On 18 April 2018 the Western Australian Government passed historic changes removing the three year statute of limitations for survivors of childhood sexual abuse. Until the passing of these changes Western Australian survivors had only three years from the date that they turned 18 to bring a claim for childhood sexual abuse. The recent changes mean that Western Australian survivors can now access their rights to compensation through the civil justice system.
The passing of the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Bill (WA) 2017 has been a long time coming for Western Australian survivors following recommendations from the Royal Commission for removal of the limitation period in its Redress and Civil Litigation Report delivered on 14 September 2015.
An overview of the legislation
The bill amends the existing Civil Liability Act 2002 (WA) and the Limitations of Actions Act 2005 (WA).
Changes to the Limitation period
Amendments to the Limitation Act 2005 are in Part 3 of the Bill and remove the limitation period for bringing a civil action for childhood sexual abuse.
These changes implement recommendations 85 to 86 of the Royal Commission’s September 2015 Redress and Civil Litigation Report. The changes bring credence to the Royal Commission’s findings that:
“Many victims do not disclose child sexual abuse until many years after the abuse occurred, often when they are well into adulthood. Survivors who spoke with us during a private session took, on average, 23.9 years to tell someone about the abuse …”
The amendments also strive to remedy injustices of the past caused by the previous strict operation of the limitation period by allowing survivors to commence a cause of action even though they may have previously received a court judgment preventing them from proceeding with their claim due to the expiration of the limitation period. In addition the changes allow survivors, on the meeting of certain conditions, to commence a court action where they have previously settled a claim for the childhood sexual abuse. This will allow survivors who have previously settled their claims on a compromised or reduced basis, due to the limitation hurdle, to seek the full compensation which to they are entitled.
Changes to Defendant entities and access to assets
Importantly, the legislation also introduced a new Part 2A to the Civil Liability Act 2002 (WA) entitled “Child Sexual Abuse Actions” which overcomes the difficulties that many survivors face in identifying a proper defendant to sue and in being able to satisfy a judgment or settlement from an institution’s particular asset holding structure.
Part 2A allows survivors to bring a legal action against the current officer holder of both incorporated and unincorporated institutions regardless of whether that institution has now changed its name, organisational structure, incorporation status or geographic area. Part 2A also stipulates that any judgment or settlement may be satisfied out of the assets held by that institution, including assets of any trusts held by the institution. The amendments also allow survivors to take action against the successor of the institution, or the Head of the Institution, in circumstances where the specific institution where their abuse occurred no longer exists.
These amendments are a very significant step forward for survivors of abuse where previously institutions have been able to avoid their legal responsibilities and protect their assets from being used towards satisfying a judgment or settlement through the “Ellis” Defence. The “Ellis” Defence arose from the New South Wales Court of Appeal decision of Trustees of the Roman Catholic Church, The Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565 wherein the Court held that church assets could not be subject to orders for compensation for child abuse crimes perpetrated within the church, because church trustees could not be held to account for the crimes of individuals.
Cap on legal fees
For further protection of survivors, the new Part 2A to the Civil Liability Act 2002 also introduces a cap on legal fees which limits legal practitioners from receiving legal fees in any greater sum than is provided for by any costs determination. The costs determination will be made by a Legal Costs Committee comprising three independent members of the legal profession and three non-lawyers. These changes will ensure that legal fees charges to abuse survivors are just and equitable.
How do the WA changes compare with other States?
Despite the lengthy wait for Western Australia, the good news is that some aspects the WA legislation are far more beneficial than similar legislation which has been passed in other states. Most significantly, as discussed above, the WA government has introduced laws preventing institutions from using the “Ellis” Defence in avoiding legal claims. No other Australian state has yet enacted similar changes (although Victoria is likely to soon follow suit with the introduction of the Legal Identity of Defendants (Organisational Child Abuse) Bill 2018 in March 2018).
Unfortunately the Western Australian government has joined Queensland and the Australian Capital Territory in limiting the abolishment of the limitation period to claims for childhood sexual abuse. The Victorian, New South Wales and Northern Territory governments have all introduced legislation which abolishes the limitation period in respect of sexual abuse, serious childhood physical abuse and associated psychological abuse. It has been well recognised by the Royal Commission that physical and psychological abuse often go hand in hand with childhood sexual abuse and can have similarly devastating impacts upon survivors throughout their lives. It is disappointing that the Western Australian government has not legislated to include rights of action for survivors of childhood physical and associated psychological abuse.
The legislative changes by the Western Australia government now leave South Australia as the only Australian State not to have implemented changes in some form in line with the Royal Commission’s September 2015 recommendations.
 Royal Commission into Institutional Responses to Child Abuse, Final Report: Identifying and disclosing child sexual abuse, Volume 4, page 9.
Written by Fiona Leddy on . Last modified: May 8, 2018.