Bills

Limitation of Actions (Child Abuse) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 31 July 2018.)

The Hon. C. BONAROS (11:02): I rise to speak in support of the Limitation of Actions (Child Sexual Abuse) Amendment Bill 2018. The bill, which amends the Limitation of Actions Act 1936 and abolishes the limitation period for claims for compensation for victims of child sexual abuse, has been a long time coming. Currently, the Limitation of Actions Act provides for a limitation period of three years for a person to bring a common law action in personal injury. This means a person who has suffered sexual abuse in childhood has until their 21^st birthday to commence legal action against the perpetrator of the abuse.

The bill addresses statements made in the Royal Commission into Institutional Responses to Child Sexual Abuse—Redress and Civil Litigation report released in September 2015. In that report, the royal commission considered that state and territory governments should implement recommendations to remove limitation periods without delay. That was almost three years ago. The royal commission found that limitation periods are a significant and sometimes insurmountable barrier to survivors pursuing civil litigation. This is an unacceptable injustice that the bill serves to correct—finally.

The bill is recognition that current limitation periods are inappropriate, operating unreasonably to deny victims access to justice, especially given the length of time that many survivors of child sexual abuse take to disclose their abuse. Regrettably, the former Labor government failed to introduce the legislation. Instead, it fell to the Attorney-General, while she was in opposition, who introduced a private members' bill in September 2016, and the Hon. John Darley in this place, who introduced the bill of the same name in 2017, to achieve justice for survivors. I commend the Attorney-General for her initiative in advancing the legislation that we are now debating.

This bill differs slightly from the private members' bill the Attorney-General introduced in opposition, in that it takes into account all victims of sexual abuse and is not limited to survivors of sexual abuse in government and non-government institutions. This is a welcome addition to the bill because institutional child sexual abuse is only the tip of the iceberg. We must also acknowledge that the vast majority of abuse occurs within the family home and the family circle. If we fail to acknowledge this, we are not just failing victims but failing society in general by not removing it completely from society.

According to ABS statistics from 2016, there were 21,380 victims of sexual assault recorded by police in Australia in 2015, the highest number recorded in some six years. These are staggering figures by anyone's measure. That is over 21,000 damaged and interrupted lives. While there is significant media focus on sexual assault incidents committed by strangers, the vast majority of sexual assaults, as noted, are perpetrated by someone known to the victim and, more disturbingly, a large proportion by a family member. This was highlighted in the 2016 ABS results, which reported that, in 2015, around three-quarters of sexual assault victims knew their offender—that is alarming, to say the least—while for around one-third of sexual assault victims the offender was a family member.

The overwhelming majority of perpetrators are male. The most common age of offending for men who have sexually abused children is men aged in their 30s and 40s, according to criminologists and psychologists, and there is a terrible reason why. Professor Stephen Smallbone of Queensland's Griffith University says:

That's a time where there is a particular set of opportunities which hadn't been previously available…So for a man in his 30s or 40s, that's an age when he's likely to first have his own children, who are coming into the peak risk age of sexual victimisation of around 12, 13, or 14.

At this age, simply put, men are more likely to be around children at home, either their own or someone else's. According to Professor Smallbone's research, in 70 to 80 per cent of all child sexual abuse cases there is some sort of family relationship between the child victim and the offender. Around 15 per cent of those abusers are the victim's biological father. The rest are boyfriends or stepfathers or other adult males in an authority role. We need to make the strong point that the most dangerous place for a child at risk of sexual abuse is in fact in the family unit. People do not like to hear it because it is too close to home. We do not want to think that those whom we love, grew up with and care for are sick, perverse paedophiles.

We need to be teaching our children that, if they are inappropriately touched in any way, they must tell someone. Many victims do not disclose child sexual abuse until many years after the abuse occurred, often when they are well into adulthood. Some victims never disclose it at all. We know from the royal commission that many survivors disclosed their abuse for the first time before the commissioners decades after they had suffered from sexual abuse. Survivors who spoke to the commissioners during one of the 8,013 private sessions took an average of 23.9 years to tell someone about the abuse they had sustained. Men often took longer to disclose than women. The average for females was 20.6 years and the average for males was 25.6 years.

These reasons for disclosure are varied and complex. Disclosure of abuse is difficult and traumatic for the vast majority of survivors, whether the abuse occurred when they were children or as adults and whether they disclosed the abuse themselves or it was uncovered in other ways. Those survivors who shared their harrowing histories with the royal commission did so because they wanted the abuse to stop or they wanted to prevent it from happening to others. Other survivors disclosed because they could no longer carry the burden of the secrecy of sexual abuse.

