The Queensland Government has introduced proposed legislation to remove the limitation periods on the bringing of actions by victims of child sexual abuse in institutions. The Limitation of Actions and Other Legislation (Child Abuse Civil Proceedings) Amendment Bill 2016 and the Limitation of Actions (Institutional Child Sexual Abuse) and Other Legislation Amendment Bill 2016, were introduced in the lower house on the 18th and 16th of August respectively.

In an earlier media statement, Queensland Premier Annastacia Palaszczuk stated that “My Government will ensure there is no time limit on justice."  Queensland's move reflects similar proposals by other States and Territories such as NSW (see our earlier article) and is a direct response to recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission).

This proposed legislative reform in Queensland continues the progress made by the State to introduce legislative and regulatory reform to reduce the risk of child abuse occurring in institutions such as schools. In January 2016 The Cyclical Review Program Guidelines (Guidelines) governing the accreditation process for non-government schools in Queensland were also updated to include increased child protection compliance requirements.

Removal of Limitation Periods

Under the Australian legal system, people who have suffered harm due to the negligence of others can seek compensation for their injuries through court proceedings. If a child suffered abuse while at an institution such as a school, they must establish that the institution breached the duty of care owed to them, being the duty to provide education in a safe environment.

However, current legislation limits the right to bring such claims if they are brought outside of a limitation period. Statutes exist in all States and Territories and set the maximum time periods that restrict the ability of abuse victims to claim in court proceedings.  Under the Limitation of Actions Act 1974 (Qld), a child victim has three years from the time they turn 18 to bring a civil action before the court. This three year limit has often been used by insurers of institutions, such as schools and churches, to facilitate the negotiation of out-of-court settlements.

Premier Palaszczuk says she has met victims, been moved by their accounts, and believes there is no time limit on the victim’s anguish or damage to their lives and their loved ones. Queensland Attorney-General and Minister for Justice and Minister for Training and Skills, Yvonne D’Ath acknowledges that child sex abuse victims may take decades to have the courage to report the abuse, with the studies conducted by the Royal Commission showing that child sex abuse victims are often well into their adult years before they become aware of the sexual abuse they have suffered.

Reaction to the Royal Commission's Recommendations

In addition to these proposed legislative changes, the Queensland Government has released an issues paper to seek community interest in wider civil litigation reform based on the Recommendations 85 to 95 in the Royal Commission Redress and Civil Litigation Report. It outlines the Royal Commission's recommendations. The paper also states that there may be potential for broadening reforms, saying: 'the Queensland Government is seeking to determine whether the scope of these reforms should be broadened in the future. Issues to consider include the type of abuse covered (i.e. non-sexual), and whether it should be broadened to include abuse that occurred outside an institutional setting.'

Further, it details:

• the extension to other forms of abuse, such as physical abuse or psychological abuse, as part of the claim that victims may bring in relation to their child sexual abuse claim;
• the inclusion of a legislative test for reasonable care to prevent child sexual abuse in schools;
• the reversal of the onus of proof to extend to all institutions. Recommendation 91 presumes an institution is liable for child sexual abuse, unless the institution can prove it took reasonable steps to prevent the abuse; and
• the relationships that should be captured by a proposed reverse onus of proof.

Once the proposed amending legislation comes into effect, Queensland victims of child sexual abuse will be able to bring civil action regardless of the time accrued, or whether they have already been paid compensation from an earlier redress scheme.  The Explanatory Memorandum for the Limitation of Actions (Institutional Child Sexual Abuse) and Other Legislation Amendment Bill 2016 states that these changes will"create a more accessible civil litigation system for survivors of child sexual abuse where that abuse has occurred in an institutional context."

Updated school accreditation guidelines reflect increased focus on child protection 

The amended Guidelines introduce more extensive child protection requirements, a reflection of the focus of Queensland authorities on ensuring schools provide child safe environments. The insertion of new section:Section 4.1 - Processes for reporting sexual abuse, suspected sexual abuse, likely sexual abuse, and reportable suspicion states:

"each school's governing body must ensure that staff, students, and parents are made aware of the written reporting processes, staff are trained in implementing the processes, the school is implementing the processes and the processes are readily accessible by staff, students, and parents. Schools must also have a written complaints procedure to address allegations of non-compliance with the written reporting processes.'' 

Further, a school's review report must address whether the school's student protection policies and procedures are compliant with obligations for reporting 'a reportable suspicion', as required under the Child Protection Act 1999.There is also a requirement for a written complaints procedure to address non-compliance with the reporting framework.

Governing bodies must submit a copy of the school's child protection policy as part of their review process.

While the 2015 Guidelines outlined the role of reporting of sexual abuse, they did not go as far as to denote a specific section for that purpose. New section 4.1 emphasises that it is not enough for schools to just have policies and procedures in place, they must be communicated to the school community and be subject to training. The wording from the 2015 Guidelines is also extended to add that 'regular' review 'when necessary' is needed in relation to child protection policies.

What does this mean for your school?

Schools should update their child protection policies to be compliant with the Guidelines in advance of registration. In relation to the proposed changes to statutory limitation periods, schools should review their record keeping policies and procedures. Many schools currently have policies and procedures that require the maintenance of records such as reports of child sexual abuse or suspicious behaviours for a minimum of seven years. In light of the removal of limitation period, it will be prudent for schools to reconsider the length of time they hold onto their records. Regular updates to policies and procedures to reflect legislative amendments, and regular staff training on new child protection requirements would be advantageous for the school’s compliance in an increasingly strict child protection climate  Overall, these changes reflect Queensland's commitment to child safe practices in all government and non-government schools.