Limitations of Actions (Child Sexual Abuse) Amendment Bill

Second Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (15:38): I am absolutely delighted to introduce the Limitation of Actions (Child Sexual Abuse) Amendment Bill 2018, which amends the Limitation of Actions Act 1936 and abolishes the limitation period for claims for compensation for victims of child sexual abuse.

This bill addresses observations made in the Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation Report released in September 2015. The royal commission found that the existence of a limitation period creates significant barriers for survivors of child sexual abuse and operates unreasonably to deny victims access to justice. The Limitation of Actions Act 1936 currently sets a limitation period of three years for bringing a common law action in personal injury. For a person who suffered abuse as a child, this means that an action must be commenced by his or her 21st birthday.

This important piece of legislation expands on the bill I introduced in September 2016, which was integral for victims of institutional child sexual abuse both at that time and now. The one major difference between the former private member's bill and the one I lay before you today is that this government bill takes into account all victims of child sexual abuse, not just those who have fallen victim to predatory behaviour in our government and non-government institutions.

On that note, I commend the work undertaken by the Hon. John Darley MLC of another place on a bill with the same name in 2017. As I mentioned in 2016 when introducing the former legislation, it is a credit to South Australia that we advanced inquiries in relation to institutional child sexual abuse many years ago. This began with the Mullighan inquiry, for which I wish to recognise the late former Supreme Court judge, His Honour Ted Mullighan, and more recently the Nyland royal commission, recognising the work of former Supreme Court judge, Her Honour Margaret Nyland.

From the Mullighan inquiry, we saw the creation of an ex gratia payment scheme for survivors of institutional sexual abuse while in state care to seek compensation for the abhorrent crimes committed against them. This ex gratia scheme is still in operation and, since 2009, the total of ex gratia payments made pursuant to the guidelines is about $1.74 million. As at 4 June 2018, the Crown Solicitor's Office has received 213 applications for ex gratia compensation under the guidelines. Offers of compensation have been made to 127 applicants, and 115 applicants have accepted their offers. Payments have been made to all applicants who have accepted their offer.

This is a government of action and progress in acknowledging the survivors of child sexual abuse. Only last week did this government announce our participation in the commonwealth's National Redress Scheme for victims of child sexual abuse. By joining the National Redress Scheme, the state government is taking responsibility for and helping to heal the pain caused by the sexual abuse of children in government and non-government institutions. This ensures that South Australia joins the majority of the country in recognising the importance of a nationally consistent approach to the devastating impact of institutional child sexual abuse.

Importantly, this scheme will go beyond what is already provided by the ex gratia scheme as non-government institutions will be able to participate and South Australia will also assume 'funder of last resort' responsibilities in appropriate cases where jointly responsible institutions are unable to pay redress due to having ceased operation. On Wednesday last week, the Catholic Church confirmed their commitment to opt into the scheme as a non-government institution. Similar announcements followed the next day from the Anglican Church, Salvation Army, Scouts Australia and the YMCA.

For survivors, this is incredibly encouraging. I place on record my appreciation for these organisations coming into the scheme and committing with the resolution they have passed. Beyond these claims made through an ex gratia or redress scheme, many survivors do, however, wish to make a civil claim through the courts. This is a right which victims have and which they should still be afforded, despite the existence of other redress or compensation schemes, if they choose to use this approach instead.

The reality is that, for many of the victims, the accused party is impecunious, is no longer in the state or is dead, so the opportunity for them to take civil action with any jot of a chance of recovery is, of course, slim. In my previous comments on this legislation, I have been critical of the level of payments made under the ex gratia scheme administered by the government. I maintain that a survivor, should they choose, ought to be able to attend court and make a civil claim against a government or non-government institution.

Here is the situation: if a child is sexually abused at a young age and goes through their teenage life and attains the age of 18 years, they have only three years from their 18th birthday to make a claim against the alleged perpetrator of that abuse, or someone who would otherwise be responsible and should have acted to protect the child in those circumstances. This is simply unacceptable. There are very good reasons that we have limitations on actions. However, in many circumstances, victims may never feel the courage or motivation to come forward against a perpetrator, let alone at the young age of 21. Significantly, a number of victims do not come forward until they know that their perpetrator has died, and they feel free enough to make that disclosure.

What has been identified—and this was acutely considered in the Royal Commission into Institutional Responses to Child Sexual Abuse—is that very often a person who is the subject of abuse as a child does not disclose or even recognise the significance of that abuse until they are well into adulthood. Sadly, what can happen, particularly in circumstances of child sexual abuse, is that the memory and recall can be suppressed, or not really dealt with or acknowledged.

