Alister Henskens portrait
Alister Henskens portrait

Limitation Amendment (Child Abuse) Bill 2016

Image of an upset child

Mr ALISTER HENSKENS (Ku-ring-gai) [10.34 a.m.]: I speak to the Limitation Amendment (Child Abuse) Bill 2016. Limitation periods have a legitimate purpose. When court proceedings are delayed, memories fade, evidence is destroyed and the quality of justice is diminished, increasing the capacity for miscarriage. However, under the Limitation Act 1969 it has always been recognised that limitation periods need to be moulded to fit the circumstances of particular cases. That is not always the way in which limitation periods operate—for example, some limitation periods commence to run whether the person who has an action knows about the cause of action or not.

Cases with regard to breach of contract, for example, commence to run from the breach and not from when the plaintiff knows about the breach. But in the case, for example, of disability under section 52 of the Limitation Act, the running of the limitation period is suspended for the duration of the disability. Similarly, in the case of equitable fraud or conversion of trust property under section 47 of the Limitation Act the usual six-year limitation period does not start when the cause of action first accrues, but instead commences from the first discovery of the facts giving rise to the cause of action. The limitation period is 12 years and not six years, as it is for other causes of action. Also, under section 55 of the Limitation Act in cases of concealed fraud or deceit the limitation period is suspended against the fraudster and does not commence until the cause of action is first discovered or may with reasonable diligence have been discovered.

The provisions that I have referred to are significant in the context of this bill because they show that the legislative theory behind the Limitation Act 1969—which, from recollection, was enacted after a detailed Law Reform Commission report on amendments to the limitation law—recognises that in the context of limitation periods special consideration needs to be given to the following circumstances: firstly, disability or vulnerability; secondly, concealment of intentional acts of harm; and, thirdly, circumstances where civil causes of action arise from intentional criminal acts.

This bill importantly modernises the 1969 Act to recognise something that was not well understood or widely recognised by the Parliament in 1969, which is the prevalence of child abuse in our community. The Commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse has shone a light on what people who have dealt with the vulnerable in our community have known for some time—namely, that child abuse is regrettably widespread and also that child abuse has a devastating impact on the lives of the victims. As a lawyer I did not practice very much in the areas of tort law other than the law of defamation, and as a young barrister I was frequently confronted with cases involving damaged adult lives as a consequence of prior periods of child abuse in a person's life. I have sat across a table in my chambers as a client explained that his drug dependency was an attempt to dull the ever present pain of the memories of abuse at the hands of a youth club worker when he was a teenager. I have sat across a table with a different client who explained that his mental health issues were a consequence of the abuse he suffered at the hands of those employed to look after him at a boarding school.

I have seen clever lawyers during the time of the former Labor Government fail in actions against the State Government, where they tried unsuccessfully to suggest that breach of fiduciary duties law could be used to try to circumvent common law damages claims prevented by the Limitation Act 1969. I thought at the time as a mere legal technician in legal practice that it was unfair that a Limitation Act could prevent a damages claim by a victim whose life had been so ruined that they were not able to claim damages at a later point because of their disability. Now, as a legislator in this place, I am very happy to be able to right that terrible injustice by supporting this bill.

I am proud to be a member of a Government that has taken a number of initiatives prior to this bill to address limitation periods by the following methods: adopting guiding principles for government agencies responding to claims for child sexual abuse that restrict when an agency can rely on limitation periods to defend a claim; introducing a directive that the Department of Family and Community Services will not generally rely on limitation periods to defend claims for child sexual or physical abuse; releasing a discussion paper on this issue for public consultation in January 2015; and announcing in November 2015 that the Government will introduce legislation this year.

This bill will take away the ability of the Government or any other institution or person to raise a limitation period. The content of the bill involves the insertion of section 6A into the Limitation Act 1969. The elements of the amendment apply under 6A (1) to an action for damages that relates to the death of or personal injury to a person resulting from an act or omission that constitutes child abuse of the person. Subsection (2) defines "child abuse" as:

... any of the following perpetrated against a person when the person was under 18 years of age:

(a) sexual abuse,

(b) serious physical abuse,

(c) any other abuse (connected abuse) perpetrated in connection with sexual abuse or serious physical abuse of the person (whether or not the connected abuse was perpetrated by the person who perpetrated the sexual abuse or serious physical abuse).

Subsection 3 removes any doubt that connected child abuse is child abuse only if both the connected abuse and the sexual abuse or serious physical abuse in connection with it was perpetrated when the person was under the age of 18. Under subsection 4, the section applies regardless of whether the claim for damages is brought in tort, in contract, under statute law or otherwise. Subsection 5 makes it clear that the amendment applies to extend the limitation period with regard to the following causes of action:

(a) a cause of action that arises under the Compensation to Relatives Act 1897,

(b) a cause of action that survives on the death of a person for the benefit of the person's estate under section 2 of the Law Reform (Miscellaneous Provisions) Act 1944.

Generous transition provisions are also enacted by amendments in schedule 5 to the Act. In part 3, clause 9, makes it clear that the amendments under section 6A to the Act will apply whether or not any limitation period previously applying to the cause of action has expired; whether or not an action has been commenced previously on the cause of action; whether or not a judgement on the cause of action has, on the ground that a limitation period applying to the cause of action had expired, been given previously; and whether or not a judgement in respect of legal professional negligence has, on the ground that a limitation period applying to the cause of action had expired, been given previously. Those transition positions are broad, as they must be, to ensure that the bill has the widest possible operation. It is sometimes said by unhappy litigants that there is not much justice in the justice system. I commend the Attorney General for introducing this important and compassionate reform to ensure that vulnerable victims of child abuse can seek justice against their perpetrators. I commend the bill to the House.