Bill To Abolish Statute of Limitations Passes both Houses in Western Australia
On 22 November 2017, the Western Australian Government introduced a Bill, taking its first steps towards abolishing the statute of limitations that have severely impacted an abuse victims ’ access to civil justice.
Now, 4 months later, on 10 April 2018, the Bill was agreed to by the Legislative Assembly and will come into operation following Royal Assent and Proclamation.
In a first for Australia, the Bill provides a legal basis for suing institutions for historical child sexual abuse in the name of the current officeholders. It highlights the legal difficulties present in suing an unincorporated institution. Many of the churches and other institutions where children were abused, were not at the time of the abuse, incorporated. Provisions within the Bill provide a means to overcome the difficulties that a victim may face in identifying a proper defendant, particularly those arising out of the lack of continuous succession in unincorporated institutions as identified in the New South Wales Court of Appeal decision of Trustees of the Roman Catholic Church for the Archdiocese of Sydney v Ellis and Another (2007) 70 NSWLR 565.
The Bill also includes provisions overriding certain sections of the Federal Corporations law, which will enable office-holders to access the assets of related trusts and corporations for the purposes of satisfying the judgment amount.
Furthermore, the term “sexual abuse’ is intentionally left undefined within the Bill. As a result, the court will have the latitude to determine the application of the term in accordance with the ordinary meaning and common understanding. Therefore, a court will not be confined to acts or omissions that are criminal offenses. This is consistent with the focus of the Royal Commission and its Report.
The Bill also provides avenues to deal with matters that were previously settled and provides the victim an opportunity to make applications for previous settlements to be set aside. This will, of course, open the floodgates for many claims which have in the past been forced to settle for a mediocre amount.
Most importantly, it is well documented that many survivors of child sexual abuse do not disclose their experiences or act on them until decades after the abuse, therefore, this Bill provides the removal of an important barrier, allowing survivors of child sexual abuse the opportunity to seek justice and compensation in our civil courts, regardless of time that has passed.
However there is more work to be done in Western Australia which is yet to sign up to the Commonwealth redress scheme for victims of institutional child sex abuse because the WA Government has expressed concerns about how the scheme, which has a $150,000 cap, will apply to child migrants and child sex abuse survivors with criminal convictions. Victoria and New South Wales are the only states as yet which have formally committed to the national redress scheme which is due to commence on 1 July 2018.