Limitation of Actions Amendment (Criminal Child Abuse) Bill 2014 Exposure Draft Submission Contact: Laura Helm, Lawyer, Administrative Law and Human Rights Section T 03 9607 9380 F 03 9602 5270 lhelm@liv.asn.au www.liv.asn.au 1
TABLE OF CONTENTS Introduction... 1 Abolition of limitation periods is an important first step... 1 Scope of the reforms should be broadened... 2 1. Limitation periods should be abolished for physical, sexual, emotional and psychological abuse of children... 2 2. Abolition of limitation periods should not be linked to criminal offences... 3 Recommendations... 6
Introduction The Law Institute of Victoria (LIV) strongly supports removing time limits that stop victims of child abuse from accessing civil justice. We urge the newly elected government to confirm its commitment to implementing the recommendations of the Betrayal of Trust report without delay. The LIV welcomes the opportunity to comment on the Exposure Draft Limitations of Actions Amendment (Criminal Child Abuse) Bill (the Limitations Exposure Draft). The following comments are based on the legal experience of our members acting for victims of child abuse in institutional settings. Abolition of limitation periods is an important first step The Betrayal of Trust report recognised that civil litigation is an important avenue for legal redress, providing not only access to compensation, but acknowledgement and accountability for the harm victims of abuse have suffered. Court judgements also provide a valuable form of public condemnation of child abuse, and create a powerful incentive for organisations to change their practices to prevent child abuse. 1 The Betrayal of Trust report acknowledged that there are many barriers to civil litigation for victims of child abuse in institutional settings, of which limitations periods are one. Limitation periods are inappropriate in the context of child abuse, particularly sexual abuse, because many survivors do not report their experiences to close friends and family members, much less make official statements, for lengthy periods of time after they have taken place. Abolition of limitation periods is therefore an important first step in achieving justice for victims of abuse. Without further amendments addressing other barriers to civil litigation, such as the lack of legal entity to sue (dealt with in recommendations 26.1 and 26.2 of Betrayal of Trust) and establishing a legal duty on the organisation (recommendation 26.3), civil litigation will remain very difficult to pursue as an avenue for justice. We therefore urge the government to implement a comprehensive package of reforms to improve access to civil justice for victims. Reforms must provide avenues for justice for so-called historical abuse and must therefore be retrospective in their application. 1 Family and Community Development Committee, Betrayal of Trust, final report of the Inquiry into the Handling of Child Abuse by Religious and other Non-Government Organisations, 519, (Betrayal of Trust report). 1
Scope of the reforms should be broadened The Limitations Exposure Draft would abolish limitation periods under the Limitations of Actions Act 1958 (Vic) for actions founded on the death or personal injury of a person resulting from criminal child abuse. The Discussion Paper asks whether the Bill s definition of criminal child abuse appropriately covers all cases of child abuse that should be encompassed in the reforms. Clause 3 of the Bill defines criminal child abuse to mean: An act or omission in relation to a person when the person is a minor- (a) that is physical or sexual abuse; and (b) that could, at the time the act or omission was alleged to have occurred, constitute a criminal offence under the law of Victoria or the Commonwealth The LIV considers that clause 3 is problematic because it: 1. is unduly limited to physical and sexual abuse; and 2. requires the plaintiff to prove that a crime was committed. The LIV is concerned that the current drafting of clause 3 is overly narrow and could lead to complexities and uncertainties that will undermine the purpose of the reforms. We elaborate in the following. 1. Limitation periods should be abolished for physical, sexual, emotional and psychological abuse of children The LIV is concerned that victims in institutional settings of non-physical or non-sexual abuse, such as serious bullying, emotional manipulation and other coercive behaviour, ritual humiliation, criminal neglect, and other cruel and unusual punishments, will be excluded from the reforms to limitation periods. In our members experience, the harm caused by emotional and psychological abuse can be equal to the harm caused by physical and sexual abuse. Case law demonstrates that emotional and psychological abuse is prevalent in state ward claims. 2 Victorian law prohibits emotional and psychological abuse in a number of relevant contexts. For example: section 5 of the Family Violence Protection Act 2008 (Vic) (the Family Violence Act) includes emotional or psychological abuse in the definition of family violence; section 161B of the Children, Youth and Families Act 2005 (Vic) (CYF Act) prohibits any form of emotional abuse in out of home care services; section 493 of the CYF Act creates an offence where a person with a duty of care intentionally takes action that results in a child suffering emotional or psychological harm; and section 21A of the Crimes Act 1958 (Vic) defines stalking to include a course of conduct using abusive or offensive words to or in the presence of the victim (Brodie s law). 2 See eg Salvation Army v Rundle [2008] NSWCA 347; S v Attorney-General [2002] NZFLR 295; Williams v The Minister, Aboriginal Land Rights Act 1983 [2000] NSWCA 255; White v Attorney-General NZHC Unreported CIV-1999-485-000085. 2
