Limitation Amendment (Child Abuse Civil Actions) Bill 2015

Dr HUGH McDERMOTT (Prospect) [10.48 a.m.]: I support the Children and Young Persons (Care and Protection) Amendment (Protection from Serious Offenders) Bill 2015. The emotional turmoil of pain, suffering and sadness that child abuse causes lasts for a lifetime. Victims bear scars that never completely heal. Even decades after their torment they struggle with mental illness, family dysfunction, abuse, circles of poverty, self-medication and unemployment. Child abuse is one of humanity's greatest crimes, one for which victims are rarely able to find justice. Unlike many other torts, the actions of perpetrators of child abuse, the identification of victims and resulting effects of child abuse are often not discovered for decades. The current limitation period of only three years is grossly insufficient.

The victims of child abuse deserve the same justice that is available to everybody else when they are seeking financial redress for the crimes committed against them. They deserve more time to be able to seek the justice they deserve. I have heard horrific stories from survivors of child abuse—both physical and sexual. According to one account, the victim was forced to walk into a dark room in a urine-soaked sheet and to perform sexual acts on a number of older and stronger people under threat of further physical violence. The victim was in a boarding school and was not allowed to use the phone or to leave the premises to contact the police—he was helpless. Today, many years later, he suffers from mental illness and relives the horrific abuse in regular nightmares. He is unable to concentrate or to work, and is also unable to seek justice because the limitation period has passed. There are hundreds, if not thousands, of stories like this being brought to light as a result of the Royal Commission into Institutional Responses to Child Sexual Abuse.

Victims of child abuse have spent the majority of their lives suffering. They know who the perpetrators are. In institutional cases, they know the institution that employed paedophiles, and that the institutions were well aware of the violence being committed behind closed doors. The victims deserve justice, not only from a criminal law perspective but also from their civil right to compensation for medical treatment, lost financial potential, and for the many other areas in which their lives have been devastated. This House has a responsibility to protect the victims of child abuse. The march toward justice has come a long way.

I commend the New South Wales Government for its continued partnership with organisations such as Bravehearts and the Care Leavers Action Network in providing support for victims of child abuse. I also commend the Government for taking a more serious stance on child sexual abuse with the introduction of life sentences for the most heinous cases. That is a good start. However, there is still a long road ahead. No amount of legislative reform will undo the suffering of child abuse victims. This House cannot undo the past, but it can improve lives. Improving the lives of child abuse survivors is something we must do.

The Limitation Amendment (Child Abuse Civil Actions) Bill 2015 addresses three recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse. Recommendation 85 states that State and Territory governments must remove the limitation period in regard to civil actions founded on personal injury caused by the sexual abuse of the victim as a child. Recommendation 86 states that the removal of limitations should have retrospective effect, regardless of whether a claim was subject to a limitation period in the past. Recommendation 87 states that courts' existing jurisdictions and powers should be preserved so that their power to stay proceedings is not affected by the removal of the limitation period. Furthermore, the Opposition has heeded recommendation 88 as solid advice that these reforms be enacted as soon as possible.

Retrospectivity is always a difficult issue in law. Lawmakers must be careful to ensure that justice is paramount. In New South Wales, sexually abusing children has been a crime and a civil wrong for well over a century. The perpetrators of child abuse know that, and they have always known that their actions have consequences under the law. There is no criminal limitation period for child sexual abuse, and the perpetrators also know that. Given the gravity of the effects of child abuse upon the victim, the civil limitation period should match the criminal limitation period. The societal standard we hold that time does not run against justice for the most heinous crimes should be standardised. In many civil cases, limitation periods focus on efficiency. In many cases, that is fair. However, the current limitation period gives child abusers an unfair advantage. Extending the limitation period for child abuse civil actions will improve justice.

It is reported that on average it takes a victim 23 years to seek compensation. The existing limitation period is only three years from the time the victim turns 18. It is shameful that this House has allowed that 20-year gap to exist. Under current law, we are expecting already vulnerable and suffering young adults to file and prosecute a civil case against their abuser or the institution that permitted the abuse to occur. It is a simple principle of tort law that an individual is able to seek compensation for injury caused by either an intentional action or negligence on the part of another party. New South Wales has a long history of recognising the importance of this concept.

