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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2018-06-20 Daily Xml
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Limitation of Actions (Child Abuse) Amendment Bill

Second Reading

The Hon. R.I. LUCAS (Treasurer) (18:07): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation and detailed explanation of clauses inserted in Hansard without my reading it.

Leave granted.

I am pleased to introduce the Limitation of Actions (Child Sexual Abuse) Amendment Bill 2018 which amends the Limitation of Actions Act 1936 and abolishes the limitation period for claims for compensation by victims of child sexual abuse.

The Limitation of Actions Act 1936 currently sets a limitation period of three years for bringing a common law action in personal injury. For a person who suffered abuse as a child, this means that an action must be commenced by his or her 21st birthday.

The Royal Commission into Institutional Responses to Child Sexual Abuse found that the existence of a limitation period creates significant barriers for survivors of child sexual abuse and operate unreasonably to deny victims access to justice. Survivors of child sexual abuse are unlikely to disclose the abuse until well into adulthood. When they do disclose the abuse, their first needs are likely to be seeking support services rather than civil litigation. In recommendations 85 to 88 of its Redress and Civil Litigation Report, the Royal Commission recommended that all States and Territories take immediate steps to remove the limitation period for cases arising from institutional child sexual abuse.

This Government has committed to introducing legislation to remove the limitation period for victims of institutional child sexual abuse within its first 100 days in Government.

The Bill achieves this result, but applies to all victims of child sexual abuse, not merely those who suffered abuse in an institutional setting.

The Bill inserts a new section 3A of the Limitation of Actions Act 1936, which provides that an action for damages relating to the death of or personal injury to a person resulting from child sexual abuse may be brought at any time and is not subject to any limitation period. This includes limitation periods applying to claims brought in tort, in contract, under statute or otherwise.

Although the Bill permits such actions to be brought at any time, it does not limit the court's inherent, implied or statutory jurisdiction or its other powers. The court will retain the power to summarily dismiss or permanently stay proceedings where there has been an abuse of process or where the lapse of time affects the defendant's case such that a fair trial is not possible.

The Bill also contains transitional provisions to clarify its application in cases where a limitation period on the cause of action has expired prior to the commencement of the Bill. In particular, Schedule 1 of the Bill provides that section 3A applies to an action on a cause of action that accrued before or after the day on which section 3A comes into operation, including where the cause of action was statute barred prior to section 3A coming into operation.

Further, an action may be commenced even though another action had been started but not finalised before the commencement of section 3A; another action was started but discontinued before the commencement of section 3A; a judgment was previously given on the ground that a limitation period applying to the cause of action had expired; or an action was dismissed on the ground that a limitation period applying to the cause of action had expired.

In cases where there is a previous judgement on the action or an action has been dismissed on the ground that a limitation period has expired, permission of the court is required before a new action may be commenced.

The court may grant permission for a new action to be commenced if satisfied that it is just and reasonable to do so. In granting permission for a new action to be commenced, the court may make any order it considers to be necessary for the action to proceed or otherwise appropriate in the circumstances.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Limitation of Actions Act 1936

4—Insertion of Part 1A

This clause proposes to insert a new Part 1A, containing new section 3A, into the Act. New section 3A proposes to remove any limitation on the period within which an action may be brought for damages relating to the death of or personal injury to a person resulting from the sexual abuse of the person when the person was a child.

Schedule 1—Transitional and other provisions

1—Interpretation

This clause provides definitions for the purposes of the transitional provisions in the schedule.

2—Application of section 3A of Act

This transitional clause provides that the proposed new section 3A of the Act will apply to an action for damages on a cause of action that accrued before or after the commencement of that section (including where a limitation period previously applying in respect of the cause of action had expired before that commencement).

3—Previously barred cause of action

This transitional clause makes provision in relation to causes of action in respect of which a limitation period had expired before the commencement of proposed new section 3A of the Act (a previously barred causes of action). The clause provides that a new action on a previously barred cause of action may be commenced even though there had previously been 1 or more actions commenced in respect of such a cause of action (including where the action has been discontinued, not finalised or finalised on a ground that the action was out of time). The clause makes special provision where an action on a cause of action had been previously finalised on a ground that the cause of action was out of time (including where an extension of time was refused), in which case a new action on the cause of action may only be commenced with the permission of a court. A court may grant permission for such a new action if satisfied that it is just and reasonable to do so and the court may make any other order the court considers necessary for the action to proceed or that is appropriate in the circumstances.

Debate adjourned on motion of Hon. I.K. Hunter.

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