On 4 May 2016, the Attorney-General directed Commonwealth
Agencies to refrain from pleading a limitation period defence to
claims brought by survivors of child sexual abuse.
Direction further extends to prohibiting Commonwealth Agencies
from opposing any application for an extension of the limitation
period for a time-barred child abuse claim. However, and relevantly
for Agencies that are already involved in these types of claims,
the Direction does not apply to any proceeding
whereby a Court has already determined the
limitation issue—both in the context of a successful defence
to a claim based on the expiration of the limitation period or a
failed application for an extension of a limitation period in a
child abuse claim.
The Legal Services Direction will have far-reaching consequences
for Agencies responsible for minors in an institutional context,
regardless of whether the institution itself no longer operates and
whether potentially time-barred claims arising from abuse are
presently on foot (but, importantly, not yet determined by the
The Royal Commission into Institutional Responses to Child
Sexual Abuse is now into its fourth year and its impact on our
legal system, and indeed on our community, has been palpable.
Following the release of the Royal Commission's final report on
redress and civil litigation on 14 September 2015, we have seen NSW
(in March of this year) abolish the limitation period for survivors
of child abuse (including sexual abuse), bringing the State into
line with Victoria, which abolished the limitation period for these
claims in July 2015. There is now pressure in Queensland to follow
suit. With more than 18 months still remaining for the Commission
to complete its task, the pressure on the remaining states and
territories will continue to intensify.
The Royal Commission has mooted a figure in excess of 65,000
potentially unreported claims for child sexual abuse across a range
of institutions within Australia. With the limitation period in
this context often proving the primary obstacle for a claimant to
overcome, the Direction of the Attorney-General may see an opening
of the flood gates of previously unreported claims against
Commonwealth Agencies or claims previously made but not pressed
through the legal system.
Corporate Commonwealth entities need to be aware of the
Direction and be prepared for a potential influx of claims. The
Attorney-General also provided approval in the Direction for
non-corporate Commonwealth entities to not plead a defence to a
time-barred child abuse claim on the basis of expiry of the
relevant limitation period, and similarly to not oppose an
application for an extension of a limitation period in these
The Direction will end on 30 April 2019. By that stage, it can
reasonably be expected that the states and territories individually
will have reached a conclusion on the necessity, or otherwise, of
the various statutory time limits for starting proceedings in
claims involving allegations of child sexual abuse. Until then, it
will be with interest that we watch the Commonwealth space.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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