A survivor should not feel pressured to deal with certain events without proper preparedness or professional assistance. There are many reasons why children keep this secret to themselves. We know that is not the right thing to happen. We know that the abuse should not occur in the first place. We know that they should feel free and comfortable to be able to tell somebody, and we know that they should have relief and protection. We know that if they are treated badly, and there is continuing pain or injury, there should be necessary treatment—whether that be medical, psychiatric or psychological—and they should be given every opportunity for that to occur.

I refer members to the discussion from the Royal Commission into Institutional Responses to Child Sexual Abuse. In recommendations 85 to 88, in its Redress and Civil Litigation Report, the commission recommended that all states and territories take immediate steps to remove the limitation period for cases arising from institutional child sexual abuse. This is the commitment the then Liberal opposition made to South Australians.

We committed to introducing legislation to remove the limitation period for victims of institutional child sexual abuse within the first 100 days in government, and this is what we are doing. The bill achieves this result but applies it to all victims of child sexual abuse, not merely to those who suffered abuse in an institutional setting, as I have mentioned previously.

I now turn to particular aspects of the bill. It inserts a new section 3A of the Limitation of Actions Act 1936, which provides that an action for damages relating to the death of or personal injury to a person resulting from child sexual abuse may be brought at any time and is not subject to any limitation period. This includes limitation periods applying to claims brought in tort, in contract, under statute and otherwise.

Although the bill permits such actions to be brought at any time, it does not limit the court's inherent, implied and statutory jurisdiction or its other powers. The court will retain the power to summarily dismiss or permanently stay proceedings where there has been an abuse of process, or where the lapse of time affects the defendant's case, such that a fair trial is not possible.

The bill also contains transitional provisions to clarify its application in cases where a limitation period on the cause of action has expired prior to the commencement of the bill. In particular, schedule 1 of the bill provides that section 3A applies to an action or a cause of action that accrued before or after the day on which section 3A comes into operation, including where the cause of action was statute barred prior to section 3A coming into operation. Further, an action may be commenced even though:

  • another action has been started but not finalised before the commencement of section 3A;
  • another action has started but discontinued before the commencement of section 3A;
  • a judgement was previously given on the ground that a limitation period applying to the cause of action has expired; or
  • an action was dismissed on the ground that a limitation period applying to the cause of action had expired.

In cases where there is a previous judgement on the action or an action has been dismissed on the ground that a limitation period has expired, the permission of the court is required before a new action may be commenced. The court may grant permission for a new action to be commenced if satisfied that it is just and reasonable to do so. In granting permission for a new action to be commenced, the court may make any order it considers to be necessary for the action to proceed or otherwise appropriate in the circumstances.

As recognised by the Royal Commission into Institutional Responses to Child Sexual Abuse, it is critical that those survivors have the opportunity to come forward into adulthood and seek some redress where appropriate. Although this government is providing an option through access to the National Redress Scheme by removing the limitation of actions period, survivors who may have experienced abuse outside of an institutional context will still have an option to seek redress and compensation through the courts. This is a right that should not be denied to them. We ought to do everything possible to ensure these children have access to compensation and are not denied when a very latent disclosure comes to the fore for which they ought to have some redress.

As to other jurisdictions, New South Wales and Victoria have previously had limitations and they have passed legislation to abolish these. The governments in these large jurisdictions have listened—and they have acted. Soon after the introduction of the former private member's bill, Queensland also followed suit. Queensland, like the Liberal opposition, has obviously read the report and accepted the argument and has acted to ensure these children do not miss out when the issue is disclosed at a later date.

A matter that was concerning to me both in 2016 and now is that we often heard from the former government that they were sympathetic to the circumstances, that they understand, that they are model litigants and that they are prepared to act to protect and provide for children who have been so badly treated in these circumstances. These were hollow promises which were never followed through in supporting this important legislation.

This government, in stark contrast to the former, is implementing decisive change, and we are extremely proud to do so. We do not want to have a situation where a government delays providing justice to victims of child sexual abuse whose claims would be precluded. We want to ensure that victims do not need to beg the court to look at the matter in years to come.

It is true that there is a power under the legislation for a court to extend the time or to grant permission to be able to apply out of time. There is a process for that but, again, it is a just another hurdle—insurmountable for some—over which the applicant has to jump before their file will even be considered by the court. As I have said in this place previously, I would urge those opposite not to put their heads in the sand on this matter. A number of new members have been elected and I seek that they act on this and enable this important legislation to pass and to pass swiftly.

The Limitation of Actions (Child Sexual Abuse) Amendment Bill 2018 is an important step towards addressing decades of injustice and indifference shown to victims, both institutional and otherwise. Put simply, removing the limitation period lifts a barrier that is patently unfair. I commend the bill to members, and I table a copy of the explanation of clauses.

Debate adjourned on motion of Ms Cook.