The Queensland Parliament has announced proposed changes to state legislation that will allow victims of child sexual abuse, which occurred in an institutional setting, to bring a claim against that institution irrespective of when the abuse occurred.
If passed, the proposed amendments to the Limitations of Actions Act 1974, the Personal Injuries Proceedings Act 2002, Civil Liability Act 2003 and the Civil Proceedings Act 2011 will retrospectively abolish the current limitation periods. These periods apply to claims for damages brought by a person founded on a personal injury from sexual abuse as a child in an institutional setting. These amendments adopt the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse in its interim Redress and Civil Litigation Report released on 14 September 2015. Both New South Wales and Victoria have already implemented similar changes, with wider provisions encompassing non-institutional sexual and physical abuses.
Currently, victims of child sexual abuse in Queensland have three years from the date of the offence or until they are 21 (whichever limit expires first) to bring a claim against an institution whose care they were under at the time of the abuse. In effect, this means many victims of childhood sexual abuse are precluded from seeking compensation because the limitation period expires. Conversely, the Commission's Report notes that institutions that have sought to conceal the sexual assault of children in their care have been able to evade the legal consequences of their concealment.
During a public briefing at Parliament House on 31 August 2016, the Legal Affairs and Community Safety Committee confirmed the amendments are solely directed at removing limitation bars to institutional child sexual abuse claims and will not broaden or amend the scope of liability. However, the amendments will allow previously decided matters to be reopened where the judgement was made on the basis that the limitation period had expired. Further, the amendments will also allow the estates of deceased victims to bring a claim.
While the abolition of limitation periods is confined to sexual abuse that has occurred in an institutional setting, an "institution" is defined broadly by s 11A(6) of the Limitation of Actions (Institutional Child Sexual Abuse) and Other Legislation Amendment Bill 2016 (the Bill) to include "any entity, even if no longer existing, whether or not incorporated, that provides or provided activities, facilities, programs or services of any kind that gives or gave an opportunity for a person to have contact with a child".
The Court will also retain its ability to permanently stay proceedings where a fair trial would be unworkable. The Bill's Explanatory Notes state that the current caps on damages will also remain unaffected.
Ramifications
Institutions should expect to see an increase in claims being brought. While the structure of the legislative framework is designed to encourage settlements, it is expected that the amounts of damages to be claimed, the associated legal costs, the associated administrative demands on affected agencies and the workload of the courts will still be substantial.
The Royal Commission's Report acknowledges that removing the limitation period with retrospective effect will also have an impact on some insurers and reinsurers, but did not find on the evidence before it that such an impact would be significant. The Committee could not quantify the cost to government and non-government agencies as a result of the changes.
Looking ahead
The proposed amendments contained in the Bill are expected to receive bi-partisan political support and be enacted by 2017.
The Member for Cairns, Mr Rob Pyne MP, has also introduced the Limitation of Actions and Other Legislation (Child Abuse Civil Proceedings) Amendment Bill 2016 as a private members bill. This Bill contains similar amendments but seeks further changes, including the removal of the limitation period from all child abuse claims, sexual or otherwise, and to abuse suffered outside the institutional context.
The Committee will hold further public hearings at Parliament on 26 September and 12 October 2016. Submissions on both Bills will be accepted until 16 September 2016.
The Commission Report recommends that, if faced with an increase in claims, institutions should take steps to limit expensive and time-consuming litigation by offering effective redress and moving quickly and fairly to investigate, accept and settle meritorious claims.
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