LIMITATIONS OF ACTION AND OTHER LEGISLATION SPEECH | 08 NOVEMBER 2016

Posted On: 9 Nov 2016

The Limitation of Actions (Institutional Child Sexual Abuse) and Other Legislation Amendment Bill 2016 was introduced by the Premier on 16 August in response to the issues paper released earlier that month—The civil litigation recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse: Redress and civil litigation report—understanding the Queensland context. Preceding this bill, the royal commission, which commenced in 2013 and was commissioned by the Commonwealth government, released its Redress and civil litigation report on 14 September 2015. The Queensland government is currently considering the recommendations contained in that report relating to Queensland. On 18 August 2016 the honourable member for Cairns introduced the Limitation of Actions and Other Legislation (Child Abuse Civil Proceedings) Amendment Bill as a private member’s bill.

Both bills were referred to the Legal Affairs and Community Safety Committee to be considered together. The process involved the invitation of submissions plus a number of public and private hearings which took place during the consideration of these two bills. Only 23 submissions were received which, on the surface, seems fairly light on. However, when we look at the subject matter we can see that it is a highly emotional and traumatic experience to recall and give evidence from many years ago in front of total strangers like politicians and parliamentary staff. I recognise the bravery of those who did come forward. This was evidenced during discussions around the reintroduction of the right to trial by jury for civil actions for personal injury arising from child abuse. Witnesses were divided as to the abused victim’s reaction to that scenario and being exposed to more strangers.

The committee was required to report on the bills by 1 November, which it subsequently did. As a member of this committee, I acknowledge the respectful approach of committee members, research staff and witnesses to this highly sensitive and delicate issue. I also acknowledge the honourable member for Cairns for his private member’s bill and note his compassion towards abuse sufferers.

The committee’s task was to consider the policy outcomes to be achieved by the legislation as well as the application of fundamental legislative principles. After careful deliberation the committee agreed to pass only the government bill.

An issues paper was released in August 2016. This paper seeks feedback on the scope of the recently announced removal of the statutory limitation period in relation to claims for child sexual abuse and more broadly how the commission’s civil litigation reform recommendations, relating to claims for damages for harm arising from child sexual abuse in an institutional context, might operate in Queensland. The Attorney comments in the foreword that this paper will provide an opportunity for public comment regarding other civil litigation reform recommendations not covered in the government bill before us today.

The issues paper, which relates to sexual abuse, specifically raises a number of pertinent questions. It mentions broadening abuse to include physical and emotional and discusses whether other or all settings, including the family setting, foster care and out-of-home care, should also be included.

Provisions in the government’s bill aim to abolish limitation periods for institutional child sexual abuse, introduce class actions and improve solicitors’ trust accounts administration by replacing current funding arrangements under the Legal Practitioner Interest on Trust Accounts Fund with funding through the Consolidated Fund. In addition, the JP QCAT jurisdiction will be preserved and permanently embed the arrangement—and I notice this was commenced by the LNP—whereby justices of the peace will hear certain minor civil dispute matters in the Queensland Civil and Administrative Tribunal.

The private member’s bill, the Limitations of Actions and Other Legislation (Child Abuse Civil Proceedings), on the other hand would include the following: reintroduce the right to trial by jury for civil actions for personal injury arising from child abuse; retrospectively remove civil statutory time limits and procedural time limits for personal injury actions arising from child abuse for a range of actions; make a number of amendments to the Civil Proceedings Act 2011; and define child abuse in the above provisions as not restricted to an institutional context and as including both sexual abuse and serious physical abuse.

The committee comment on page 13 of report No. 41 of the Legal Affairs and Community Safety Committee as follows—

Committee members note the overwhelming evidence received via witnesses attending the hearing and submissions to the government Bill seeking to widen the definition of “child sexual abuse” in the government Bill to provide for victims to seek claims other than those in institutions. Therefore, committee members request the government in the second reading of the government Bill to give serious consideration to provide for such claims.

As honourable members have already heard, non-government members made two recommendations found on page 6 of the committee’s report that urge the Premier to go further and make these amendments during the second reading debate. One is to make amendments to the government’s bill that would broaden the removal of limitations on claims to survivors of non-institutionalised sexual abuse and the other is to give the court the ability to reopen previous deeds of settlement that have been entered into with respect to time barred sexual abuse. These amendments were flagged by the Leader of the Opposition, the honourable member for Clayfield, on 16 August in a motion to take note.

