Personal injury claims in most states in Australia must generally be commenced within three years from the date the injury was sustained.
Until recently, these general statutory time limits applied to victims of childhood sexual abuse in every state. This is despite the fact that it takes survivors of childhood sexual abuse an average of 20 years to be able to process what has happened to them and speak up about the abuse that occurred.
These statutory time limits have meant that survivors have had to bring about action within the set time or be deemed ‘out of time’, forced to abandon civil action or apply to the court for an extension of the allowable time period.
The law in most states allows for time extensions if certain conditions are met. These conditions are notoriously difficult to satisfy and even if met, the court must still exercise its discretion to extend time.
This has resulted in a very unfair situation where survivors of sexual abuse have been denied the opportunity to seek justice for the crimes committed against them.
Thankfully, we have seen steps in the right direction, with governments across Australia beginning to implement the Royal Commission’s recommendations to abolish time limitations. Below, we outline the reforms that have taken place to-date:
Laws in VictoriaVictoria was the first State to enact changes to time limitation laws relating to victims of child sexual abuse. In late February 2015 Attorney-General Martin Pakula introduced the Limitation of Actions Amendment (Child Abuse) Act 2015 which states that the time limitation laws do not apply to injuries from sexual abuse, physical abuse or psychological abuse that arise from sexual or physical abuse of a minor.
The Victorian Attorney General, Mr Pakula, said the following when introducing the laws:
"The trauma of child abuse can prevent victims from seeking immediate redress for the suffering they have caused, so our laws need to account for this – not penalise people for it……. This is about giving victims greater access to justice, allowing their suffering to be rightfully acknowledged and holding those to blame to account for the harm they've caused."
Recent changes in New South WalesNew South Wales have recently made changes to the limitation rules.
In New South Wales, the Limitation Amendment (Child Abuse) Act 2016 was introduced in to the New South Wales Parliament on 16 February 2016 and assented to on 17 March 2016. The legislation removes the time limit on civil claims for child sexual abuse. The change has been referred to as part of NSW Government's response to the child sex abuse royal commission.
The NSW State Attorney General, Gabrielle Upton has been vocal in her support for removing time limits as a barrier for victims of childhood sexual abuse.
"There should be no use-by date for justice for survivors of child abuse. We know there is more to do, and the NSW Government will release a consultation paper in the coming months in relation to the royal commission's other civil litigation recommendations".
Western AustraliaOn 22 November 2017, the Western Australian government announced its first steps towards removing time limitations laws that applied to victims of child sexual abuse. The legislation supports victims who were sexually abused as children, is not confined to institutional abuse, and opens up the possibility of overturning past judgments and settlements.
However, the Western Australian laws are more restrictive than those enacted in other states. The legislation excludes physical, psychological or emotional abuse. Survivors of this type of trauma do not have access to the same level of civil justice as victims of sexual abuse.
QueenslandThe Queensland government has recently indicated that it is taking steps to amend the time limitation to come in line with the other states. We believe that they are also in the process of issuing directives to government bodies not to plead the limitation defence in proceedings brought against them.
Update 10/11/2016: The Queensland Parliament has now passed legislation abolishing time limitations in historic cases of child sexual abuse.
NationalAt a Federal level, we received news that Senator the Hon George Brandis QC, Attorney-General for Australia has issued a Legal Service Direction pursuant to the Judiciary Act 1903 concerning the pleading of limitation defences with respect to time-barred child sex abuse claims.
The direction dated 4 May 2016 is that Commonwealth agencies are not to plead a defence to a time-barred child abuse claim based on the expiry of an applicable limitation period in relation to that claim. The Direction also extends that Commonwealth agencies are not to oppose an application for an extension of a limitation period in relation to a time-barred child abuse claim.
The changes that have been made in Victoria, New South Wales and hopefully soon to be made in Western Australia and Queensland will mean that hundreds of victims who suffered horrific abuse during their childhood while under the care of various religious institutions and government entities may now commence proceedings claiming the damages they are entitled to. Our hope is that they will soon be able to do this without fear of the statute of limitations defence being used as a weapon against them by defendants to prevent them from receiving just compensation.
Written by Shine Lawyers. Last modified: September 25, 2018.