closely at the drafting of the bill, in particular, where abuse covers a number of years, including both before and after the age of 18. It is our belief that this bill will only lift the limitation in relation to the pre-18 year-old victims.

Mr David Shoebridge: That is undoubtedly the case.

The Hon. ADAM SEARLE: I acknowledge that interjection. Although we are not able to deal with that issue today, all reasonable members in this place would support remedying that problem in the bill in its current form. With those comments, the Opposition will be supporting the bill.