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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
2019-06-19 Daily Xml
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Limitation of Actions (Actions for Child Abuse) Amendment Bill

Introduction and First Reading

The Hon. C. BONAROS (16:59): Obtained leave and introduced a bill for an act to amend the Limitation of Actions Act 1936. Read a first time.

Second Reading

The Hon. C. BONAROS (16:59): I move:

That this bill be now read a second time.

The bill I have introduced today on behalf of SA-Best , the Limitation of Actions (Actions for Child Abuse) Amendment Bill 2019, seeks to allow survivors of child abuse to sue predominantly churches, schools and other institutions that previously forced them into unfair and unjust financial settlements. Many survivors, particularly of sexual abuse in our institutions, have described the difficulties of dealing with the might of some of the most powerful institutions, including of course the Catholic and Anglican churches.

Many were offered small settlement sums despite despicable acts of abuse perpetrated on them by priests. To add insult to injury for the survivors, those settlements included deeds of release, agreements in which survivors were required to waive their right to take any further legal action for the abuse. The Catholic Church, in particular, employed the most expensive corporate lawyers and top QCs to fight claims.

Through the Royal Commission into Institutional Responses to Child Sexual Abuse and information sharing amongst lawyers, it has become clear that in many settlements the church did not divulge the full extent of its knowledge about its paedophile priests, preferring to keep the veil of secrecy and denying its liability rather than entering into just and equitable settlements. As a consequence of that unconscionable behaviour, lawyers all over the country are working for a large number of victims of Catholic Church abuse, many of whom have previously entered into so-called settlements for pitiful amounts in which the church denied any liability.

Sadly, this appallingly shocking and unethical behaviour is not, as we know, limited to one church and one church only. Indeed, last October a former Geelong Grammar student sexually abused by a teacher received a landmark $1.1 million settlement. The victim had settled for $32,000 in 1998, but his lawyers recently argued that deed was void because the school had known for years about the teacher's predatory behaviour and had, indeed, covered it up.

It was never a level playing field against the power and influence of the institutions. This bill seeks to address the imbalance and give back power to survivors. It amends the Limitation of Actions Act 1936 by inserting a new section 3B. This provision gives survivors the ability to deal with a previously settled right of action if a court, by order or an application, sets aside the agreement on the grounds that it is just and reasonable to do so.

In addition, a court can take into account any amounts already paid or payable under a voided agreement when awarding damages as well as any costs already paid or payable. The bill makes it clear that where past settlements were reached as a result of misleading, coercive or other improper conduct they can be set aside, giving the courts the ability to reopen claims that were unfairly settled.

The essence of the bill is predicated on fairness. It closely mirrors Queensland legislation passed on 8 November 2016 that was an Australian first at the time. The Queensland state parliament was debating bills which sought to abolish the 21-year-old age limit on sexual abuse, and that legislation was extended by an amendment to allow the setting aside of past settlements that was moved by the Liberal National opposition, with the support of the crossbench at the time. Regrettably, the legislation was limited to survivors of sexual abuse only.

The genesis of dealing with past settlements came from a private members' bill by Queensland Independent MP Rob Pyne, which is another example of the importance of an independent crossbench that will fight for issues that governments sometimes do not have the courage to initiate until a critical mass of support grows to the point where they can no longer be ignored. The passage of the bill, with the inclusion of the amendment dealing with past settlements, was revolutionary at the time, with advocates hailing the legislation around past settlements as a pioneering victory in a longstanding battle for justice for survivors.

Further, they argued that it should be adopted for all survivors of institutional abuse in all Australian jurisdictions. Other jurisdictions have already followed or are in the process of following suit. In July 2018, the Western Australian parliament amended its Limitation of Actions Act to remove the statute of limitations on how long after being abused a victim could sue and crucially included section 92 which relates to previously settled causes of action.

That legislation paved the way for a historic ruling in August last year when Paul Bradshaw became the first victim of historic sexual abuse to sue the Catholic Church under WA's new laws. The case, which saw Mr Bradshaw win a $1 million settlement against the Christian Brothers, was fast-tracked because Mr Bradshaw was in the late stages of terminal prostate cancer, which sadly claimed his life on 30 October last year.

The Western Australian experience shows what a practical and potentially significant difference this crucial change in the law can make. In addition, the Andrews government in Victoria recently announced similar measures. However, that legislation is not due to be introduced until the end of this year. This bill represents South Australia's contribution on the continuing path to justice for survivors of all forms of abuse that occurred in our institutions.

However, it should not be contained within a private members' bill—that is my view—and, instead, should have been initiated by the Marshall Liberal government. Of course, we always welcome the opportunity for the government of the day to adopt private members' bills and add them to their own agenda of legislative reform. Last year, this parliament passed legislation which also abolished the limitation period of civil claims for compensation for victims of child sexual abuse, whether that abuse occurred in a government or non-government institution, or indeed any other setting.

That bill was further extended by amendments moved by the opposition to include all forms of abuse, including physical, mental and emotional abuse, which were unanimously supported by this chamber. However, that bill—the Limitation of Actions (Child Sexual Abuse) Amendment Bill 2018—in my view, represented a missed opportunity by the government to deal with the painful issue of past settlements, many of which were entered into by coercion. So this bill seeks to correct that wrong and I am glad that, on behalf of SA-Best, I am in a position to put it forward.

I urge the government and the opposition to see the merit in the proposed legislation by supporting this bill. I look forward to working with all sides of politics—the government, the opposition and the rest of the crossbench—to see the timely passage of the proposed legislation. With those words, I seek leave to conclude my remarks.

Leave granted; debate adjourned.

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