19 July 2016

Records and Redress

'New Rules and Record Keeping: Supporting Redress for Victims of Child Abuse' by Moira Paterson and Melissa Castan in (2016) 41(1) Alternative Law Journal examines
new reforms to Victoria's Civil Procedure Act 2010 in relation to its discovery and disclosure requirements. It considers them in the context of laws that regulate documentary evidence and recordkeeping, and the relationship to the claims for redress for victims of institutional child abuse. 
The authors comment
Redress for survivors of harm, including the large number of individuals who were abused as children while in institutional care, invokes complex and contested areas of law, particularly where it involves litigation and disputes over evidence about long past events. This has already been documented in numerous inquiries1 and is currently being further examined in the context of the ongoing Royal Commission into Institutional Responses to Child Sexual Abuse.2 Ensuring appropriate legal redress for survivors of institutional abuse (and other forms of abuse) is an important imperative. However those claimants and their legal advisers currently face major challenges and obstacles in obtaining the documentary evidence necessary for the litigation process, due to shortcomings in recordkeeping laws and the absence of standards in the past:
[O]wing to their evidentiary nature, records have been at the centre of a number of landmark investigations into abuse of children while in state care: records provide evidence of identity, and corroborate testimony of unrecorded events which occurred many years ago. Ironically, it has been the absence of records which has proved most problematic, both for inquirers and the would -be subjects of those records.
In many situations allegations are made regarding events years ago, witnesses are no longer available and care-providers adhered to very poor recordkeeping practices. The ‘normal’ processes of evidence gathering and legal procedures will often be inadequate to deliver redress. There are commonly reports of losses of key evidentiary materials such as case files, medical reports, contemporaneous testimony (through file notes or journal entries) and other supporting materials.
In 2014 the Victorian government made important changes to the Civil Procedure Act 2010 (Vic) in relation to its discovery and disclosure requirements. The Justice Legislation Amendment (Discovery, Disclosure and Other Matters) Act 2014 (Vic) implemented a package of changes designed
to ensure that the courts, parties and legal practitioners [we]re using appropriate tools to reduce the costs and delays associated with the discovery process, for example by more clearly defining the issues in dispute, considering document management issues prior to undertaking discovery, and limiting the scope of discovery requests. 
While the reforms arose in the context of commercial mega-litigation that raised issues of discovery procedures and access to documents under Freedom of Information (‘FOI’) laws, the reforms may also have some beneficial effect for the redress of victims of child abuse. Those people seeking redress for past harms and continuing damage face considerable hurdles in accessing justice, including limitations periods and problems of defendants’ legal capacity. The overall cumulative effect of these factors has profound implications for them. This article looks at the meaning of the new discovery rules and then turns to examine how the multi-layered laws that frame recordkeeping may affect survivors of institutional abuse. It also considers the use of existing discovery and FOI laws and concludes that access to records means very little if there is no enforceable obligation on care-providers (whether government or private) to create meaningful records.