Second Reading
Resumed from 13 March.
HON ALISON XAMON (North Metropolitan) [3.06 pm]: I rise as the lead speaker for the Greens and we indicate our support for this Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Bill, and I am very pleased to be able to speak on it. It has been a long time coming. I want to commend the drafters for their work on this legislation because in my opinion it has been pretty well done. The bill responds to the recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse that statute limitation periods for child sexual abuse cases be removed. The royal commission was, of course, established in 2012. I think everyone here would agree that the findings of the royal commission have been absolutely devastating and heartbreaking for many, many people, as well as being quite groundbreaking in what it set out to do. It was massive and in total involved almost five years of work. The royal commission handled 42 041 phone calls; received 25 964 letters and emails; held 8 013 private sessions; and made 2 575 referrals to authorities, including police. We are talking about a massive body of work that was undertaken. In the final report, which was delivered in December, the royal commission made 409 recommendations, which aim to address institutional sexual abuse and to make institutions safer for our children into the future.
The bill that we are discussing today is the first stage of legislative reform that is responding to those recommendations. It aims to remove a number of obstacles to civil litigation by survivors of child sexual abuse against perpetrators and/or the institutions that are legally responsible for those perpetrators’ actions. This is a really tricky area to legislate for and, as such, the bill before us has been very well done and very carefully and thoughtfully drafted. I believe there is very widespread support for the removal of limitation periods for civil actions based on child sexual abuse. I am aware that there are people who are desperate to see this legislation passed as soon as possible.
I should also acknowledge the private member’s bill that was introduced in 2015 by the then member for Eyre, Dr Graham Jacobs, which sought to achieve this aim. I am also aware that a number of people would like to see the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Bill 2017 amended to extend its provisions. I will discuss that further in a moment. However, I acknowledge that, unfortunately, the government has made it very clear that at this point it will oppose any attempted amendments aimed at extending the bill.
The bill will amend the Civil Liability Act 2002 to stop a child sexual abuse case from failing solely because of a lack of a defendant or because the office holder or unincorporated institution that was responsible for the actions of the perpetrator and the institution no longer holds the office, such as if they are retired or deceased. The mechanism that will be employed is that if the institution is still unincorporated, the current office holder will become liable for the actions of the perpetrator and the institution, so the person will be sued in the name of the office, not as an individual. This will apply both retrospectively and prospectively. If the current office has changed, it will be deemed sufficient if it is substantially the same as when the cause of action accrued; otherwise, the current head of the institution will be taken to be the current office holder. If the institution is now incorporated, the incorporated institution rather than the current office holder will be liable. Again, that provision will apply retrospectively and prospectively. When it is appropriate, the current office holder or institution, whichever applies, can seek a contribution from any liable joint tortfeasor. The proposed legislation seeks to stop a successful sexual abuse case from being unable to enforce damages awarded solely due to the complicated asset-holding structure of the institution. I suspect that this particular provision will provide significant comfort to a number of people who, I believe, will seek remedy for what has happened to them. Put simply, the mechanism is that if the institution is unincorporated, the office holder can access the institution’s assets—not the office holder’s personal assets, remembering that the office holder will not be sued in a personal capacity but in terms of the role they play in the organisation—including trust assets to satisfy the liability. The Corporations Act 2001 will be ousted insofar as it would prevent this from happening. If the institution is incorporated, it will be the institution rather than the office holder that can access the institution’s assets. Again, this will include trust assets and, again, the Corporations Act will be ousted insofar as it would prevent this from happening.
I have a question that I hope will be answered during the minister’s second reading reply. I, like many other members, received a letter from the Australian Lawyers Alliance that details a number of provisions. The Australian Lawyers Alliance understands that the trust provisions will not apply to incorporated associations. However, that has not been my reading of the bill. I hope that the minister can confirm for the record that the trust provisions will apply to incorporated associations as well as unincorporated associations. I certainly hope that I have got that correct and that is the case. If so, both mechanisms will apply only prospectively, but I understand from the briefing that that is because there have been no Western Australian cases in which a successful plaintiff has been unable to enforce damages due to the defendant’s asset structure. Again, I hope that it will be confirmed in Hansard that that is indeed the case. Both mechanisms are facilitative but are not enforceable; that is, they will allow, but will not compel, damages to be paid from trust assets. This will allow institutions some choice about how they pay damages, which, I think, is a sensible way to proceed because it will minimise the risk that particular programs, such as Catholic schools, will be jeopardised. The government has indicated that it will monitor the legislation and if institutions do not pay damages, a further bill will ensue. It will be very important to keep an eye on that.