Most submissions received by the committee were in favour of allowing prior deeds and settlements to be reopened. Knowmore’s submissions stated—We have dealt with many clients who have told us that they felt that they were effectively coerced into settling their claims, on the basis that if they did not accept the amount of monetary compensation offered by the institution (which they perceived as inadequate), their only other option was to take the matter to court, in circumstances where they were in receipt of advice that any such action would in all likelihood be doomed to failure, due to the limitation barrier alone.

Knowmore continued—In those circumstances, the majority of our clients in such positions understandably resolved their claims by accepting the financial settlements offered, where, on any objective assessment, that settlement was manifestly inadequate and arbitrary in nature, bearing no similarity at all to the quantum of damages they would have received had they been able to litigate their matter before a court.

Micah Projects Inc. made the following observations in this regard—Micah Projects advocates that the matter of Deeds of Release needs to be within legislation preventing any parties from blocking civil actions due to historical settlements through past signed Deeds of Release. However, Micah Projects supports that money already awarded through historical settlements for any party be taken into account in proceedings.

During the committee hearings a number of questions were raised including about the expected numbers of survivors who may come forward. When one considers the hundreds of thousands of children who were in care, one might presume the number of complaints the passage of bills of this nature would enliven would be high, but it appears that that is not necessarily the case. Reasons given were the passage of time—in many cases decades had passed since the abuse took place; institutions have closed; perpetrators may have died; and many of the children have moved on, while others do not want to relive the significant trauma or horrific memories.

Questions as to whether an institution carries responsibility for their employees who abuse children in their care and what recourse survivors have if the institution no longer operates or has changed owners or reinvented themselves to avoid claims against them were also canvassed. When asked where foster care fitted in this bill, a senior policy adviser from the Department of Justice and Attorney-General replied—If the foster care was through a state based formal arrangement, we anticipate that child sexual abuse in the foster care arrangement would be picked up by the legislation. We do understand, however, that, given that we are talking about a lot of historical abuse, there may have been some foster care arrangements that were not necessarily facilitated through the state. They might have been private arrangements. Whether they would come within scope, I could not answer that.

The non-government members’ recommendation No. 1 addresses this by extending the right to claim to circumstances other than an institutional sexual abuse setting. As a society we have failed our most vulnerable and we are paying the price with escalating mental health reporting as countless victims of childhood sexual abuse seek help for addictions, health issues and difficulty in establishing and maintaining relationships. We heard from the honourable member for Coomera of the wideranging lifetime of hardship and problems that this group of sufferers experience after this appalling abuse.

I recall nursing at the Children’s Hospital in Adelaide in the seventies—I have mentioned my first career on several occasions in this place—and I could not comprehend then how anyone could abuse children to the extent of the shocking injuries I saw. I still cannot today. Those memories are vividly etched in my memory as are the children’s names and their injuries. Terrible cases of abuse involved injuries and physical harm to countless children that scarred them for life and prevented them developing into the fully functioning adult they had every right to be.

When I was the shadow minister for the child safety system in 2004—my very first year as the member for Currumbin—I found myself once again confronted with images and stories of children being abused and harmed by those who were supposed to be caring for them, protecting them, within the foster care system. Two child protection inquiries were completed and hundreds of recommendations were to be implemented over a three-year period. What happened? We read headlines like ‘Betrayed kids pay too high a price’, ‘Kids in Care Lotto’, ‘Children in Different Home Different Night’, ‘Silent Victims Must Speak Up’. You really have to wonder about the weight, I suppose you would call it, on our shoulders as elected members as to how much we are prepared to go forward.

When witnesses and submitters to these bills divulged horrific stories of real-life—not virtual, not pretend—atrocities inflicted on them as toddlers and young children on repeated occasions, those memories I had all of those years ago came flooding back. Orphanages and homes for children were prolific in the fifties, sixties and seventies, often bursting with way too many children and very little oversight or care for that matter.

As we have now learned, the degree of pain and suffering inflicted on many of the children in care went unreported. If a child did find the courage—and I say courage—to tell someone in authority, all too often they were not believed and sometimes all too often made to suffer further as a punishment for telling. It was customary in those years for children to be seen and not heard, literally. A common theme of witnesses and submitters was the blatant and deliberate denial that abuse was occurring and even worse were cases where perpetrators were simply moved on to another facility to continue their vile ways.

There was this appalling notion held by society that somehow these children were inferior because their parents could not or would not care for them. Through no fault of their own in the majority of cases, children were placed ‘in care’ for their own safety and welfare, yet in reality many were put into some truly evil situations where they were used as fodder for sick and twisted adults to perform indecent and disgusting acts upon them—sacrificial lambs.

