Hansard debates

Mr HERBERT (Minister for Training and Skills) tabled following statement in accordance with Charter of Human Rights and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the 'charter'), I make this statement of compatibility with respect to the Limitation of Actions Amendment (Child Abuse) Bill 2015.

In my opinion, the Limitation of Actions Amendment (Child Abuse) Bill 2015, as introduced to the Legislative Council, is compatible with human rights as set out in the charter. I base my opinion on the reasons outlined in this statement.

Overview

The bill amends the Limitation of Action Act 1958 (Vic.) by removing all limitation periods for actions for damages founded on the death of or personal injury to a person resulting from child abuse, and by removing the 12-year long stop limitation period for actions under part III of the Wrongs Act 1958 (Vic.) in cases where the wrongful death was caused by child abuse.

The amendments extend to instances of child abuse that occurred at any time, regardless of whether or not those claims were previously barred by a limitation period.

The bill expressly provides that the removal of limitation periods will not affect the court's inherent jurisdiction/powers to control or dismiss proceedings that could undermine the administration of justice.

Human rights issues

Human rights protected by the charter that are relevant to the bill

The following charter act rights are relevant to the bill:

the right of children to protection as in his or her best interests — section 17(2);

the right to a fair trial — section 24.

Protection of children (s 17)

Section 17(2) of the charter act provides that every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of the vulnerability of their age.

The bill supports the right of a child to protection under the charter act by removing all limitation periods with respect to actions for child abuse. The reforms remove a significant barrier currently faced by victims in issuing civil proceedings before the expiry of the relevant civil limitation period, and provides victims with an 'as of right' opportunity to seek a remedy for the devastating harms they have suffered.

The bill recognises the deep long-term effects of child abuse, such as the extended amount of time (often several decades) it takes for victims of child abuse to understand the abuse they have suffered and issue proceedings in respect of this abuse.

Furthermore, by extending broadly to both physical and sexual child abuse, regardless of the setting in which the abuse occurred, the reforms acknowledge harmful effects that both forms of abuse, occurring in any context, can have on a child's physical and psychological wellbeing.

Right to a fair trial (s 24)

Section 24 of the charter act provides that a party to a civil proceeding has the right to have the proceeding decided by a competent, independent, impartial court or tribunal after a fair and public hearing. The purpose of the right to a fair hearing is to ensure the proper administration of justice, and applies to all stages in proceedings and in relation to any Victorian court or tribunal.

The removal of limitation periods with respect to child abuse is relevant to the right to a fair hearing that may be called into question due to a lack of evidence arising from the passage of time. The bill supports this right by providing an express evidentiary protection that the removal of limitation periods does not in any way affect the courts' inherent power to control the exercise of their jurisdiction, including by dismissing or ordering a permanent stay to proceedings where the administration of justice may be compromised. This would include where the lapse of time has a burdensome effect on a defendant that is so serious that a fair trial is not possible. In addition, a court will still be bound to provide a fair hearing of the issues by applying the normal rules of evidence.

Are the relevant charter rights actually limited by the bill?

The rights identified above are not limited.

Is any limit on relevant rights by the bill reasonable and justified under section 7(2)?

N/A

Guidance re use of jurisprudence and previous SOC practice

N/A

The Hon. Steve Herbert, MP
Minister for Training and Skills