Whether, when, how and to whom a victim discloses is influenced by their age, developmental stage, disability, gender, cultural or linguistic background, the relationship between the victim and the perpetrator, the severity of the abuse and the perceived risks associated with disclosure. All these factors contribute to whether victims report their experiences and when this is likely to happen. Underlying these factors is the vulnerability of a child and the inherent power imbalances and complex institutional environments that they are required to understand and overcome in order to disclose an abuse.

It is a lot for a child to overcome, when they are up against, in the case of the Catholic Church, arguably the most powerful institution in the world. Within the walls of the Catholic Church there was never a whistleblower, there was never someone who had the courage and integrity to break ranks. Theirs was a shocking, appalling, unforgivable unholy silence. Instead, perverse paedophile priests were protected, moved on to continue their offending in other parishes because those who knew elevated the need to protect the church from scandal over the need to protect children from harm. Those who knew preferred to be complicit than to be courageous. Those who knew preferred to look the other way, so that the paedophile priests could evade justice rather than face judgement.

It was an era that spanned six decades, when priests were revered, respected and never, ever questioned. In this toxic environment, children either did not disclose, were silenced, ignored or not believed. I remind my colleagues that victims of sexual abuse within the Catholic Church represented 60 per cent of all the victims who bravely came forward to share their unflinching, intensely personal stories of abuse to the royal commission. Damning figures from the royal commission show that 7 per cent of priests abused children between 1950 and 2010. In one Catholic order, St John of God Brothers, 40 per cent of clergy were alleged perpetrators, while one in five Marist and Christian Brothers were the subject of allegations. Jesus must be weeping.

While the Catholic Church was only one of the many institutions to be examined by the royal commission, the church's behemoth size and power allowed the abuse to continue unabated for over half a century. The abuse and its cover-up in the Catholic Church, horrific in itself, was further compounded by the church's response to survivors, hiring top QCs, like fierce criminal barrister Chester Porter, to tear victims to shreds, backed by the most expensive corporate law firms to fight claims of sexual abuse. Instead, this powerful religious machine preferred to denigrate and demoralise victims even further than provide restorative justice and redress.

The royal commission heard how lawyers acting on the Catholic Archdiocese of Sydney's instructions vigorously fought child sexual abuse survivor John Ellis through the courts, running up bills of $1.5 million despite his wife writing to the church warning them of his fragile psychological state and his willingness to settle for a mere $100,000. It was Cardinal Pell himself, the centre of serious criminal charges currently, who gave the green light for the church's vigorous fight against John Ellis.

Where did the church obtain this money for the QC's fees, I wonder? Did any of it come from the parents of abuse victims who put it into collection plates at mass on Sundays? The church's failure to comprehend the depth of damage done to victims, their families and the church community will be its undoing. The refusal of former Archbishop of Adelaide Philip Wilson to resign from his role until this week is illustrative of the church refusing to understand just how profound the impact of abuse is on survivors.

Wilson's resignation comes a month after he was found guilty of concealing child sexual abuse. Indeed, he is one of the most senior Catholic leaders in the world to be found guilty of concealing sexual abuse against children. The resignation came days after Prime Minister Malcolm Turnbull called on the Pope to sack Wilson and only serves to show that the Catholic Church is in a realm of its own, answerable only to itself.

Wilson should have been sacked by Pope Francis rather than being able to resign. Unfortunately, Rome still sees itself as the judge and protector of its priests, but Rome must respect our law. This applies equally to all religions. What a strong and powerful message it would have sent to the Catholic community and broader community throughout the world had the Vatican been prepared to dispense with a convicted criminal.

I cannot reiterate the importance of disclosing, and particularly disclosing early, as it can immediately commence the important process of ensuring safety and protection for victims, taking steps to ensure the abuse is stopped and reducing the risk to other potential victims. Disclosure is important for victims as well as the institutions involved, other children and the broader community.

Bush poet Corin Linch has spoken about why survivors do not disclose, and I quote:

Most like myself are silent for years, some never speak up. It has taken me the best part of 50 years to be open and admit that I was sexually abused as a boy and on through my teenage years by various men.

You may well ask why I did not speak out earlier. The answer is simple, shame and guilt. Both misplaced feelings I have finally learned but they have eaten away at me for years and I believe affected the person I became.

Depression has dogged me for years but I truly believe I have beaten it, I have survived and I am proud of that fact.

When former prime minister Julia Gillard established the Royal Commission into Institutional Responses to Child Sexual Abuse, she accused pillars of the establishment of averting their gaze. Australian of the Year David Morrison told his army colleagues, 'The standard you walk past is the standard you accept.' We do accept things we should not. We do avert our gaze from time to time, but we know not to. The Royal Commission into Institutional Responses to Child Sexual Abuse has taught us that we must never avert our gaze again.