I was a child of the fifties and I recall visiting friends and being told at some stage that the children belonging to the family we were visiting were ‘adopted’. It was not meant to be said in a discriminatory way, but it was how people spoke and thought during those times.

In a case sent to the committee by Justice Ros Atkinson—Carter v Corporation of the Sisters of Mercy of the Diocese of Rockhampton & Ors—the victim was mistreated by nuns who had far too many youngsters in their care. No inspectors visited when they were meant to. An employee bus driver started to abuse her sexually at the orphanage and this escalated to sexual intercourse. The girl was fostered to several families, became aggressive and was thought to have a mental illness, but no-one bothered to ask her what was wrong. Remember what I said—children should be seen and not heard.

Depending upon the degree of abuse and methods used to groom and involve a child, how can a six-year-old without a ‘normal’ family realise that she is being abused? Who can she trust when the adults around her who are supposed to be caring for her are the perpetrators? A lack of trust for authority is a common trait in adults who were abused as children. Witness Dr Swain commented as such when he said—a common outcome of childhood abuse is often a deep mistrust of authority. This becomes even more entrenched if the child has reported the abuse to other adults and has been disbelieved or punished for reporting. It is even further entrenched when, as an adult, the victim approaches the abuser or the institution for justice and is still treated in an adversarial manner, rather than a caring manner.

Dr Swain continued—The first failure of the Government’s approach is that it only applies to victims of child abuse in government institutions. The many victims of child abuse in Queensland’s private institutions (churches, church orphanages, church schools, private schools, cultural and sporting clubs, etc) are abandoned by the Government’s policy.

I note the Attorney has indicated that she will consider the non-government members’ recommendation No. 1. He continued—The second failure of the Government’s approach is that it creates arbitrary discrimination between victims of abuse in the same institution based on whether they have previously pursued a right of action or not.

Any victim who bravely tried to take their abuser and institution to court to hold them to account, had time limits invoked and was subjected to a small inequitable damages settlement that in no way reflected their true health care costs or financial losses arising from the abuse. Under the Government’s bill and policy those people are trapped forever in those settlements—they are trapped forever by the time limits defence.

He goes on to say—Under the Government’s method for removing time limits a victim of the same abuser in the same institution (perhaps a child in the next bed in an orphanage) who has never before attempted to litigate the institution, now finds themselves with a full right of action able to litigate the institution for full health care costs and damages with no time limits defence as a barrier.

During her explanatory speech, the Premier explained the background and rationale of the government issues paper and said—We also recognise that for many survivors this is an important starting point, and other civil litigation issues relating to limitation periods and raised by the commission’s recommendations also need to be worked through.

The Premier continues—My government has also committed to further public consultation on the scope for the removal of the statutory limitation period, including in the context of child abuse that is not of a sexual nature and not in an institutional context, and other civil litigation recommendations of the royal commission relating to the duty of institutions and the proper defendant.

She said—

We are introducing this bill very promptly and, subject to this House, I would hope that the removal of the limitation period for institutional child sexual abuse actions could be in place in the first half of 2017.

We hope that that will be extended past institutional child sexual abuse at the same time. A number of stakeholders and submitters wanted the provisions to extend to children who are seriously, physically or psychologically abused. Questions asked in the issues papers are looking at other reform recommendations. What we have before us is a significant point on a journey that hopefully will allow children who have been abused to have their stories heard with empathy and without retribution. In my mind, no punishment is great enough for people who behave in this manner towards indefensible children and minors. They can never, ever regain what was stolen from them: their youth, their innocence and probably also their trust. However, they can regain some self-esteem. All Queenslanders have a responsibility to protect our children from harm. As politicians and legislators, we shoulder that responsibility even more than others.

I note some recent announcements regarding the national redress scheme for the abused in the Courier-Mail on the weekend. It states—CHILD sex abuse victims will be able to access up to $150,000 in compensation under a multi-million-dollar national redress scheme announced by the Federal Government.

From early 2018, up to 65,000 survivors of institutional child abuse could be eligible for payments and counselling as part of the … scheme which will run for the next 10 years.

The opt-in program will be managed by the Commonwealth but funded by churches, charities and state governments which voluntarily join the scheme.

The Federal Government will not be able to force organisations and states to sign up … but Social Services Minister Christian Porter said initial negotiations had been met with “very favourable responses”.

With those few words on what has been a very emotional time for our committee—and I am sure, Mr Deputy Speaker, you would respect that—and the hours that have been spent by this committee, I commend the government’s bill to the House along with the recommendations from the non-government members.

 

 

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As the State Member for Currumbin since 2004 we have achieved much together to make the place we call home an even better and safer community.

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