Legal services direction to affect time-barred child abuse claims until 201913 May 2016
On 4 May 2016, the Attorney-General directed Commonwealth Agencies to refrain from pleading a limitation period defence to claims brought by survivors of child sexual abuse.
The Attorney-General's Direction further extends to prohibiting Commonwealth Agencies from opposing any application for an extension of the limitation period for a time-barred child abuse claim. However, and relevantly for Agencies that are already involved in these types of claims, the Direction does not apply to any proceeding whereby a Court has already determined the limitation issue—both in the context of a successful defence to a claim based on the expiration of the limitation period or a failed application for an extension of a limitation period in a child abuse claim.
The Legal Services Direction will have far-reaching consequences for Agencies responsible for minors in an institutional context, regardless of whether the institution itself no longer operates and whether potentially time-barred claims arising from abuse are presently on foot (but, importantly, not yet determined by the court).
The Royal Commission into Institutional Responses to Child Sexual Abuse is now into its fourth year and its impact on our legal system, and indeed on our community, has been palpable. Following the release of the Royal Commission's final report on redress and civil litigation on 14 September 2015, we have seen NSW (in March of this year) abolish the limitation period for survivors of child abuse (including sexual abuse), bringing the State into line with Victoria, which abolished the limitation period for these claims in July 2015. There is now pressure in Queensland to follow suit. With more than 18 months still remaining for the Commission to complete its task, the pressure on the remaining states and territories will continue to intensify.
The Royal Commission has mooted a figure in excess of 65,000 potentially unreported claims for child sexual abuse across a range of institutions within Australia. With the limitation period in this context often proving the primary obstacle for a claimant to overcome, the Direction of the Attorney-General may see an opening of the flood gates of previously unreported claims against Commonwealth Agencies or claims previously made but not pressed through the legal system.
Corporate Commonwealth entities need to be aware of the Direction and be prepared for a potential influx of claims. The Attorney-General also provided approval in the Direction for non-corporate Commonwealth entities to not plead a defence to a time-barred child abuse claim on the basis of expiry of the relevant limitation period, and similarly to not oppose an application for an extension of a limitation period in these claims.
The Direction will end on 30 April 2019. By that stage, it can reasonably be expected that the states and territories individually will have reached a conclusion on the necessity, or otherwise, of the various statutory time limits for starting proceedings in claims involving allegations of child sexual abuse. Until then, it will be with interest that we watch the Commonwealth space.