A royal commission wants major changes to how the Australian legal system handles child sex abuse cases.
The final recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse on redress and civil litigation went to the federal government at the beginning of last week.
Abuse survivors and institutions await the publication of the commission’s proposals, which are due to be tabled in the federal parliament and made public before the end of this week or early next week.
The commission has already signalled the need for changes to limitation periods in child sex abuse cases.
Most limitation periods for personal injury actions are just three years whereas a victim of sexual abuse on average does not come forward for 22 years.
One survivor said the statute was designed for someone who has tripped over in K-Mart, not for victims of child sexual abuse.
Some states, in anticipation of the commission’s recommendations have suspended the limitation periods and Victoria has done away with them.
What lawyers will be watching is whether the commission has recommended that limitation period for personal injury damages in abuse cases be removed altogether or kept and extended and whether the changes should be retrospective.
The commission has also signalled reform is needed around vicarious liability, which means making institutions liable for abuse committed by employees.
Another recommendation that will be examined carefully is the one relating to the legal status of churches and charities, which are hard to sue because they are unincorporated and plaintiffs find it hard to identify a ‘correct defendant’.
The Victorian inquiry into child sex abuse asked the state government to considering requiring non-government organisations to be incorporated and adequately insured.
The Anglican Church in Victoria has already moved to implement changes to make it easier for people to sue as has the Uniting Church.
The Catholic Church says it is waiting for the commission’s recommendations before implementing across the board changes.
However, it is no longer using what has become known as the Ellis defence to deter people from suing.
The Ellis case in NSW was where plaintiff John Ellis who was abused by a priest, failed to sue the trustees of the Catholic Archdiocese of Sydney and then archbishop, Cardinal George Pell.
The court ruled the archdiocese’s property trustees could not be sued and as Cardinal Pell was not the archbishop at the time Mr Ellis was abused, he could not sue him either.