For example, it is enshrined in workers compensation legislation with the idea that employers must compensate employees for injuries they have suffered caused by the employer's negligence. We have long accepted that breaching a duty of care should not happen without consequence. It sickens me that in a large percentage of child abuse cases where the abuse has occurred under the care of institutions that duty of care has been breached in a most horrific way. It is unjust that we expect victims of child abuse who have barely begun to accept themselves as adults and who have limited knowledge of the legal system to take their abusers to court, and to do all of this before their twenty-first birthday. That is why the limitation period for child abuse actions must be removed.

The reforms introduced by my learned friend and colleague the member for Liverpool are long overdue. If accepted by this House, they will create avenues of justice for the victims of child abuse. However, they are only one part of the many reforms this House must implement to provide justice for victims of child abuse, and particularly victims who still suffer the after-effects of their abuse under State and institutional care. Civil litigation is a significant action for any person. The decision to take a matter to court is rarely made lightly.

This House knows that even after removing the limitation period many victims of child abuse will not litigate, and the emotional and mental pain of litigating such a matter is often too great a burden to bear. That is why the Royal Commission into Institutional Responses to Child Sexual Abuse has recommended the creation of a national redress scheme. The New South Wales Government must support the establishment of such a scheme. Recently, I gave notice of a motion urging the New South Wales Government to approach the Federal Government to start work on implementing a national redress scheme. I am pleased that in her contribution to this debate the Attorney General mentioned such a scheme and spoke about addressing this issue. [Extension of time agreed to.]

The five key recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse are: first, the establishment of a national redress scheme to process compensation claims for child abuse survivors in New South Wales; secondly, care leavers with a reasonable likelihood of having been abused should receive at least $10,000 and up to $200,000 in the most severe cases; thirdly, the New South Wales Government should pay New South Wales institutions' shortfalls; fourthly, religious organisations and residential facilities for children should be liable for child abuse in civil lawsuits; fifthly, there should be a program to provide unlimited counselling and psychological care throughout survivors' lives. This approach would allow victims of child abuse already piecing together what is left of their shattered lives to seek compensation without having to go to court. The money they receive will not undo the past. However, it will address issues such as diminished income resulting from not being able to work, and will cover the cost of counselling and psychiatric treatment.

It is important to note that financial distress is not a problem for all survivors. Many survivors are lucky to have a supportive network of friends and family. Having such a network has been proven to help enormously. Many other victims, however, were already vulnerable at the time of their abuse. They suffered in orphanages and homes under State and church care. These victims still have a limited support network. It is these victims that this House must work to support and protect. Recommendation 88 of the royal commission urges this House to act now to at least remove the limitation period. Unlike a national redress scheme, removing the limitation period is something we can do today. It is perhaps the fastest route to some degree of justice for child abuse victims.

There are a number of members of Parliament whom I must commend: the shadow Attorney General, the Attorney General and Mr David Shoebridge in the upper House, amongst others. But most importantly I commend the thousands of child abuse victims for their courage. There are hundreds of thousands of child abuse victims, many who remain silent. Even today, children will be abused in the most heinous way—and we would never know. They will face mental illness and develop a distrust towards others, and sadly many will take their own lives. I commend the courage of the thousands of child abuse survivors who say, "I will not allow what happened to me to happen to my children or to other children in our community."

I commend the courage of the most vulnerable members of society who were abused under institutional care, who never had the support of family, and who still face the world every day. I commend the courage of those who have spoken out about their past and have put this issue on the agenda today. This House is united in saying the State of New South Wales does not stand by when hundreds of thousands of child abuse victims are deprived of justice. New South Wales does not allow its most vulnerable people to suffer. New South Wales stands up for what is right and will give the victims of child abuse the voice they deserve. This bill is to be commended. I strongly support its passage through this House.

Be the first to comment

Sign in with

Or sign in with email

    Comments