New VIC Limitation of Actions Amendment (Child Abuse) Bill 2015

Last week (on the 24 February 2015), the Victorian Legislative Assembly introduced the Limitation of Actions Amendment (Child Abuse) Bill 2015, a bill which has been foreshadowed for quite some time and removes the limitation periods that apply to actions in respect of causes of action that relate to death or personal injury resulting from child abuse among other purposes.

Background to the Bill

The Bill originated from an exposure draft released by the Government on 5 December 2014.

This exposure draft was a result of the Betrayal of Trust report, the report of the Family and Community Development Committee’s Inquiry into the Handling of Child Abuse by Religious and other Non-Government Organisations, which was tabled on 13 November 2013. The Government’s response to Betrayal of Trust was tabled on 8 May 2014.1 In its response, the Government provided support or in-principle support for all of the 15 recommendations of Betrayal of Trust.

The Government’s progress to date includes:

• creating three new criminal offences for grooming, failing to disclose child sexual abuse, and failing to protect a child from the risk of sexual abuse, in response to recommendations 22.1, 23.1, and 23.2;
• requiring ministers of religion to obtain working with children checks, in response to recommendation 10.1; and
• addressing recommendations 12.1, 13.1, and 13.2 (as well as sections of recommendation 10.1) by developing Child Safe Standards for organisations working directly with children. A consultation paper on the proposed Child Safe Standards is currently in circulation.

This exposure draft bill relates to recommendation 26.3 of Betrayal of Trust. 

Recommendation 26.3 and the Purpose of the Bill

Betrayal of Trust examined civil limitation periods, and concluded that they were inappropriate for victims of criminal child abuse, who, due to the deep psychological harms inflicted upon them by their abusers, often take decades to fully understand the harm arising from abuse. 

Many victims therefore find themselves faced with an expired limitation period by the time they are ready to commence legal proceedings, and then bear the onus of seeking to persuade a court to even have their claim heard. The Family and Community Development Committee also heard how the prospect of an expired limitation period has been used against victims in settlement negotiations, often to reduce the settlement amount that is offered. Betrayal of Trust therefore recommended (at recommendation 26.3):

In summary, the Bill amends the Limitation of Actions Act 1958 (VIC) to:

• completely remove the limitation periods that apply to civil actions that are causes of action for damages founded on the death of or personal injury to a person resulting from criminal child abuse; and
• remove the 12-year long stop limitation period for actions under Part III of the Wrongs Act 1958 (wrongful death actions brought by dependants of a deceased) in cases where the wrongful death was caused by criminal child abuse.

Furthermore, the bill will apply to past, as well as future claims of abuse, regardless of whether or not past claims were previously subject to a limitation period. While the bill will not reopen cases that have previously settled or been subject to final judgement, it will allow historical victims of abuse the opportunity to have their civil claims heard in court.

As stated by the Attorney General in his Second Reading Speech:

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Limitation of Actions Amendment (Child Abuse) Bill 2015 and explanatory materials including discussion paper and exposure drafts, as reproduced on TimeBase LawOne