On Wednesday, 22 November 2017, the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Bill 2017 (the Bill) was introduced into the WA State Parliament. If enacted the proposed legislation will make it easier for the victims of historical sexual abuse, including abuse which took place within government or religious institutions, to take legal action. It will mean that victims of child sex abuse in WA who did not report their abuse within six years will be eligible to seek compensation as the Bill seeks to remove the statutory limitation period.
A key motivation for the Bill was the need to respond to the findings of the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) which found that the average time taken for a victim to disclose child sexual abuse was 22 years, while current periods of limitation of actions legislation typically provides a much shorter period for making a claim - in the case of WA the current law prevents civil claims for sexual abuse-related compensation being made after six years.
The Bill proposes the amendment of the Civil Liability Act 2002 (WA) and the Limitation Act 2005 (WA) and is intended as the first stage of a process of legislative reform in WA which seeks to respond to the recommendations made by the the Royal Commission in its Redress and Civil Litigation Report tabled in the Commonwealth Parliament on 14 September 2015.
In Part 2 the Bill makes amendments to the Civil Liability Act 2002 (WA) with the aim of providing a legal basis for commencing an action against institutions in the name of their current office holders for historical child sexual abuse. The need for these amendments arises from the difficulties that a victim may face in identifying a proper defendant, particularly those arising out of the lack of perpetual succession in unincorporated institutions as identified in the New South Wales Court of Appeal decision of Trustees of the Roman Catholic Church, The Archdiocese of Sydney v Ellis (2007) 70 NSWLR 565;  NSWCA 117 (24 May 2007). Such difficulties were highlighted by the Royal Commission as ". . . creating impediments to justice for survivors of child sexual abuse".
Other amendments in Part 2 make provisions allowing institutions, trustees and office holders to use assets that are held by or for liable institutions or office holders to discharge any child sexual abuse liability. These proposed amendments enable institutions to meet their liabilities to the survivors of child sexual abuse notwithstanding any restrictions that would otherwise arise from the institution’s "asset holding structure."
To prevent double compensation Part 2 of the Bill contains provisions providing for prior compensation payments received by a person for child sexual abuse to be taken into account by a court in awarding damages in a child sexual abuse action. Part 2 also provides for a cap on the legal fees that may be charged by a law practice acting for or appearing on behalf of a person in a child sexual abuse action.
Amendments to the Limitation Act 2005 (WA) are in Part 3 of the Bill and they remove the limitation periods for all child sexual abuse actions, both retrospectively and prospectively - implementing recommendations 85-86 and 88 of the Royal Commission's Report. Without removal of these time frames, the Royal Commission found that ". . . survivors, who typically do not report their abuse for long periods after the limitation period has expired, would be unable to have their claims of child sexual abuse determined by a court on their merits."
Further Part 3 also attempts to remedy some of the past injustices caused by the operation of strict limitation periods to child sexual abuse actions by providing for the setting aside of previously barred and previously settled causes of action under certain circumstances.
The WA Premier has said in a Media Release that the WA Government was committed to ". . . ensuring survivors of child sex abuse are treated with dignity and respect". He recognised that the ". . . sexual abuse of children is one of the worst crimes imaginable" and the ". . . fact that these crimes may have happened many years ago should not be a barrier to being able to seek justice and compensation in our civil courts".
The WA Attorney General John Quigley (the AG), has said in a Media Release that:
Other states for example, NSW (see Civil Liability Amendment (Institutional Child Abuse) Bill 2017), and Queensland (see Civil Liability (Institutional Child Abuse) Amendment Bill 2017) have also introduced similar legislation. However, the AG says of the WA legislation:
It does this by overcoming procedural issues such as who is the right party to sue, as the AG says in his Media Release:
Certain provisions of the Corporations Act 2001 (Cth) are to be overridden by the Bill:
Legal fees are capped by the Bill to ensure fair treatment:
The AG is reported as saying he ". . . hoped the bill would be passed by Christmas, but he recognised the opposition would need time to review and consider the new legislation". On Tuesday 28 November 2017 the Bill was declared to be urgent in the Legislative Assembly under Standing Order 168(2).
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Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Bill 2017 and 2nd Reading Speech and EM as reported in the TimeBase Law One Service.
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