The suicide of Brodie Panlock, which led to the criminalisation of serious bullying in Brodie s law, highlights the serious harm that can arise from emotional or psychological abuse. Emotional and psychological abuse is also prohibited under international law in the United Nations Convention Against Torture, 3 which defines torture to include any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person (emphasis added) (Art 1). Art 16 prohibits other acts of cruel, inhuman or degrading treatment or punishment. Emotional abuse is also recognised as serious misconduct under various requirements for teachers, such as the Procedures for allegations of misconduct against lay employees in Catholic schools and Catholic Education Offices (revised in 2013), which includes the following examples of serious misconduct : a constant attitude or behaviour by another person towards a student that harms him/her emotionally and may delay or impair his/her physical and intellectual development. It can include terrorising, isolation and continued belittling of the child. 4 The LIV recommends that clause 3 be amended to include physical, sexual, emotional or psychological abuse. Emotional or psychological abuse could be defined according to ss 5 and 7 of the Family Violence Act, under which emotional or psychological abuse means behaviour by a person towards another person that torments, intimidates, harasses or is offensive to the other person. Importantly, under the Family Violence Act family violence also includes behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of, family violence behaviour. 2. Abolition of limitation periods should not be linked to criminal offences (a) The policy rationale for limiting reforms to criminal behaviour has not been demonstrated The LIV believes it is confusing and unnecessary to make access to civil remedies contingent on criminal liability (or potential criminal liability). The Betrayal of Trust report found that there is no public policy justification for applying limitation periods to civil cases relating to criminal child abuse. However neither the Betrayal of Trust report, nor the Discussion Paper, fully explore the policy rationale for limiting the abolition of limitation periods specifically to criminal behaviour. While criminal and civil law are largely about accountability, they serve important but distinct functions in relation to abuse of children. The LIV s submission to the Family and Community Development Committee identified that criminal law has aims including: General and specific deterrence of future commission of crimes; 5 Punishing offenders following a rigorous and impartial trial of the evidence; 6 Rehabilitation for sexual offenders; 7 Protection of the community from such offenders; 8 and 3 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1465 UNTS 85 / [1989] ATS 21. 4 See further Betrayal of Trust report, 339. 5 Sentencing Act 1991 (Vic) s 5(1)(b). 6 Sentencing Act 1991 (Vic) s 5(1)(a). 7 Sentencing Act 1991 (Vic) s 5(1)(c). 8 Sentencing Act 1991 (Vic) s 5(1)(e). 3
Triggering other protective mechanisms such as a criminal record that will prevent the offender from working with children (where a Working with Children Check is required) 9 and monitoring and other conditions under the Sex Offenders Register 10 and possible detention and supervision. 11 Civil law in contrast provides victims of abuse with an avenue to seek compensation for personal injuries (both physical and psychological) suffered, and the losses consequent upon those injuries (for instance, medical expenses, out-of-pocket expenses, and loss of earnings/income). They might seek counselling and pastoral support, and in some cases admissions or apologies. Victims of child abuse face significant legal, evidential and practical hurdles to bring a successful civil law claim. Legal hurdles include proof on the balance of probabilities of the elements of a cause of action; identifying who to sue; whether a duty exists and whether that duty was breached; that the victim has suffered harm; and that the harm was caused by the defendant. These are matters for lawyers to consider on a case by case basis when advising whether a claim has legal merit and protect defendents from unmeritorious or unworthy claims. Further, victims face significant evidential and practical barriers to bringing a claim, including lack of financial means to bring an action, lack of emotional resources, practical limitations associated with the typically lengthy delay in bringing cases to court and family considerations. 