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Child Sex Abuse: Statute of Limitations

5 minute read

Mental, physical and sexual abuse
Survivors of abuse

“Limitation laws have no place in a just society.” - Lisa Flynn, Shine Lawyers’ Chief Legal Officer and passionate advocate for Abuse Law reform.

In 2015 the Royal Commission into Institutional Responses to Child Sex Abuse recommended that each state government introduce legislation to remove any limitation period for compensation claims related to child sexual abuse.

Here we provide a summary of how each state and territory around Australia responded and what this means for abuse survivors.

Statute of limitations: where we were

In most states across Australia, personal injury claims must generally commence within three years from the date the injury was sustained.

Until a few years ago, these statutory time limits applied to survivors of childhood sexual abuse. 

This is despite the fact that it takes survivors of childhood sexual abuse an average of 23.9 years [1] to be able to process what has happened to them and tell someone about the abuse.

The Royal Commission confirmed that time limitation periods were particularly problematic for abuse survivors and operate against their interests, as many survivors repress their painful memories or don’t recognise the link between their profound emotional injuries and the abuse until many years later.

Statute of limitations: where we are now

Thankfully, due to the Royal Commission’s recommendation to abolish time limitations, legislation changes have been made across the country.

While all states and territories have now removed the statute of limitations for child sex abuse claims, some states have increased the rights of survivors by also removing limitations relating to other forms of abuse.

Below, we outline some of the reforms that have taken place to-date:

Victoria

Victoria was the first state to enact changes to time limitation laws relating to survivors of child sexual abuse. In February 2015, the Limitation of Actions Amendment (Child Abuse) Act 2015 was enacted which states that time limitation laws do not apply to injuries from sexual abuse, physical abuse or psychological abuse of a minor. The Victorian Attorney-General at the time, Martin 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 experienced, 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."

Other key legislation changes:

  • Effective from July 2017:

    • The “onus of proof” for child sexual abuse claims was reversed and now lies on organisations such as churches, schools and government bodies to prove they took reasonable steps to prevent abuse from occurring.

    • Family members of deceased abuse survivors are able to seek civil damages.

  • Effective from September 2019, abuse survivors who had previously signed deeds of release, are now able to take legal action if the previous settlement was unjust and unreasonable.

New South Wales

In New South Wales, legislation was enacted in March 2016 to remove the statute of limitations on civil claims for:

  • child sexual abuse

  • serious physical abuse; and

  • any other abuse perpetrated in connection with sexual or serious physical abuse.

The change has been referred to as part of the NSW Government's response to the Royal Commission.The NSW State Attorney General at the time, Gabrielle Upton, was vocal in her support for removing time limits as a barrier that existed for victims of childhood sexual abuse:

"There should be no use-by date for justice for survivors of child abuse.”Western Australia"

In April 2018, the Western Australian Government lifted statute of limitation laws that applied to survivors of child sexual abuse. The legislation:

  • opens up the possibility for survivors to apply for past judgments and settlements to be overturned.

  • makes it easier for survivors who previously faced difficulties in identifying a proper defendant to sue.

  • stipulates that any judgement or settlement may be satisfied out of the assets held by an institution (this change was a significant step forward for survivors as in other states, institutions have been able to use the ‘Ellis defence’ to avoid their legal responsibilities and protect their assets from being used for a judgment or settlement).

Unfortunately, the legislation still significantly limits the ability for survivors to make a claim as the Western Australian Government has only removed the statute of limitations for claims of childhood sexual abuse; while all other states have also removed time limits relating to other forms of 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. With this in mind, it is disappointing that the Western Australian Government has not legislated to improve the rights of survivors of childhood physical and associated psychological abuse.

Queensland

In November 2018, the Queensland Government amended their statute of limitations legislation to come in line with the other states. This included:

  • extending the definition of child abuse to include both physical and sexual abuse

  • allow survivors to make an application to set aside previous deeds of release.

Northern Territory

In June 2017, the Northern Territory enacted legislation removing the statute of limitations for survivors of child sexual abuse, serious physical abuse and psychological abuse arising from sexual abuse or serious physical abuse.

Tasmania

In 2017, time limitations for child sexual abuse or serious physical abuse claims were removed. This also includes psychological abuse that arises from the sexual abuse and serious physical abuse.

ACT

In August 2016, the ACT Government removed the statute of limitations for claims relating to child sexual abuse. This legislation was amended in May 2017 to remove time limits for all compensation claims relating to abuse.There was another key reform in August 2018, when an amendment to the Civil Law (Wrongs) Act 2002 was passed to ensure survivors can take civil action against institutions regardless of the legal structure of the institution. This ended an institution’s ability to use the ‘Ellis defence’ to protect their assets and avoid their legal responsibilities.

South Australia

In September 2018, South Australia became one of the last states to enact legislation to remove time limits for abuse claims. Originally, the legislation was only going to remove the time limit for survivors of sexual abuse, however this was amended to remove time limits for all forms of sexual, physical and mental abuse before being enacted.

Each state government committed to annual reporting to provide progress updates on their implementation of the Royal Commission’s recommendations. To find more information on how each of the state governments provide support to survivors, protect children and grow child-safe organisations, visit your respective state government’s website.

Shine Lawyers' involvement

Shine Lawyers has vocally and passionately lobbied for years for the removal of time limits on behalf of survivors who were previously denied justice to seek redress through the courts. We welcome any change to legislation that allows survivors to seek the acknowledgement and reparation they deserve. Our 2015 submission to the Royal Commission into Institutional Responses to Child Sexual Abuse demanded that time limitations be lifted for historic abuse actions to allow survivors to access justice and legal redress for the crimes of the past.

“Survivors of historic sexual abuse will now have their voices heard and after years of indifference, will finally have a chance to secure justice.” - Lisa Flynn, Shine Lawyers’ Chief Legal Officer and passionate advocate for Abuse Law reform.

“The reforms will go a long way towards acknowledging the wrongdoing of the past and enhancing survivors’ recovery into the future.”

Access justice with Shine Lawyers

If you are a survivor of institutional physical, mental or sexual abuse, Shine Lawyers can help you to access the justice you deserve. We are ready to take action when you decide that enough is enough and will passionately work on your behalf, supporting your choice not to be silenced in deciding to right wrong.

Our dedicated team of abuse claim experts collectively possess over 90 years’ of experience in abuse law and are trained in trauma awareness to provide the support and legal advice you need to secure the outcomes most important to you.

Contact us today to organise a confidential and no-obligation consultation to discuss your options.

[1] Royal Commission into Institutional Responses to Child Abuse, Final Report: Identifying and disclosing child sexual abuse, Volume 4, page 9.

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