Two recent High Court decisions have empowered survivors of historical child abuse to pursue justice, overcoming attempts to block their claims due to the age of the allegations. In both cases, the organisations involved argued that they couldn’t receive a fair trial because key witnesses had died and evidence was lacking due to the passage of time.

Case Against The Salvation Army

In one landmark case, a man known as RC brought a claim against The Salvation Army (Western Australia) Property Trust. RC alleged that between 1959 and 1960, when he was 12 to 13 years old and residing at the Nedlands Boys’ Home, he was sexually abused by a Lieutenant of The Salvation Army who worked at the home.

The Salvation Army admitted that the alleged perpetrator had been stationed at the home during that period but denied the abuse occurred. They argued that a fair trial was impossible because the accused officer and other potential witnesses had passed away, and relevant documents were no longer available. They sought a permanent stay of proceedings on the grounds that the lapse of time made it unjust to proceed.

However, the High Court allowed RC’s appeal, determining that despite the challenges posed by the passage of time, a fair trial was still possible. The Court found that The Salvation Army had sufficient information and had previously acknowledged instances of abuse by the same officer. Therefore, the case was allowed to proceed to trial.

Case Against the State of Queensland

In the second case, a woman identified as a survivor of abuse sued the State of Queensland. She claimed that as a child under state care in the 1950s and 1960s, she suffered sexual and serious physical abuse while placed with foster carers and at a state-run girls’ dormitory.

The State of Queensland acknowledged its duty of care but sought a permanent stay of proceedings, asserting that the extensive time lapse—over 60 years—meant they could not adequately investigate the claims. They argued that key individuals who might have provided evidence had died, and records had been lost, rendering a fair trial impossible.

The High Court disagreed, allowing the appeal in part. It ruled that while some claims, particularly those where it was impossible for the state to respond due to lack of evidence and deceased witnesses, should be stayed, the majority of the survivor’s claims could proceed. The Court emphasised that the state’s inability to obtain all evidence did not automatically preclude the possibility of a fair trial.

Organisations Argue Unfair Trials Due to Passage of Time

In both cases, the organisations contended that the substantial delay between the alleged abuse and the claims being brought forward compromised their ability to receive a fair trial. They highlighted the death of alleged perpetrators and witnesses, the fading of memories, and the absence of documentary evidence as significant hurdles in mounting a defence.

The High Court acknowledged these challenges but reinforced the principle that the right to a fair trial must be balanced against the rights of survivors to seek justice. The Court noted that changes to legislation have recognised the difficulties survivors face in coming forward and that delays in reporting should not unduly penalise them. It was held that courts have mechanisms to address evidentiary issues arising from historical claims, and each case should be assessed on its own merits.

How Long Does a Survivor Have to Make an Abuse Claim?

Survivors of child abuse in Australia can now bring forward claims regardless of how much time has passed since the abuse occurred. Legislative reforms in recent years have removed the limitation periods that previously applied to such claims.

In the cases discussed, both Western Australia and Queensland had enacted laws abolishing limitation periods for child sexual abuse claims. In Western Australia, section 6A of the Limitation Act 2005 removes time limits for child sexual abuse actions. Similarly, Queensland’s section 11A of the Limitation of Actions Act 1974 allows survivors to bring actions for damages relating to child abuse at any time.

These reforms acknowledge that many survivors may take years, even decades, to process their abuse and come forward. The laws ensure that the passage of time does not bar survivors from seeking justice.

In South Australia, the Limitation of Actions (Child Sexual Abuse) Amendment Act 2018 amended the Limitation of Actions Act 1936 to abolish limitation periods for child sexual abuse claims. This means that survivors in South Australia, like those in Western Australia and Queensland, can bring claims irrespective of when the abuse occurred.

Conclusion

The High Court’s decisions affirm that survivors of historical child abuse have the right to pursue justice, even many decades after the events in question. These rulings highlight the judiciary’s recognition of the long-lasting impact of abuse and the importance of allowing cases to be heard, ensuring that organisations cannot avoid scrutiny solely due to the passage of time.

Websters Lawyers have solicitors who specialise in pursuing claims on behalf of survivors of history abuse all around Australia.  Anyone who has suffered such abuse can arrange a confidential, no obligation free consultation by calling 8231 1363 to find out where they stand.  For more information you can also visit: Abuse Survivors and the Redress Scheme – is it a Last Resort and Super for Survivors.

Willmot v Queensland [2024] HCA 42

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2024/42.html

RC v The Salvation Army (Western Australia) Property Trust [2024] HCA 43

https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2024/43.html