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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2018-07-31 Daily Xml
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Limitation of Actions (Child Abuse) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 26 July 2018.)

The Hon. K.J. MAHER (Leader of the Opposition) (18:17): I rise today as having conduct of this bill in the Legislative Council. I indicate that the opposition will support this bill but with one amendment that I believe was filed this morning. Our amendment will ensure that people who have suffered from childhood abuse have the opportunity to seek a civil remedy for the harm they have endured regardless of what form that abuse takes. At its core, the amendment is about fairness and equality. It ensures that we do not create a system of more worthy and less worthy child victims who have suffered abuse.

Abuse that impacts a child and can be proven in a civil court should be recognised and recompensed no matter whether that abuse is sexual, physical, mental, emotional or in the form of neglect. As the law currently stands, a person who has been the victim of child abuse has until their 21st birthday to make a civil claim against their abuser or abusers. This is an unrealistic expectation for many young victims of abuse, whether that abuse is sexual, physical, mental, emotional or by neglect.

Many victims are not able to acknowledge their abuse let alone disclose it until well into adulthood, and most of us instinctively understand that. There are countless studies to prove it, but as humans we can recognise that experiences of abuse might be repressed or kept secret for self-preservation. A young person might not disclose the abuse due to fear or a lack of trust in adults or authorities. A person might feel shame and not want others to know about their childhood abuse.

In some instances, victims have waited until the death of relatives or perpetrators before coming forward. Young victims may also be unaware of the legal remedies available to them, both criminal and civil, or how to go about navigating the justice system. It is also the case that community attitudes towards victims have changed over time. It is a good thing that victims of childhood abuse are increasingly believed and supported but that has not always been the case.

If we reflect on the Mullighan royal commission and the removal of the statute of limitations for criminal cases, it gives us some indication of just how many victims were unable to disclose their sexual and physical abuse, or find people who believed them, or to navigate the criminal legal system until much later in life. The age of an individual and the mental effects of their abuse should not be a barrier to them later seeking redress for crimes committed against them as a child.

This amendment also recognises that the abuse of a child often involves several forms of abuse, either committed in one instance or in different instances over time. A sexual offender may also physically abuse a child. In committing a sexual offence, the perpetrator may also employ physical or mental abuse. A person who commits sexual and physical abuse may also subsequently perpetrate emotional and mental abuse upon a victim.

A child who is subject to neglect may also be the victim of mental and emotional abuse. Each of these forms of abuse may be able to be proven in different ways and to different degrees in the civil jurisdiction. Why should a person who was sexually abused as a child not also be recognised for the physical abuse they have also suffered? Why should a sibling who suffered physical abuse not be able to take civil action just as their sibling can take civil action for sexual abuse? The opposition submits this as plainly unfair and unjust, not to mention a nonsensical approach.

Physical abuse and neglect can have damaging impacts on the development of a child akin to the impact of sexual abuse, according to many child protection advocates and experts. Physical abuse can include torture and, sadly, we have seen cases involving systematic torture of siblings in our criminal courts over recent years. Why should those victims not be able to pursue civil remedies just as a person who was sexually abused as a juvenile can? Sadly, we have also seen several instances of serious neglect. In some cases, those children's future health, development, progress and mental capacity have been limited for life by that neglect.

Often the impacts of such neglect are not fully realised until adulthood or are exacerbated over time. It is highly problematic to grade types of abuse to say one form of abuse is more or less harmful to a child. The context and circumstances are important, and it is up to our courts to determine the facts and decide the appropriate remedies.

Our amendment also goes to another point in achieving justice. Anyone who commits a crime against a child should not enjoy any kind of protection. The law as it stands provides protection to sexual perpetrators in that as long as the victim does not commence legal action within the first three years of adulthood, an offender need never fear a civil action, and we support the legislation that changes this. But surely any child abuser, whether they abuse a child sexually or physically or otherwise, should not have that privilege of immunity from civil action after the victim turns 21.

Our amendments will ensure that no child abuser can rest comfortably after their victim turns 21 in the knowledge that they will never be pursued in civil courts. The Deputy Premier has introduced this bill in another place to remove the barrier for victims of sexual abuse seeking justice for the crimes committed against them by civil remedy. This bill seeks to do that by amending the Limitations of Actions Act 1936 to specify that an action for damages resulting from the sexual abuse of a person when the person was a child (a) may be brought at any time and (b) is not subject to a limitation period under this act or any other law.

This bill is not the first such piece of legislation that we have seen in this chamber. I note the Hon. John Darley introduced a similar bill in relation to this, I think in 2017, and I commend him for the work he has done on this important issue. That bill from the Hon. John Darley expanded on a previous private members' bill by the then shadow attorney-general. The bill now picks up and applies that to all children, not just those abused in state institutional care, and we submit that it ought to apply not just to sexual abuse but to other forms of abuse.

There will be arguments that this may impose extra costs on the state, and certainly that has been raised. However, for the reasons I have outlined before, we do not think trying to delineate between the different forms of abuse is fair and equitable.

All the usual levels of evidence and proof required by a court will still be required by a court. If the passage of time has diminished the ability, that will still be something taken into account by a court, and it will still be the same burden of proof required for all forms of abuse as will be required by the removal of limitation for sexual abuse.

While we certainly support the intent of the new bill, the opposition is seeking a further amendment to strengthen it, with the extension of the legislation to include all victims of childhood abuse and not just sexual abuse. As I have said, as it stands, the bill does not deal with abuse that is physical, emotional, mental or as a result of the neglect of a child.

Our amendment is simple and short, but it means that, as I have said, a perpetrator of this abuse cannot, after the victim turns 21, carry on their life comfortably in the knowledge that they are barred from civil action if it is non-sexual abuse, as would be the case if it was just this bill that was passed.

By limiting the bill to only sexual abuse, we are sending a message to victims of other forms of abuse that their abuse ranks lower, that it is not as serious or damaging as sexual abuse and that they are not as deserving of access to civil remedies. All forms of abuse, not just sexual abuse, are harmful to children and we submit that, as a parliament, we have an opportunity now to recognise that. I commend the bill, and also the Labor opposition amendments, to this chamber when we consider it in committee.

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

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