Limitation of Actions (Institutional Child Sexual Abuse) Amendment Bill

Introduction and First Reading

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (10:58): Obtained leave and introduced a bill for an act to amend the Limitation of Actions Act 1936. Read a first time.

Second Reading

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (10:58): I move:

That this bill be now read a second time.

The background to the presentation of this bill for the parliament to consider is the investigations that occurred in the Royal Commission into Institutional Responses to Child Sexual Abuse, Redress and Civil Litigation report. Members would be aware that this has been a national inquiry.

It is fair to say, and I think it is a credit to the state, that South Australia advanced an inquiry in relation to institutional sexual abuse some years ago and provided some redress scheme. However, at the national level, whilst that commission has been continuing there has been a specific report in relation to the child sexual abuse redress and civil litigation and how that should be reformed to accommodate the important initiatives that have been identified during their royal commission.

I part ways with the government on its response to the redress for children who have been victims of sexual abuse while in foster or institutional care in South Australia because the Attorney-General, after the federal report came out, refused to consider any further payment of money to victims in South Australia. They had received some smaller payments under a redress scheme post the Mullighan inquiry. Nevertheless, that is very disappointing because, even though those payments were made, they were far less than consistent with the national recommendation. There may have been an advance but, as far as the Attorney is concerned, he has ruled off that entitlement. I think that is harsh and unconscionable towards those who have been in it. Nevertheless, that is their view.

The second area that is an important initiative in the redress and civil litigation report is the removal of the limitation periods in which a victim can apply for compensation. In short, the Limitation of Actions Act 1936 limits periods for personal injury claims to three years after the cause of action occurs in respect of these claims. There are various other time limits under that act but, for the purpose of this, it is a three-year limit. For a child, that is a time that extends for a period from which the plaintiff is a minor.

Here is the situation: if a child is sexually abused, goes through their teenage life and attains the age of 18 years, they have three years from their 18^th birthday to make a claim against the alleged perpetrator of that abuse, or someone who would otherwise be responsible and should have acted to protect the child in those circumstances. There are very good reasons that we have limitations on actions. The general principle is that it is unlike criminal matters, for which no lapse of time should stop there being a prosecution if somebody is found. For example, if you commit a murder in 1965 and years later DNA testing exposes that you are the party who was responsible for that, you should not be able to say, 'There's a limitation of time from which I should be prosecuted, so I am scot-free.'

For smaller matters, like a traffic offence, we still do have limitations on the time in which the police and/or prosecuting authorities have to actually issue the summons to proceed with minor misdemeanours in that category. However, in civil actions, if you want to sue to recover, you have three years from the event. You can go to the court, whether it is the District Court or the Supreme Court, whichever you are making the application to, and you can seek an extension of time, sometimes based on medical evidence, but you have a time limit, and that time limit is three years.

What has been identified—and this was acutely considered in the national royal commission—is that very often a person who is the subject of abuse as a child does not disclose or even recognise the significance of that abuse until they are well into adulthood. I think most members have been saturated with very sad stories from our electorate, in media coverage and in the multiple reports that we have. Very sadly, what can happen particularly in circumstances of child sexual abuse is that the memory and recall can be suppressed, or not really dealt with or acknowledged.

Many years later in adulthood, that person may have an unsuccessful personal relationship. Their marriage may fail. They may have some hesitation in wanting to have children. When the problem is diagnosed and there is essential counselling that might come with periods of grief or separation or loss, out comes the exposé of what happens with that child. Sometimes it is deliberate; that is, the child is caught in a web of silence because of the fear that they might lose the protection of the family unit they are in and they put up with the circumstance. Sometimes they do not know what to do.

Sometimes they are concerned to go public for fear that it will offend other members of the family or get other people into trouble. There are all sorts of reasons why children keep this secret to themselves. We know that is not the right thing to happen. We know that the abuse should not occur in the first place. We know that they should feel free and comfortable to be able to tell somebody, and we know that they should have relief and protection. We know that if treated badly and there is continuing pain or injury, there should be necessary treatment (whether that be medical, psychiatric or psychological), and they should be given every opportunity for that to occur.

