A WA parliamentary inquiry into justice for survivors of institutional child sexual abuse has recommended major changes to speed up and widen the scope for compensation claims and avoid unnecessary trauma to survivors.
The Community Development and Justice Standing Committee has handed down its first report, titled ‘Seeking justice: Improving options for survivors of institutional child abuse’, and has made 12 recommendations.
Many abuse survivors are elderly, and many have significant health issues that resulted from their abuse, committee chair David Honey told state parliament.
Any unnecessary delay in implementing further changes could deny survivors and their families the justice they deserve.
The recommendations center on removing obstacles and burdens on survivors as they engage with institutions, such as churches, in sometimes lengthy and re-traumatizing legal proceedings.
To bring WA in line with every other state in Australia, the committee has recommended legislation be amended to remove time limitations on civil claims relating to physical abuse, as well as sexual abuse.
All jurisdictions have removed civil statutes of limitation for child sexual abuse claims, but WA remains the only one to continue restricting claims on physical or serious physical abuse and associated psychological or emotional abuse against minors.
The committee recognized that limiting the scope for historic redress to sexual abuse did not take cognizance of the complexity of many abuse cases, Dr. Honey said.
In many cases, sexual abuse is often inextricably intertwined with psychological and physical abuse.
The inquiry found WA had not followed the recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse to reverse the onus of proof for institutions in child sexual abuse claims.
It has recommended Attorney-General John Quigley change the law so an organization is presumed to have breached its duty of care for children who are victims of abuse by anyone employed or associated with the organization, unless it can show it took reasonable precautions to prevent the abuse.
This recommendation recognizes that there is often a significant asymmetry of power in civil cases between an abuse survivor and a respondent organization, Dr. Honey said.
The inquiry also examined what happened when the victim died before their claim was settled, and has recommended the person’s estate or family be allowed to continue the claim on their behalf.
Survivors have described the legal tactics of some institutions as a war of attrition and an attempt to break you down, faced with what they say are unnecessarily long delays in legal proceedings and unreasonable demands for information.
The inquiry looked at the contentious issue of permanent stays — where a court halts proceedings when it considers there is no possibility of a fair trial, due to the passage of time, deterioration of evidence, or death of the accused.
The committee has recommended the attorney-general introduce legislation so that applications for permanent stays in child abuse cases can only be made after the end of the trial on the matter, and that when a permanent stay is granted the survivor should not be liable for the costs.
Committee member and Labor MP Dave Kelly said permanent stays had become a key feature of defenses put forward by institutions.
At present when people are trying to negotiate a settlement, the threat of a permanent stay hangs over the survivor like a sword, Mr. Kelly told parliament.
And so they live with this fear that they could go through all this work, and then have an application for permanent stay granted, before they get a chance to go to court.
In light of a recent High Court majority judgment on permanent stays in a New South Wales case, it also recommends new legislation to allow any permanent stays granted in child sexual abuse claims before that judgment be reconsidered by the courts.
To prevent lengthy delays in claims getting to court, the inquiry also recommended a dedicated court list in the District Court and ensure trial dates are set as quickly as possible.
Victims who get the courage to come forward with a claim are often presented with a delay of coming through for four and five years before the case gets to trial, Mr. Kelly said.
That is simply too long.
To further shorten legal proceedings, the committee has also recommended legislation be introduced around applications to set aside previous deeds of settlement between survivors and institutions.
It wants these applications to be allowed to run at the same time as fresh civil claims they may have, that had previously not been allowed because of earlier legal time limitations.
An abuse victim may have settled for less compensation than they could obtain now, because the statute of limitations that existed at the time of the agreement, Mr. Honey said.
The report looks at the process of setting deeds aside and recommends that this should happen concurrently with any new civil claim.
The committee received 50 submissions from abuse survivors, advocacy groups, state departments including the State Solicitor’s Office, lawyers, and other responding organizations.
