17 Jan 2009

Australia's church leaders secretly lobby to lift sex abuse claim time limit

The Australian - January 17, 2009

AUSTRALIA'S church leaders are secretly lobbying for the removal of a time limit that blocks child sex victims from suing for compensation over institutional abuse.

by Michael McKenna | The Australian

A multi-denominational push, led by Australia's Anglican leader, Brisbane Archbishop Phillip Aspinall, is pressuring Queensland's Bligh Government to set a nationwide precedent and exempt child victims from the laws, which normally require that they launch legal action by the time they turn 21.
Hundreds of victims - including those openly acknowledged as being abused for years by some of the country's most notorious pedophiles - have been blocked by state and church lawyers from having their claims tested and compensated by the court by the "time-limit defence".
The Bligh Government has so far rejected the proposal to change the personal injuries laws amid fears it may pave the way for a flood of compensation claims from victims.
Dr Aspinall, the primate of Australia's Anglican church, began the push in 2005 in Queensland after being pressured by victims and clergy within his diocese of Brisbane.
But Dr Aspinall has been privately criticised by some of his own clergy because the church has adopted the stance while fighting ongoing compensation claims, by acknowledged victims, using the same statute of limitations provisions it wants dropped.
In one case, Anglican lawyers last year moved to block a compensation action with the time-limit defence just two months after the church wrote to the victim acknowledging years of abuse at a Brisbane school and vowing not to use the provisions.
Dr Aspinall and the Bligh Government confirmed the stand-off over the proposed legal changes after The Weekend Australian obtained correspondence and documents relating to the push and legal fights.
In a statement, Dr Aspinall said he believed "these limitation periods harsh and inequitable".
"The rights of child sexual abuse victims should not be undermined because they have not brought their case forward in a given time," Dr Aspinall said.
"It can take victims many years before they confront the abuse that has happened to them and seek healing and justice.
"I have spoken about this issue to my colleagues from the heads of churches and I believe I have their support in seeking changes to the act.
"To date the (Queensland) state Government has not agreed to any changes in the law."
Queensland law academic Ben Mathews, whose academic papers on the issue were used by Dr Aspinall in his submission to government, said the proposal would set a nationwide precedent and fix a legal system that was failing child-abuse victims.
"This proposal would set a nationwide precedent in guaranteeing victims access to the justice system that these people deserve," he said.
The provisions are similar across Australia and are only voluntarily invoked by defendants such as the church or states to attempt to block or delay the claims from going to court.
But Dr Aspinall said insurance companies forced churches to use the time-limit defence.
He said the proposed changes would guarantee a victim's right to go to court and allow the church to comply with insurance policies under law.
"Insurers usually instruct their lawyers to use the statute of limitations in defence," he said.
"At times, this is directly contrary to the expressed wishes of the church. However, in order for our insurance policies to apply, and for abuse victims to be compensated through them, we need to comply with the legal provisions of insurance contracts.
"Achieving a change in the law would address this issue and provide better opportunity for victims to secure redress."
A victim does have the right to seek an extension of the time limit. But there have been very few cases in recent years where a victim has, after a costly legal battle, been able to win a court-ordered extension of the time limit to go to trial with their compensation claim.
A spokesman for Queensland Attorney-General Kerry Shine yesterday confirmed the Government had rejected the proposal and that the Queensland Law Reform Commission had reviewed the matter.
"The commission determined that the judicial discretion to allow an extension of time provided protection to victims of childhood sexual abuse to allow them to commence proceedings in appropriate cases," the statement said.
It is believed there has only been a handful of cases in Queensland, where the victim beat the provisions.
In September, a general practitioner overcame the provisions to win the right to sue the Anglican Church and South Australian Government over his sexual abuse at a Brisbane private school.
The Queensland Supreme Court yesterday paved the way for the $3.7 million compensation claim, only after new evidence showed the headmaster was warned that the now-convicted pedophile teacher had been sacked from another school for improper behaviour.
The Anglican Church is now appealing the decision.
Senior lecturer in the School of Law at the Queensland University of Technology, Ben Mathews, said similar exemptions to those being proposed have been adopted in some jurisdictions in America and Canada. "This has not produced an intolerable flood of claims."
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