The bill seeks to stop a child sexual abuse case from failing solely because the institution has changed in certain ways since the cause of action accrued, such as a name change or a change of organisational structure, or if it has become incorporated, merged or changed location. The mechanism is to deem continuity of the institution and this will happen in a couple of ways. If the current institution is substantially the same as when the cause of action accrued, this will be deemed sufficient for it or the office holder to be made the respondent to the proceedings. If the current institution is the successor of the institution where the cause of action accrued, then it will be taken to be the same institution.
The bill also provides that a cause of action accrues at the time of the act or admission giving rise to the cause of action. This will assist to identify the institution and the office holder at that point in time, which will assist with determining liability. It will not affect the limitation period because the limitation will be removed by part 3 of the bill.
The bill also provides that a court awarding damages in a child sexual abuse action must—there can be no discretion—deduct any compensation, previous Redress and ex gratia payments that have already been made for the child sexual abuse. The explanatory memorandum notes that this also applies to criminal injuries compensation. This is ostensibly being done to stop people from receiving multiple payments arising from the same offence. I note that if a court cannot work out—I think this will be particularly pertinent for previous redress schemes—the proportion of the payment that related to child sexual abuse, it will effectively be deemed to be 50 per cent of that payment.
The bill will reduce the chance of damages being swallowed by legal fees by providing that lawyers representing a person in a child sexual abuse action cannot charge more than they do in an applicable cost determination. The Legal Costs Committee, which is an independent statutory authority, makes cost determinations under the Legal Profession Act 2008, and the provision applies prospectively to services provided after the commencement of the provision. The explanatory memorandum notes that section 280 of the Legal Profession Act allows a court or judicial officer to permit a lawyer to charge more than a cost determination if the cost determination is inadequate when it is deemed that a case is of an unusual level of difficulty or complexity or if there is a significant importance to the matter.
I have concerns about proposed section 15L. I am aware that the Australian Lawyers Alliance straight-out opposes it. I think it is very important that would-be plaintiffs have access to lawyers and I recognise that, clearly, cases, particularly the first cases, are likely to be quite complex, but I also agree that it is important that we ensure that when people get payments, they are not subsequently swallowed by legal fees. I suppose this will always be a bit of a balancing act because we want to make sure that lawyers are appropriately and thoroughly going through cases and making sure that everything is covered comprehensively. It is reasonable to expect that when firms decide to take on these matters, they already possess a level of expertise in this area. That will minimise the capacity for awards to effectively be gobbled up by fees. The Australian Lawyers Alliance has concerns about this. It is important to ensure that we do not create a market for people to use one person’s case to effectively learn on the job. The government aims to balance these competing concerns by issuing guidelines on how to run a case of this type efficiently, and that would certainly help.
Importantly, part 3 of the bill amends the Limitation Act 2005 to remove limitation periods on all child sexual abuse actions relating directly or indirectly to personal injury of the person who experienced the child sexual abuse. This is a welcome and long overdue change. The second reading speech indicates that the current limitation period is three years, which commences on the victim’s eighteenth birthday if the victim was a child at the time. Previously, until 5 November 2005, it was six years, which was no time at all really to enable people to take action or even to begin to reconcile what had happened to them.
Sexual abuse includes both acts and omissions, but it is otherwise not defined. Therefore, courts will interpret the meaning in the usual way, which may be broader than crimes under the Criminal Code. It includes all causes of action, such as tort, trespass, contract and under statute. However, the court’s usual powers are preserved. The bill also includes a note specifying that this includes the power to summarily dismiss or permanently stay proceedings if the lapse of time is so serious as to render a fair trial for the defendant impossible. Again, the amendments are going to apply retrospectively as well as prospectively regardless of when the child sexual abuse occurred. The bill provides that an action can commence even if it was previously statute barred and even if a judgement was previously given in favour of the defendant on that basis—for example, if a costs order was issued against the plaintiff. This provision is modelled on Queensland law. An application can be brought to set aside that judgement before the new action is started. The application to set aside can be made to the same court that made the order or to the Supreme Court. The court can also set aside the previous judgement insofar as it relates to the new action if it is satisfied that it is just and reasonable to do so. The payment or cost paid by the plaintiff to the defendant under the previous judgement cannot be recovered, but can be taken into account in the new action if the court is satisfied that it is just and reasonable to do so.