The Hon. D.G.E. HOOD (11:16): I rise to express my unequivocal support for this bill, which seeks to abolish the limitation of actions period with respect to claims of child sexual abuse, fulfilling what I would consider one of the Marshall Liberal government's most important election commitments.

The proposed changes to legislation are, of course, a response to the recommendations from the commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse, which found our current civil justice system to be operating unreasonably, failing many victims of this abhorrent and inexcusable form of abuse.

The government is imploring members to facilitate the swift passage of this bill, particularly given South Australia is the only jurisdiction in the nation that is yet to remove a time limitation for civil litigation involving this type of abuse or personal injury. This is, of course, notwithstanding the Attorney-General's previous attempts whilst in opposition to introduce similar changes, specifically for victims of institutional child sexual abuse following the Nyland royal commission, which regrettably never had the chance to be debated, in any event, and was not supported by the former government.

At present, victims of child sexual abuse have just three years to bring a common law action in personal injury between their 18^th and 21^st birthdays, pursuant to the Limitation of Actions Act 1936. The provisions in the bill will enable survivors of child sexual abuse who have fallen victim to predatory behaviour not only within state and nonstate institutions but in any given circumstance to be afforded the right to pursue civil claims at any point in time, ensuring no victim is ever denied the justice they seek and deserve. The abolition of the limitation period will apply retrospectively, with courts also being granted the discretion to re-litigate matters that are dismissed due to the restriction.

In my estimation these are very logical reforms, since there are certainly a myriad of reasons why someone who has experienced sexual abuse as an adolescent may not feel they are in a position to even share details of their ordeal with someone they trust until years into their adulthood, let alone take legal action against the offender. Sometimes these things can just take time.

Indeed, they may be too fearful, threatened, ashamed or feel they will simply not be believed. It is also possible for victims to not even remember details of what occurred or, in some cases, realise that what had happened to them was abuse, or perhaps even that exposing their mistreatment would have serious and significant ramifications for their families, loved ones or other relationships.

Statistics reveal that abuse of this nature occurs more often than not between those who are in a familial relationship or, at the very least, know one another. As we have also unfortunately witnessed all too often the abuser might also be in a high profile or powerful position and the victims may not wish to subject themselves to scrutiny until after careful consideration of any potential repercussions. As legislators the very least that we can do is to relieve victims of any pressure to engage formal legal proceedings before they are well and truly ready to do so.

Although the effects of this bill will not only benefit survivors of institutional child sexual abuse it is important to note that it will provide these potential claimants with another option of redress in addition to that which is offered to South Australians through ex gratia payments through the National Redress Scheme. I am aware that the Attorney-General expects that most victims will seek compensation through participating in the newly-adopted national scheme but there may be occasions where achieving recompense through the court system is either preferable or necessary, particularly in cases where liable institutions have ceased operating.

As honourable members may recall, I had the privilege of speaking last week to the Hon. Frank Pangallo's motion concerning the Redress Scheme where I reiterated the government's resolve to fully participate in the program as reflected in its recent introduction of the National Redress Scheme for Institutional Child Sex Abuse (Commonwealth Powers) Amendment Bill. The passage of this bill will facilitate the implementation of the National Redress Scheme in our state and support its consistent operation throughout Australia, which is essential in acknowledging the unimaginable pain and suffering experienced by those subjected to the most detestable and destructive forms of abuse in a tangible and meaningful way.

In my contribution to the motion I made reference to the royal commission's finding that it took survivors almost 24 years, on average, to disclose the abuse they had suffered. In 2002, members of the Fiftieth Parliament recognised the propensity for survivors not to disclose their experiences until decades after the fact, and they were engaging in a very similar discussion to that which we are having today. Thankfully, they saw reason and unanimously voted for the removal of the 20-year statute of limitations for the prosecution of child sexual offences.

Some members present in this place at the moment may recall that this was as a result of legislation introduced by my former colleague, the Hon. Andrew Evans, who attributes the success of this initiative to be one of the greatest achievements of his parliamentary career. I certainly agree with this assertion. As a result of his simple yet incredibly impactful reform it has enabled many survivors of child sexual abuse to obtain justice and hopefully some sense of closure following their traumatic ordeals. We are now presented with another opportunity to work in a multipartisan fashion in their best interests and to ensure that South Australia finally falls in step with all other states and territories by removing an unwanted barrier to justice.

The instance of sexual abuse against vulnerable and innocent children is unfortunately a very sad reality within our community, and this state government intends to fulfil its responsibilities through the introduction of all appropriate measures to assist victims in their endeavours to thrive and not merely survive. I support the bill.

Debate adjourned on motion of Hon. T.J. Stephens.