Page 2075 - Week 07 - Tuesday, 2 August 2016
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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 where the person is or was a child. This bill adopts these recommendations in full.
Through extensive consultation, the royal commission has concluded that “limitation periods are a significant, sometimes insurmountable, barrier to survivors [of child sexual abuse] pursuing civil litigation” for damages for their injury and loss. Typically a survivor might not come forward with their story of abuse for many decades. There are many other barriers to justice for survivors of child sex abuse which the royal commission is exploring, and which may require a range of social as well as legal changes to overcome.
Turning to the provisions in the bill, part 2 and 3 of the bill contain amendments to the Civil Law (Wrongs) Act 2002 and the Limitation Act 1985 which remove the existing limitation periods for personal injury claims. There will no longer be any limitation period for a cause of action that substantially arises from sexual abuse which the person was subjected to when the person was a child in an institutional context. These amendments will allow these survivors to bring claims no matter when the abuse occurred, even if it was decades ago.
At this stage it is clearly apparent that the limitation periods across Australian statute books are a concrete and inflexible barrier to stop any action by these survivors to seek compensation for the damages that they have suffered. The ACT government has decided to act to remove this barrier by removing the existing six-year time limit for bringing an action to seek compensation for sexual abuse suffered by children in institutional contexts.
The change will apply to liabilities that arise in tort, or through contract or any other cause of action including breach of statutory duty, and will have immediate and retrospective effect allowing historical claims, which may have been previously barred, to be brought forward as soon as this law commences.
The bill expressly preserves the courts’ relevant existing jurisdictions and powers to stay proceedings, for example where the defendant is unable to obtain a fair trial. This provision reflects recommendation 87 of the royal commission report.
Institution and institutional context are concepts defined broadly in the bill and will cover a wide range of people in both public and private bodies, organisations, or entities of any kind whether incorporated or not. It will cover, for example, non-government organisations or businesses that provide activities, facilities, programs or services through which adults or officials of an institution have contact with, or responsibility for, children. This will also mean that the actions of employees, contractors and volunteers for the institution will also be covered.
Sexual abuse is widely defined to include any offence or misconduct of a sexual nature and will also include witnessing the sexual abuse of another person.
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