12 Removal of limitation periods merely removes one procedural barrier that currently hampers victims ability to achieve justice. We do not believe there is a need for link abolition of limitation periods with criminality. (b) Clause 3(b) creates uncertainty and unnecessary hurdles for victims. By requiring victims to prove that abuse could, at the time the act or omission was alleged to have occurred, constitute a criminal offence under the law of Victoria or the Commonwealth, the LIV believes that clause 3(b) would create uncertainty and unnecessary hurdles for victims. The LIV is concerned that these uncertainties and additional hurdles could lead to further interlocutory hearings and strike out applications, contrary to the intention of the reforms. It could also continue to impact defendant s behaviour during settlement negotiations, where they have a technical defence because conduct was not criminalised at the time it occurred. We elaborate in the following. i) Uncertainty about standard of proof The Explanatory Notes provided with the Exposure Draft states that the test in clause 3(b) is simply a means of further defining the threshold level of conduct that is considered to be abuse. The notes states that it does not require that a person has been convicted; that it does not need to be proven to a criminal standard and it does not require consideration of criminal defences. Contrary to the Explanatory Notes, clause 3(b) is not framed merely as a threshold level for the abuse element in paragraph (a). The use of the word could constitute a criminal offence provides no guidance as to the standard of proof that should apply. Clause 3(b) could be interpreted to put the onus on the plaintiff to prove that the conduct (if proved) would have formed the basis for a criminal offence at the time of the events. This is likely to create a higher threshold than the cause of action and could effectively create an additional limb to the cause of action. At the very it least introduces an additional threshold in relation to the elements of the criminal offence. This could lead to interlocutory or strike out applications by defendants, creating additional hurdles for plaintiffs before they can argue the substantive claim they wish to pursue. 9 See Working with Children Act 2005 (Vic). 10 See Sex Offenders Registration Act 2004 (Vic). 11 See Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic). 12 Betrayal of Trust report,p536. 4
ii) Problematic to refer to criminal law at the time of the conduct The requirement that the conduct be a criminal offence at the time it occurred is likely to create practical problems in cases of historical abuse, because it is not always possible to prove exactly when alleged events occurred. This could make it difficult to identify which legislation applies. Further, the requirement to consider the criminal law at the time the conduct occurred is contrary to the retrospective intent of the reform. It suggests that courts should apply the standards or attitudes that would have applied at the time the conduct occurred, when prevailing attitudes about child abuse have changed significantly leading to significant criminal law reforms. 13 The real question to be decided in a civil claim is whether the defendant is liable according to the relevant cause of action and as such reference to the criminal law is unnecessary. It should not be relevant whether the abusive conduct was criminalised at the time, if it breached a relevant civil standard. iii) Greater clarity needed to ensure that limitation periods are abolished for actions against institutions relating to child abuse, not just perpetrators The LIV is concerned that the requirement that abuse could constitute a criminal offence could limit the application of clause 5 of the Limitations Exposure Draft to civil actions brought against perpetrators. Where a civil action is brought against an institution in tort (such as trespass or negligence) or in contract (such as an express or implied undertaking not to harm a child or exercise reasonable care for a child s safety in providing educational services), the actions of the institution in respect of alleged child abuse will be scrutinised. While proof of the abuse is likely to be central to establishing liability on behalf of the institution, liability might also hinge on other factors such as whether senior members of the institution knew about, failed to respond to or covered up those allegations. Whether a criminal offence might have occurred requires consideration of additional matters relevant solely to the perpetrator, such as whether the perpetrator had the requisite criminal intention. This could be problematic, for example, where abuse is perpetrated by a co-resident in a facility for people with intellectual disabilities and the perpetrator lacked the mental capacity to satisfy the mental element of a crime. In this situation the facility might be liable for the conduct and the abolition of limitation periods should apply. 13 See eg Australian Law Reform Commission Report 114 - Family Violence A National Response, Chapter 24 at http://www.alrc.gov.au/publications/24.%20sexual%20assault%20and%20family%20violence/history-activism-and-legal-change) 5
Recommendations Proposed amendments to clause 3 To ensure that victims of child abuse have access to civil justice and inappropriate time limits are abolished, the LIV recommends that clause 3 be amended to remove reference to criminal offences. We suggest that clause 3 be amended to insert a definition of child abuse (not criminal child abuse) into s27a of the Limitation of Actions Act to mean: An act or omission in relation to a person when the person is a minor that is physical, sexual abuse, emotional or psychological abuse. Alternatively, clause 3 could adopt a prescriptive list of conduct based on ss 5 and 7 of the Family Violence Act. If this recommendation is not adopted, as a minimum we recommend that clause 3 be amended for the avoidance of doubt to clarify that a civil standard of proof applies. 6