The Australian Lawyers Alliance again raised concerns that there is no setting aside of judgements entered into because there was no-one to sue or no assets available to meet a claim. From the briefing, I understand that when there was no-one to sue, no case would have been brought in the first place and hence no judgement. The bill’s proper defendant provisions will now allow such plaintiffs to bring a case. Unlike in other states, in WA no cases have been stymied by a lack of assets available to meet a claim. Should there be such cases in the future, the bill’s provisions about access to trust assets aim to assist with that. I ask, for the record: will the minister please confirm that this understanding is correct?
The bill provides that an action may be commenced even if a previous action was brought and settled after it was statute barred. This will address situations in which damages were paid to the plaintiff by agreement but at a discounted rate because of the bar on bringing any court case that would otherwise have sought a greater amount. Again, this provision is modelled on the Queensland law. An application for leave to bring proceedings is made to a court that has jurisdiction to deal with the proposed new action. If it is satisfied that it is just and reasonable to do so, the court can grant leave with conditions and set aside the previous settlement to whatever extent is necessary. The settlement agreement and any ancillary agreement relating to the settlement, other than if it is an insurance contract, will be voided insofar as it relates to child sexual abuse, which is the subject of a new action.
Under the void of settlement, payment cannot be recovered and can be taken into account in the new action if the court is satisfied that it is just and reasonable to do so. I note that if the previous settlement did not relate solely to child sexual abuse and did not specify what portion related to child sexual abuse, it is effectively deemed, like the previous provision, to be half the amount paid under the previous settlement related to the child sexual abuse. The transitional provisions allow for the reopening of previous cases that were finalised or settled because they were statute barred. That is a sound and just piece of reform.
What is the bill not doing? The bill is dealing with limitation periods and ensuring that we can identify the proper defendant in the context of civil litigation, but the bill will not change the need for the plaintiff to prove their case in the usual way. The bill does not apply to other forms of child abuse and neglect and, therefore, normal limitation periods will continue to apply in those cases. It also will not apply to third parties such as a parent who may end up suffering nervous shock upon discovering their child was abused. There have been numerous cases of that.
The bill does not apply to child sexual abuse causes of action when the victim has died. In other words, it does not apply to cases that were actionable under the Fatal Accidents Act 1959 in which the victim died as a result of child sexual abuse or that were actionable under the Law Reform (Miscellaneous Provisions) Act 1991 in which the victim died after 24 October 1942 and not necessarily as a result of the child sexual abuse. The bill does not permit previous cases to be reopened for any reason apart from statute barring. Unless, effectively, a plaintiff has been simply unable to proceed, it is not going to open the floodgates to people who have already been through the process and settled those matters appropriately.
The Australian Lawyers Alliance has expressed concern that the bill should allow the reopening of cases in which there was no-one to sue and no assets available to claim. From the briefing, I understand that when there was no proper defendant, no case was able to be brought previously. Therefore, we should not have anyone affected under those provisions. The bill is remedying this by identifying a proper defendant so that the case can be brought if wished. Unlike in some other jurisdictions, there have been no WA cases in which a plaintiff has been stymied as a result of the asset structure of the defendant. For future plaintiffs, the bill will give defendants access to assets, including trust assets, I am hoping, to pay damages. The problem that institutions are not technically liable for the actions of some child sex abusers connected to them will be addressed by a further bill.
As I have noted, I think that this is a really good bill. However, I acknowledge that I have been lobbied by quite a large number of people who have been very disappointed. There is a very strong desire to see the provisions extended to cover all forms of child abuse, including physical abuse, emotional abuse, psychological abuse and neglect. There has been a fair bit of distress from people who feel as though focusing only on sexual abuse somehow takes away from the extent of their trauma and experiences. They would like to have seen these provisions extended. We know that those forms of abuse are horrendous and create lasting damage to children, and are grounds for the removal of a child under Western Australian child protection laws. I make the comment that the UN Convention on the Rights of the Child treats all forms of child abuse as being of equal seriousness. Child sexual abuse can be intricately linked to other forms of abuse and it can be quite difficult to separate them out. This can lead to lengthy disputes and litigation about definitions, causation and attribution. I am also concerned that it has the potential to substantially defeat the purpose of the proposed amendments.
