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Limitations Amendment (Child Abuse Civil Actions) Bill 2015

On 15 October 2015, the introduction of proposed legislation by the NSW shadow Attorney General for the amendment of Limitation Act 1969 (NSW) to remove the limitations period for matters related to historical child sexual abuse was defeated.

Similar legislation was enacted in Victoria (which abolished limitation periods in civil child abuse matters) as of 1 July this year.  The Royal Commission into Institutional Responses to Child Sexual abuse has been recommending this action.

  1. What were the proposed changes?

The proposed changes would have removed limitations period specifically for child sexual abuse. At present, the limitation period for ‘personal injury’ in NSW is 3 years from discovery [1].

The operative provision, section 6A (‘Exclusion of actions for recovery of damages of child abuse’) proposed to exclude the application of the Limitations Act to causes of action relating to “the death of or personal injury to a person, regardless of whether the claim for damage [was] brought in tort, in contract, under statute or otherwise”[2] resulting from “an act or omission in relation to the person when the person is a minor that is a physical or sexual abuse”[3].

The proposal would have operated retrospectively. It would have applied whether or not action had been commenced previously on the same cause action, and whether or not judgment on the cause of action had been previously given [4].

There was a safety measure in section 6A (3) reserving a right for the Supreme Court not to apply the provision where it would prejudice a defendant and interfere with the provision of a fair trial for a defendant [5].

  1. Scope for re-introduction in the future?

The NSW government is insisting that the proposal be linked to a national redress scheme (presumably with Federal government as a funder of last resort). This suggests it is concerned with an amplification in child abuse litigation, and consequent spike in compensation payouts if limitation periods were relaxed. Doubts have been raised about that assumption, citing the reluctance of many sexual abuse victims wishing to litigate [6].

On 19 March 2015 the former Abbott government made clear that it opposed the implementation of a national redress scheme with the Commonwealth as a funder of last resort [7]. The Turnbull government has not given any indication as to whether that policy will change.

Martin Slattery, Partner

[1] Limitation Amendment (Child Abuse Civil Actions) Bill 2015, section 6A (1)(a).
[2] Limitation Amendment (Child Abuse Civil Actions) Bill 2015, section 6A (1)(a).
[3] Limitation Amendment (Child Abuse Civil Actions) Bill 2015, section 6A (1)(b)(i).
[4] Limitation Amendment (Child Abuse Civil Actions) Bill 2015, section 9.
[5] See note under s 6(3)(c).
[6] See reply of Paul Lynch before the NSW Legislative Assembly. NSW, Second Reading, Legislative Assembly, 15 October 2015 (Paul Lynch)
[7] Consultation Paper – redress and civil litigation Commonwealth, submission to Royal Commission into Institutional Responses to Historical Child Sexual Abuse, 19 March 2015  

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