Tasmania Proposes To Amend Limitation Period For Child Abuse Offences

Thursday 5 October 2017 @ 10.02 a.m. | Legal Research

Wednesday the 4th of October was the final day in which submissions could be made to the Tasmanian Department of Justice in relation to the proposed Limitations Amendment Bill 2017 (the Bill). This proposed Bill is presented in response to recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse as well as recommendations made by the Family and Community Development Committee of the Victorian Parliament in its Betrayal of Trust Report.

The overall aim of this proposed Bill is to amend the Limitation Act 1974 (Tas) (the Act), to allow for the abolition of limitation periods for the victims of child sexual or physical abuse. Abolishing limitation periods for child sexual abuse recognises the particular and special circumstances which arise as a consequence of the sexual or physical abuse of a child. This is particularly important in cases where the child victims may not be able to disclose their experience of abuse for many years after the occurrence of the incident.

The Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission)

The Royal Commission, established on Friday, 11 January 2013 by Her Excellency Quentin Bryce, Governor-General of the Commonwealth of Australia, is a commission dedicated to investigating the sexual abuse of children within Australian institutions. These institutions are those such as schools, churches, sports clubs and government organisations, and as such, the Royal Commission is investigating how these organisations have responded to allegations of child sexual abuse.

The areas of focus of the Royal Commission include:

  • “Understanding the nature, cause and impact of child sexual abuse in institutional contexts
  • What was learnt from private sessions
  • Child safe institutions
  • Findings about institutions
  • Interventions and treatment for children with harmful sexual behaviours
  • The need for advocacy, support and therapeutic treatment services
  • Redress and civil litigation
  • Criminal justice system.”

The Royal Commission’s Final Report is due on 15 December 2017. Tasmania’s proposed Limitations Amendment Bill reflects the Royal Commission’s final recommendations on criminal justice, which were published on 14 August 2017. The main focus of the Criminal Justice report was on the accessibility of ‘justice’ for survivors of child sexual or physical abuse. As stated in the report, whether survivors “feel that they can obtain ‘justice’ from a criminal justice response is likely to include considerations of:

  • How they will be treated by the various participants in the criminal justice system
  • Whether they will be given the information they need to make decisions
  • Whether their decisions will be listened to and respected
  • What support they will be given, both immediately within the criminal justice system and alongside it.”

Of specific importance in the report is the idea that, because many child survivors of abuse feel that they will not obtain fair treatment or justice in the criminal justice system, many survivors will not report the incident either at all, or for many years. The report therefore recommended that “any remaining limitation periods for charging child sexual abuse offences should be removed and the removal should have retrospective effect.” The Royal Commission’s formal recommendations were:

“30. State and territory governments should introduce legislation to remove any remaining limitation periods, or any remaining immunities, that apply to child sexual abuse offences, including historical child sexual abuse offences, in a manner that does not revive any sexual offences that are no longer in keeping with community standards.

31. Without limiting recommendation 30, the New South Wales Government should introduce legislation to give the repeal of the limitation period in section 78 of the Crimes Act 1900 (NSW) retrospective effect.”

The Limitation Act 1974 (Tas)

The Act currently dictates the limitation period, which is the amount of time after an incident in which a person may litigate in relation to that incident, for personal injury in section 5A.

S 5A: (3) An action for damages for negligence, nuisance or breach of duty (whether that duty exists by virtue of a contract or a provision made by or under an enactment or independently of any contract or any such provision), where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of, or include, damages in respect of personal injuries to any person, must not be brought after the expiration of whichever of the following periods of limitation is the earlier:

  1. 3 years commencing on the date of discoverability;
  2. 12 years commencing on the date of the act or omission which it is alleged resulted in the personal injury or death that is the subject of the action.

Section 5A is then extended by section 26 which states

s 26(1): “ Subject to this section, if on the date when any right of action accrued for which a period of limitation is prescribed by this Act the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of 6 years, or in the case of any action for which a less number of years is prescribed by this Act as the period of limitation then such less number of years, from the date when the person ceased to be under a disability or died whichever event first occurred notwithstanding that the period of limitation has expired.”

The Limitations Amendment Bill 2017

The amendments made by the proposed Bill include omitting subsections (1), (2) and (3) of section 5A of the Limitation Act 1974, as per section 6 of the Bill, and substituting a new subsection (3) into section 5A of the Act which states:

“An action for damages for negligence, nuisance or breach of duty (whether that duty exists by virtue of a contract or a provision made by or under an enactment or independently of any contract or any such provision), where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of, or include, damages in respect of personal injuries to any person, must not be brought after the expiration of 3 years commencing on the date of discoverability.”

More importantly with regards to child sexual abuse, a new section 5B is proposed to be inserted into the Limitations Act which dictates that there is to be “no limitation period where sexual or physical abuse of minor”.

s 5B(1) Despite section 5A and section 26A –

(a)    An action for damages for personal injury to a person arising from or related to the sexual assault or physical abuse or neglect of the person when the person was a minor; or

(b)   An action for damages under the Fatal Accidents Act 1934 in respect of the death of a person arising from or related to the sexual assault, physical abuse, or neglect, of the person when the person was a minor –

may be brought at any time.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Sources:

Related Articles: