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Limitation of Actions Amendment
(Child Abuse) Bill 2015
Introduction Print
EXPLANATORY MEMORANDUM
General
The Limitation of Actions Amendment (Child Abuse) Bill 2015 amends the
Limitation of Actions Act 1958. The aim of the Bill is to implement
recommendation 26.3 of the Family and Community Development
Committee's November 2013 Betrayal of Trust report.
Background
Betrayal of Trust, the final report of the Family and Community
Development Committee's Inquiry into the Handling of Child Abuse by
Religious and other Non-Government Organisations, was tabled on
13 November 2013. Recommendation 26.3 of that report suggested that the
Victorian Government consider amending the Limitation of Actions Act
1958 to exclude child abuse from the operation of the limitation period under
that Act. The Bill implements that recommendation.
Clause Notes
Clause 1 provides that the purpose of the Bill is to amend the Limitation
of Actions Act 1958 to remove limitation periods that apply to
actions in respect of causes of action that relate to death or
personal injury resulting from child abuse.
Clause 2 provides that the Limitation of Actions Amendment
(Child Abuse) Bill 2015 will come into operation on a day or
days to be proclaimed, or on 1 September 2015 if not proclaimed
before that date.
581023 1 BILL LA INTRODUCTION 23/2/2015
Clause 3 inserts a new section 27N(6) into the Limitation of Actions Act
1958 to provide that the existing transitional provisions in
section 27N of the Limitation of Actions Act 1958 do not apply
to a cause of action for which an action to which Division 5
applies may be brought. This means that the provisions inserted
into the Limitation of Actions Act 1958 by clause 4 of the Bill
apply equally across all actions to which Division 5 applies,
regardless of what point in time the relevant act or omission
alleged to have resulted in the death or personal injury occurred.
Clause 4 inserts a new Division 5 into Part IIA of the Limitation of
Actions Act 1958 which applies to actions resulting from child
abuse. The Division consists of new sections 27O to 27R.
New section 27O provides that Division 5 applies to an action if
the action is an action to which Part IIA of the Limitation of
Actions Act 1958 applies and if the action is founded on the
death or personal injury of a person resulting from--
· an act or omission in relation to a person when the
person is a minor that is physical abuse or sexual abuse;
and
· psychological abuse (if any) that arises out of that act or
omission.
This section allows a court to determine what is "physical abuse"
or "sexual abuse" by reference to the ordinary meaning of those
words. This may be informed by, for example, the work of the
Family and Community Development Committee's Inquiry into
the Handling of Child Abuse by Religious and other
Non-Government Organisations, and the work of the Royal
Commission into Institutional Responses to Child Sexual Abuse.
The meaning of "psychological abuse" is also to be determined
by a court in the same manner. "Psychological abuse" is
included in the section to avoid doubt. It allows Division 5 to
apply to psychological elements of physical or sexual abuse--
for example, where a child is erroneously made to feel complicit
in physical or sexual abuse that has occurred.
Division 5 does not apply to "psychological abuse" that does not
arise from an act or omission that is physical abuse or sexual
abuse that the action is founded on.
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New section 27O also provides that Divisions 2 and 3 of Part IIA
of the Limitation of Actions Act 1958 do not apply to an action
of a kind referred to in new section 27P. Further, that Division 2
of that Part (other than section 27F) does not apply to an action of
a kind referred to in new section 27Q and that Division 3 of that
Part does apply to those actions.
New section 27P provides that there is no limitation period for
actions to which Division 5 applies (except for actions that arise
under Part III of the Wrongs Act 1958 and to which Division 5
applies). The new section 27P applies to actions irrespective of
the date of the relevant act or omission and irrespective of
whether or not the action was subject to a limitation period at any
time in the past.
New section 27Q removes the long-stop limitation period
applying to actions to which Division 5 applies that arise under
Part III of the Wrongs Act 1958. The new section 27Q provides
that actions to which Division 5 applies that arise under Part III
of the Wrongs Act 1958 shall not be brought after the expiration
of the period of 3 years from the date on which the cause of
action is discoverable by the plaintiff. The new section 27Q
applies to actions irrespective of the date of death of the deceased
and irrespective of whether or not the action was subject to a
long-stop limitation period at any time in the past.
New section 27R provides that nothing in Division 5 limits the
inherent, implied, or statutory jurisdiction of the Supreme Court,
or the implied or statutory jurisdiction of a court other than the
Supreme Court, or any other powers of a court arising or derived
from the common law or under any other Act (including any
Commonwealth Act), rule of court, practice note or practice
direction. The new section 27R safeguards the fundamental
rights of parties before a court, including the right to a fair and
balanced trial, by expressly stating that it does not limit any
existing powers or jurisdiction of the courts. This includes the
power or jurisdiction to control or dismiss proceedings where a
court determines that the lapse of time has had a burdensome
effect on the defendant that is so serious that a fair trial is not
possible (for example, where crucial evidence has deteriorated or
been lost over time).
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Clause 5 provides for the automatic repeal of the Limitation of Actions
Amendment (Child Abuse) Act 2015 on 1 September 2016.
The repeal of this Act does not affect the continuing operation of
amendments made by it (see section 15(1) of the Interpretation
of Legislation Act 1984).
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