I note that the Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Bill 2017 does not define the meaning of sexual abuse, so the courts will need to interpret it as per its ordinary meaning. Although this potentially provides some latitude to the courts, I would have much preferred the bill to take a more holistic approach and include other forms of child abuse. Redress WA, for all its faults, included other forms of child abuse and neglect because, I would argue, it recognised the interrelated nature of the way in which abuse affects children. I am also concerned about the possibility of survivors bringing proceedings under the bill for child sexual abuse reliving the trauma of other statute-barred forms of abuse. It would be a terrible thing if the bill were to have this result if it could have been avoided. I am also concerned that excluding other forms of child abuse could have the effect of rewarding perpetrators for successfully silencing their victims until after any potential claim was statute barred.
I do not know why we are needlessly creating the problem of having to untangle different forms of abuse suffered by the same plaintiff, potentially at the hands of exactly the same perpetrator, making litigation more complex and probably more expensive. I note that the bill may technically cover physical abuse if it is done for the perpetrator’s sexual gratification, but I am concerned that it is likely to be more difficult for the plaintiff to prove this than to simply prove that physical abuse had occurred in the first place.
I acknowledge the lobbying of Tuart Place, the Community Legal Centres Association (WA) Inc and, again, the Australian Lawyers Alliance, to try to have those provisions extended. I note that all other states now have legislation to lift the statute of limitations, and that Victoria, New South Wales and the Northern Territory have all chosen to extend it to other forms of child abuse. If this is going to be the argument, we already know that benchmarks exist that can delineate between culturally accepted disciplinary practices such as spanking, which was common in previous generations, and what we now know to be abuse. I find it quite difficult to see why we have not chosen to follow these states.
However, given that the government has indicated that this point is absolutely not negotiable, our only options in respect of this aspect are either to pass the bill as it stands, or not pass it at all. After much contemplation, in the interests of seeing the bill passed, I have decided to not move any amendments to extend the bill to other forms of child abuse, much as I very much would have liked to. For that I would like to apologise to those people who very much wanted to see this bill extended, and were very much hoping that that was something that would be put and contemplated and, ideally, amended and passed. I have, no doubt in common with other members, received correspondence from members of the electorate, urging me to do all I can to pass the bill quickly, and I absolutely recognise that for the victims of child sexual abuse whom it will undoubtedly benefit, this bill is too important to hold up for any reason at all. This is about trying to achieve the balancing act of hurting people within the community.
I want to hear more from the government to justify why the policy decision was made in the first place to exclude other forms of child abuse and neglect, except in cases in which the plaintiff somehow can prove that that treatment was connected to sexual gratification. In my opinion, it would have been easier to have just put it into this piece of legislation and make sure that we met the needs of a whole range of people who have been permanently damaged by the effects of child abuse.
I know there is still more work that needs to be done: the explanatory memorandum states that this is the first stage of legislative reform responding to the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse in its “Redress and Civil Litigation Report”. I understand from the briefing that the next stages are going to be to monitor the effectiveness of this bill and that there is also going to be a further bill to address the need identified by the royal commission for a prospective law to make institutions liable for child sexual abuse perpetrated by people connected with the institution. This bill will identify the proper defendant, should an institution be liable. The Australian Lawyers Alliance has advocated a mechanism of vicarious liability plus a close connection test, which differs from the non-delegable duty plus reverse onus recommended by the royal commission. One of the questions I have for the government is: when is this further bill likely to be introduced?
In the wrap-up of my contribution I want to make some comments about what is happening with the commonwealth Redress Scheme, because it is related to this issue. The royal commission has provided a clear map for action and we know that the issue of redress is an area in which there is outstanding work to be done. In November 2016, the commonwealth government announced that it would establish a redress scheme by July this year for survivors of child sexual abuse who were abused in commonwealth institutions, with state, territory and non-government institutions able to participate by opting in. On 26 October 2017, legislation was introduced to the federal Parliament to establish the scheme. New South Wales, Victoria and, as of yesterday as I understand it, the Australian Capital Territory, have now opted into the scheme, and WA is under significant pressure to join.
