Asked 3 August 2023
Victorian Legislative Council, Melbourne

Rachel Payne MLC – South-eastern Metropolitan:

My question is for the Attorney-General Minister Symes. Victoria was the first state to enact reforms that changed the limitation periods for courses of action relating to child abuse. This important work made it easier for survivors of institutional child abuse to seek justice, yet permanent stay applications, once intended to be used in exceptional circumstances, are increasingly being used by institutions as another loophole to deny survivors access to justice and proper compensation. A successful application for a permanent stay can force abuse survivors to drop their case or deal with a daunting appeal process. In some cases they are met with the cost of application. So my question is: what is the Attorney doing to protect the integrity of our justice system so that survivors of institutional child abuse are not denied access to justice due to institutional misuse of permanent stay applications?

Hon. Jaclyn Symes MLC, Attorney-General verbal response

I thank Ms Payne for her question. Look, it is a really important topic, and this government does not shy away from unequivocally condemning acts of violence, particularly sexual abuse against children, and we have a strong record in responding to that, particularly in relation to institutional settings. As you have identified, there have been a range of amendments and a range of provisions designed to tackle the barriers that we know can often stand in the way of a sexual abuse survivor coming forward or indeed accessing the justice system. We have made it easier to undo unfair agreements that have been made. We have made it easier to sue organisations that are no longer financially viable. We have a redress scheme. A redress scheme is a really important thing because it has a much lower threshold of evidence than the courts and is designed also to have not just a monetary recognition of what has happened but also counselling, networking and support services that go to helping deal with the trauma that obviously goes along with that.

Permanent stay is not a callous decision necessarily of a court. A permanent stay involves a consideration of the prospects of a case, and in some instances – and I do not want to reflect on individual cases, because I am just speaking generally – if an individual is going to have so much difficulty, because often due to the duration of time they do not have any proof, it is going to be difficult for a court to see an outcome that is going to be in the favour of an abuse victim.

A permanent stay application is very much a difficult decision for a judge to make but is all about the fact that this is probably not going to end well for that particular applicant. That can deny justice but it can also be actually quite trauma informed in that it stops an unnecessary process for that person to go through. It is incredibly difficult to address that barrier. I am always open to suggestions. It is why we have moved to make it easier for people to make applications. Making it easier for people to succeed in applications involves a lot of complex areas of consideration – of where the burden of proof can lie and where evidence can lie, which is where a redress scheme really picks up a lot of those issues so that it is easier: less paperwork, less proof and really getting to the heart of supporting a victim.

I am always open to further ideas in making sure that the justice system is responsive to victims of sexual abuse. I often have conversations about this, but it is incredibly difficult when you are talking about a permanent stay and the reasons that they are sometimes a useful tool for the justice system to apply for a variety of reasons.

Rachel Payne MLC – supplementary question

I thank the Attorney for her very considered response. I feel as though she probably did touch on this in relation to the judiciary, but by way of supplementary I ask: will the minister consider restrictions on the use of permanent stay applications?

Minister Symes MLC verbal response 

I am happy to have a conversation with the courts in relation to how frequently they are used and whether they see any changes that could be considered there. As I said, I am happy to look at it. It is a hard space, but always, if we can do better, I am happy to have those conversations.

Written response not ordered. 


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