Recalling boarding school life in England (in his essay Such, Such Were the Joys…), George Orwell was struck by one particular incident of violence. The eight-year-old Eric Blair, after being flogged with a riding crop for wetting his bed, told his friends that it had not hurt. For this stoicism he was beaten with intensified ferocity until the riding crop broke. Orwell saw this as the "great, abiding lesson" of his childhood: it was not possible for him to be good, and the world was hostile. In Orwell’s words, "Life was more terrible, and I was more wicked, than I had imagined."
Orwell’s experience is not unique. History reveals a pattern of physical, sexual and emotional maltreatment of children in Anglo-Saxon societies. Children’s traditional status as units of economic labour and chattels for sale, without legal rights, meant that adults were able to subject children to abuse and neglect with impunity. Most commonly, this abuse has been perpetrated by individuals within families but it has also been perpetrated on children entrusted to the care of government and religious institutions. Only in the last few decades has this incidence of institutional abuse been revealed. In a number of jurisdictions, inquiries have discovered appalling records of institutional abuse and neglect of children.
The Forde Inquiry
In Queensland in 1999, the Forde Commission of Inquiry into Abuse of Children in Queensland Institutions reported a devastating incidence of physical, sexual and emotional abuse, and neglect, of children in State institutions. A key recommendation of the Forde Inquiry was Recommendation 39, which requires the Queensland government and responsible religious authorities to liaise with survivors of institutional abuse to design principles of financial compensation, and to implement a scheme that provides a balance of individual monetary compensation and provision of necessary services.
This recommendation is not unreasonable. A number of jurisdictions in Canada, Ireland and most recently Tasmania have established schemes to offer compensation for victims of abuse in State institutions. These schemes still test claims in an evidentiary sense, but are less formal and less adversarial (and so are quicker and cheaper) than civil proceedings.
One reason justifying these schemes is State responsibility for the damage done to children in its institutions. A second justifying factor is that for many of these individuals, the expiry of limitation periods makes it impossible to seek legal remedies in the courts. Both reasons have been admitted by governments that have accepted their moral obligation to compensate survivors of institutional abuse. Irish Prime Minister Bertie Ahern and Tasmanian Minister Michael Aird have acknowledged these obligations and have admitted the unjustifiable use of statutes of limitation to preclude redress. Additionally, numerous jurisdictions have amended their statutes to enable commencement of civil proceedings by survivors of abuse.
The Queensland government’s failure to respond
No such luck in Queensland. If State deception, hypocrisy and cruelty are the standards, then it is difficult to imagine a more effective response than that made by the Queensland government. In contrast to other jurisdictions, the Queensland government has failed to take any action to implement Recommendation 39. In official responses in 1999 and 2001, the government ignored its obligation to implement a compensation scheme, and instead directed survivors seeking compensation to Queensland’s courts: "to establish a separate arrangement for one group of Queenslanders over another would be iniquitous."
This hypocritical, cruel and deceptive response compounds the abuse suffered by these people. It is hypocritical because the government knows that it is this group of people that is treated differently than other claimants, in adverse ways, by the legal system. It is cruel because it denies redress to those who deserve it, and causes further psychological and financial distress to victims (the government also knows that Legal Aid does not provide assistance in these cases). It is deceptive because it knows that current legal provisions make it almost impossible for survivors of abuse to gain legal redress.
Queensland statutory impediments to survivors’ access to courts
As the Law Commission of Canada has pointed out, from a moral perspective, governments should not rely on limitation provisions such as those in Queensland’s Limitation of Actions Act 1974 to escape civil litigation in these cases. As I and others have shown elsewhere (see, eg, B Mathews, "Limitation periods and child sexual abuse cases: Law, psychology, time and justice" (2003) 11 (3) Torts Law Journal 218-243), in cases involving sexual (and, arguably, physical) abuse of children, the application of limitation provisions to deny adult survivors of abuse access to courts is theoretically, practically and morally unjustifiable. This has not stopped the Queensland government from pleading the expiry of time in civil actions brought by survivors of abuse, and successfully evading civil trials; the very civil actions it urged survivors to take.
New personal injuries legislation makes the situation even worse for plaintiffs in this class. With the enactment of Queensland's Personal Injuries Proceedings Act 2002 (pdf, 608Kb), fresh obligations are imposed on claimants, with strict timeframes that in most if not all of these cases are impossible to meet. Despite the fundamental legislative principle that statutes should not impose retrospective obligations on citizens (required by the Legislative Standards Act 1992 (Qld)), the PIPA imposes retrospective obligations on claimants, which includes survivors covered by the Forde Inquiry. This enables respondents including the State to block access to the courts in another way, and forces further applications for court leave to proceed, all costing further time, money and trauma.
Morality demands two actions. First, the Queensland government should establish a compensation scheme for survivors of institutional abuse. Second, statutes should be amended to allow the institution at any time of proceedings by survivors of child sexual and or physical abuse, when that abuse has been perpetrated by individuals or institutions on whom the survivor was dependent. If these actions are not taken, then in this context Queensland will remain an unevolved throwback, not only doing too little to prevent child abuse, but doing too little to respond to it.