In that process, as recognised by the national royal commission, it is critical that those people have the opportunity to come forward into adulthood and seek some redress where appropriate. Sometimes the perpetrator is no longer around 20 or 30 years later. They may be dead or have disappeared. They may no longer be in a position where they can be prosecuted. They may not be of any means, so they may not have any money from which to provide compensation. But they may actually be able to access some redress through the Victims of Crime Fund or other schemes that have been established.

We ought to do everything possible to ensure these children have access to that and are not denied when a very latent disclosure comes to the fore for which they ought to have some redress. New South Wales and Victoria have had limitations and they have passed legislation to abolish these limitations. Two major states in the country have listened to what has occurred and they have acted to enable children not to miss out in this circumstance. I would urge the government not to put its head in the sand on this but to act on it and enable it to occur.

I understand Queensland's jurisdiction is on its way through the parliament; it may have already passed. In any event, other states have acted on this. They have obviously read the report, they have accepted the argument and they have acted to ensure these children do not miss out when the issue is disclosed at a later date. One matter that is very concerning to me is that we often hear from the government that they are sympathetic to the circumstances, that they understand, that they are model litigants and that they are prepared to act to protect and provide for children who have been so badly treated in these circumstances.

I was very interested to hear that late last year the Premier had received a request from people representing victims in these circumstances, asking the government to introduce legislation to remove the limitation period and enable it to act retrospectively, and they got a complete no. It was shutdown. It is as if the Premier goes out and tells us what a great bloke he is and how he cares about these children, and then they respond with a piece of correspondence saying, 'Get lost; we're not interested in doing that.' I just find it completely inconsistent and unconscionable, especially as they tell us how caring they are.

Most recently we had the dreadful situation where there were victims of a bungle in the health system. It was exposed and the consequence was the government, once they were caught out, said, 'We will act. We have set up a fund. We are going to cooperate with the victims and we will act and make provision.' Then we find correspondence that says that they are demanding that people pay their own costs. That is not consistent with the rhetoric that we get in here, or at a press conference, or where people are standing and nodding their heads and saying, 'Isn't he wonderful for caring about our children?' No, that is not acceptable.

In the health circumstance, people were facing death. Sadly, people died while they were waiting to have some compensation for that complete disaster in the health system. Like many others, I cannot trust the Premier when he comes in here and says that he will do the right thing. If he is serious about this, he will do the right thing. He will advise his cabinet and he will counsel his backbench to support this piece of legislation. He will not be so duplicitous and so inconsistent as to his public position and what is happening behind closed doors when people seek help in these circumstances.

We do not want to have a situation where the government delays providing justice to victims of institutional child sexual abuse whose claims would be precluded. We want to ensure that victims do not need to beg to the court to look at the matter in years to come. It is true that there is a power under the legislation for a court to extend the time or to grant permission to be able to apply out of time. There is a process for that but, again, it is a hurdle over which the applicant has to jump before their file will even be considered by the court. We do not want them to go begging to a court to open a case because this information has not been presented.

A model litigant must do the following: he must act honestly, consistently and fairly in the handling of claims and litigation; deal with claims promptly; make an early assessment of the government's prospect of success; pay legitimate claims without litigation; not take advantage of a claimant who lacks resources; not rely on a merely technical defence against a claim; and consider alternative dispute resolution options.

I suggest that in some of these areas where there have been health bungles and where there have been child protection failings, the government has failed on every count. It is necessary for us to make sure that they are not cut out and that the gatekeeper is released from the obligation to stop them coming forward and let them have their applications and their cases heard fairly. If the government was really serious about this it would support this bill. Frankly, they would have introduced this bill at the end of 2015.

Debate adjourned on motion of Ms Digance.