As written by the founder and principal of Kelso Lawyers, Peter Kelso
As a former State Ward and long-term advocate for victims of child abuse, I congratulate the High Court on its landmark decision to reject controversial tactics used by the Catholic Church and other institutions to deny justice to survivors of child abuse.
Throughout 2022 and 2023, institutions have increasingly relied on the death of the perpetrator in historical cases to argue that they cannot receive a fair trial, asking courts to ‘permanently stay’ the survivor’s case, meaning that they are denied the opportunity to have their day in court.
This is despite State and Territory Governments around the country enacting laws which specifically set out that there is no time limit for bringing child abuse claims, which may be brought at ‘any time’.
To the anger of many in the community, State courts around the country have increasingly accepted these arguments, even in cases where there was a provable history of abuse by that perpetrator and/or in that institution.
If you are a survivor of child abuse, click here to share your story with us. You may be eligible for compensation.
With the decision of the High Court in GLJ, the highest court in Australia has now firmly rejected this controversial tactic, ruling that refusing to hear cases in these circumstances would ‘undermine public confidence in the administration of justice’.
They found that the death of the perpetrator was an ‘expected effect of the passing of time’ and Governments could not possibly have intended to both:
(a) Remove the limitation period so victims of child abuse could sue at ‘any time’;
(b) On the other hand, for expected effects of the passing of time to be grounds for a court to refuse to hear the survivor’s case.
What does this mean?
Over the past two years, it has been increasingly difficult for child abuse survivors to seek justice in circumstances where their abuser has died. This is no longer the case.
With the High Court’s decision, the death of a perpetrator will no longer be an insurmountable barrier to seeking justice and victims of child abuse will once again be able to hold institutions accountable, no matter how long ago the abuse occurred.
There has never been a better time to come forward. Institutions like the Catholic Church will once again be forced to face up to their failings and be held accountable for child abuse that occurred on their watch.
Kelso Lawyers stands proudly alongside victims in this fight.
While the decision is a landmark victory, there is still more work to be done.
We at Kelso Lawyers call on State and Territory Governments around Australia to close the permanent stay loophole once and for all to ensure institutions can no longer undermine confidence in the law by mounting technical defences to deny justice to child abuse survivors.
Laws should also be enacted to allow victims whose cases were permanently stayed or who accepted low-ball settlement offers under threat of a permanent stay to relitigate their cases. They should not be denied justice simply because they came forward at the ‘wrong time’.
Kelso Lawyers will be writing to lawmakers around Australia, pushing for these changes to occur.
