Every day I am in awe of the courage my clients show. The courage they find not only to come forward and tell their story, but also seeking to hold accountable the institutions and individuals who wronged them in such an unspeakable way.
Imagine then for a client like Steve, who had found that courage and taken those important steps back in 2005, only to be put back into a position where he was completely powerless. He had forced himself to relive the horrific abuse that had been inflicted upon him, along with the life-long devastating impacts that followed, only to be failed again by legislation protecting the institution responsible.
The law as it stood then, required Steve to have taken steps to pursue civil action on or before his 21st birthday for the abuse he had suffered, otherwise he lost the right to make a claim for much needed acknowledgement, assistance and compensation. Such a restriction was completely at odds with the findings of the recent Royal Commission into Institutional Responses to Child Sexual Abuse that the average time period between childhood sexual abuse occurring, and the survivor coming forward was 22 years.
Following the Royal Commission, all states and territories have now enacted legislation to remove these prohibitive statutory limitation periods for childhood sexual abuse.
Welcome changes to the legislation
June 2019, the Tasmanian government released a bill for consultation for amendments to the Civil Liability Act 2002 and the Limitation Act 1974. One of the key aspects of these amendments, are proposed changes to give survivors the right to apply to have previous deeds of settlement or release set aside, where “it is in the interests of justice to do so”.
This follows the recent announcement by the Victorian government of similar amendments regarding previous deeds of settlement and will see Tasmania join WA and QLD where these changes have already taken place.
What does this mean for survivors?
Prior to these changes, countless survivors like Steve were put in positions where their ability to access much needed compensation was severely restricted. It forced them to give up their legal rights by signing a deed of release or settlement that prohibited them from taking any further legal action, in exchange for compensation that was massively compromised and grossly inadequate in most cases. Survivors were told they had no other option.
It was a power that institutions were able to wield time and time again. A power used to curtail the rights of survivors; leaving them not only short-changed, but often feeling re-traumatised and unable to access the treatment and assistance they desperately needed.
Steve Fisher, survivor and founder of Beyond Abuse advocacy group says the new laws give the power back to survivors:
“Finally survivors of Child Sexual Abuse have some amount of power when it comes to moving on with their lives. This was stripped of survivors when they were abused and then when they went to institutions asking for recompense for what they had lost. The feeling of powerlessness the institutions made survivors feel is indescribable, and they used every law possible to avoid paying fair and just settlements to survivors. That has now changed and survivors for the first time in their lives have options that they should have had all along. That feeling is fantastic and will serve to help survivors in their healing process.”
These amendments are long awaited and much needed to make sure survivors like Steve have the opportunity to seek a fair outcome and real justice for the horrendous abuse suffered. The power of the court to set aside any previous deed of settlement or release is discretionary and centred on whether it is just and reasonable to do so – something every survivor should have the right to argue.
It’s a step Tasmania, and all remaining states and territories cannot take soon enough. A step in the right direction to ensure the continued commitment to remove unfair obstacles and restrictions that survivors of childhood sexual abuse have encountered for far too long.
Written by Kimberly Allen. Last modified: October 16, 2019.