I acknowledge that there is a range of concerns and unresolved issues, including the proposed exclusion of prisoners serving sentences of five years or greater. I note that the state Attorney General is taking a very strong line on this and I support his taking this position. Excluding prisoners fails to acknowledge the connection between childhood trauma and subsequent offending behaviours. Frankly, it is just unfair to categorise some survivors as deserving of redress and others as undeserving. I hope there is going to be movement on this front because it is inherently unjust. I understand that the federal government may reconsider this issue and I certainly hope it does.
I know there are also outstanding issues in relation to funding; that was always going to be the case, including the question of who has responsibility for funding redress payments for the commonwealth child migrants who were settled in WA. I understand we are talking about approximately 3 000 people. We still need to sort out who is going to be the funder of last resort, and what the commonwealth government is going to fund. Again, we have a narrow definition of abuse in this scheme, which is limited to sexual abuse, and I have already raised the issues of why this is problematic. It does not recognise the traumatic impacts of other forms of abuse and it is an artificial separation of different types of survivors. This is in contrast to the broader Redress WA scheme categories. The Redress WA scheme was, frankly, terrible in many ways, but one of the things it did was recognise the impact of physical abuse. Abuse, in that scheme, meant physical, sexual or emotional and psychological abuse. We need to have a more holistic approach to dealing with the intertwined issues of abuse. The length of time the scheme will remain open is still in dispute. The commonwealth has said 10 years, but the royal commission note stated that it thought the scheme should be open-ended. I note that some stakeholders, particularly Tuart Place, have indicated that they want what they call the unfinished business of Redress WA resolved before there is any consideration of the commonwealth scheme. This has been relayed to me very strongly—that is, the level of hurt and damage that people are still feeling about the way Redress was mismanaged. I have spoken many times in this place, particularly in the thirty-eighth Parliament, about the terrible impact that Redress WA had on many people. It became a stark example of the considerable capacity for redress schemes, if they are not done well, to cause secondary harm, and for victims to be left feeling devalued and re-abused. Despite these concerns, there is no question that redress remains an outstanding issue, and it is important that the issues are worked through and the mistakes of the past are not repeated, because they can do more damage than good.
Although the bill before us today is really important, some survivors may not want, or be able, to go through a court process that requires the case to be proved through a potentially traumatic revisit. That is also part of the reason that redress is important. Redress becomes a really important way of acknowledging how badly these children were failed, that what happened to them was totally unacceptable, and that it has had a devastating impact on their lives. We now know that many of the people we are talking about are ageing and ill, and they are quite vulnerable; they have been waiting for a very long time. It is vital that the commonwealth scheme is done properly.
The message sent by this legislation is important; that is, it does not matter how long ago it happened, child sexual abuse is a terrible wrong and survivors have a right to seek justice. That is good, and I think that the community is well and truly on board with that. The story behind the need for this legislation is devastating and a terrible indictment upon us as a society. We are talking about vulnerable children who have been failed by adults who are supposed to protect them. We are talking about people who have been unable to tell their stories and to seek justice due to fear and trauma, and we are talking about acts that were so horrendous that they can take years to process, if processing them is ever even possible. The bill obviously will not change the past; it cannot fix the terrible things that have happened to people, and it cannot take away the fact that the survivors were failed by people. Abolishing the limitation period for child sexual abuse is an important step in helping people to seek justice and redress. The royal commission’s report stated —
There is now clear evidence that it is likely to take many survivors years, even decades, to disclose their experience of sexual abuse as a child.
...
Many survivors will not disclose their abuse until adulthood.
The definitive point of this piece of legislation is that the analysis of the royal commission’s private sessions revealed that, on average, it takes survivors 22 years to disclose their abuse. The royal commission redress and civil litigation report describes a heartbreaking list of examples of cases that failed to go ahead because of the sorts of barriers that this piece of legislation is trying to address. The existence of limitation periods has created a significant and often insurmountable barrier for many survivors who have got to the point of finally being able to consider pursuing civil litigation. Quite simply, limitation periods have prevented justice being achieved for too long.
The Greens are pleased to support this bill.
[Speeches and comments from various members]
Debate interrupted, pursuant to standing orders.