This speech was delivered on 14/11/2013 in the NSW Upper House. You can read the original contribution here.
Mr DAVID SHOEBRIDGE [3.49 p.m.]: This week the Victorian parliamentary inquiry into the handling of child abuse by religious and other organisations delivered its final report and recommendations for reform. The report and the recommendations were unanimous. I say at the outset that the members of the committee are to be commended for their integrity and responsible handling of this sensitive and difficult matter. Real and long-lasting reform can result when politicians are able to drag themselves away from partisan attacks and address pressing social issues on their merits. I hope that will be the legacy of this committee’s work not just in Victoria but across Australia. One of the most important issues the committee grappled with was the barriers to fair redress suffered by victims whose abuse occurred while they were in the care of a non-government organisation. As the committee found at page 528 of its report:
- This Inquiry identified five layers of defence that have been relied upon by various non-government organisations in responding to legal claims by victims of criminal child abuse:
- • difficulty finding an entity to sue, because of the legal structures of some non‑government organisations
- • application of the statute of limitations to child abuse cases. This can disadvantage victims, who often delay reporting and acting on abuse for many years
- • inability to establish that organisations have a legal duty to take reasonable care to prevent child abuse by their members
- • difficulty identifying a legal relationship between the perpetrator and the entity
- • the courts’ exclusion of criminal acts from the notion of vicarious liability.
Each of those layers should be addressed by State and Federal parliaments. However, it is the first two that I intend to consider during my speech. Consistent with the evidence of experts in the field, the inquiry found that victims of child sexual abuse overwhelmingly struggled to initiate legal action within the three-year time limit which is generally allowed for them to bring claims. This is three years from the date the victim turns 18. There are many reasons why survivors of child sexual abuse are unable to meet that time limit. Perhaps the most common is that it takes many victims of abuse a very long time to accept what happened to them when they were children, to link their ongoing damage to the abuse they suffered as a child, and even to tell their closest family and friends.
The average time for disclosure has been identified in one reputable study at 23 years but will depend enormously on the personal situation of the victim. In this context, the three-year statute of limitations is clearly grossly inadequate. Even a 20-year statute of limitations would exclude many victims who, through no fault of their own, would not be able to bring their claim in that timeframe. The fact is that it is sometimes the most damaged individuals who are least able to bring a civil claim in a timely fashion against the organisation that failed to protect them. There are organisations that use the fact that a claim is time-barred to drive down the amount paid to victims in settlement negotiations. As the Victorian committee found at page 538 of its report:
- The Committee considers that the application or otherwise of the limitation period in respect of claims arising from criminal child abuse should not be at the discretion of the organisation or the court. Not only does this rely on the goodwill of the organisation in allowing a court claim to proceed, but the very existence of this statutory limitation undoubtedly strengthens the organisation’s bargaining position when settling a claim.
This is a conclusion with which I wholeheartedly agree. As a result, next week my office will be giving notice of a bill that will suspend the operation of the statute of limitations in New South Wales for civil claims founded on criminal child sexual abuse. Put simply, organisations that fail to protect children, and perpetrators of abuse themselves, should not have the comfort to wait it out and hope that the statute of limitations will protect them from having to meet the legal consequences of their actions. One of the ongoing problems faced by victims of abuse who seek redress from non-government organisations is that in many cases there is no legal entity against whom they can viably bring such a claim.
One such organisation is the Catholic Church whose structure works to separate the assets of the church from those who are responsible for the rest of the church. This has been achieved by legislation passed by this Parliament that creates the Catholic Church Property Trust. The so-called Ellis defence—the term derives from the case in which it was first successfully argued—leaves victims in the frustrating position in which the merits of the claim are never tested and instead the church relies on technical defences to avoid liability. Prompted by survivors of abuse, for some time I have been considering options that are available to respond to the clearly unfair situation created by the Ellis defence. The Victorian inquiry’s consideration of similar issues recommends requiring non-government organisations that receive government funding or tax exemptions to be incorporated so that this legal loophole no longer exists. This is clearly the case with the Catholic Church.
While there is real merit in considering this approach, it is not necessary to insist on a whole-scale restructuring of the church’s structure to do justice to victims. The restructuring of such organisations is a complicated matter that would take many years to achieve—years in which many victims of abuse would continue to wait for a remedy. In the interim it should be sufficient simply to deem the property trust to be the Catholic Church for the purpose of recovering any financial reward from a court to a victim of historical child sexual abuse. After all, when the church requires money to fund its expansion or purchases, it is able to access those funds: If the church can do so, then so too should the victims be able to access those funds. Taken together, the removal of the statute of limitations from victims of child sexual abuse and the overturning of the Ellis defence would assist many victims of abuse. I will be seeking to actively progress those matters in this Parliament. As is the case in Victoria, I look forward, with hope, to support from other members of this Chamber, regardless of their political colours.