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Legislative Assembly for the ACT: 2003 Week 8 Hansard (21 August) . . Page.. 3071 ..

MR STANHOPE (continuing):

As I say, the government took this step reluctantly, but there were two compelling reasons for the approach that we adopted ultimately. Disputes are best heard early, and insurance prices require immediate cost feedback. Three years is a relatively long interval of time. It requires us, for instance, to reflect on what we were doing 1,000 days ago. Three years is a long time to hold a recollection of an event in mind. Time dims memory; time erodes the value of evidence. If an action is taken five, 10 or 20 years after the event, serious injustice can occur. Not only does memory start to dim, witnesses move on or disappear, and evidence becomes more difficult to discover or is lost.

In one recent ACT situation, the defendant was unable to locate an insurance policy that would have covered the event from many years earlier. Some argue that justice is only ever rarely served if the legal dispute is heard within the social context in which it arose, with both parties having access to people with fresh recollections of the event. This is not always the case; sometimes, as with children, we need to balance the slow disappearance of the reality of the past with the social need to protect the interests of a child. The argument in relation to an adult does not have to deal with the same social need.

From a social perspective, there is another trade-off forced on us by insurance products. The price of an insurance product must be set on the basis of recent relevant cost information. If cost information is delayed, prices do not properly meet the risk. Insurance policies may be set at too low a level; where insurers make insufficient provision for cost, insurance companies collapse.

It might be asked whether insurance companies are not part of the cure but part of the problem. Perhaps we should be considering alternatives to insurance companies in any event. This is a significant reduction in the statute of limitations that applies here in the ACT. The government took its position. It has adopted essentially those provisions that apply in Victoria.

Indeed, that is consistent with moves that have now been made nationally in relation to times being made within statutes of limitations running. We deliberately took a decision in relation to adults, with the exception of people with a mental disability, that three years did provide sufficient time and did meet the aims that we were seeking to meet in moving the ACT to the existing Victorian circumstance.

MR STEFANIAK (5.49): I take a very similar position to the Attorney, in that I think Mrs Cross's amendment has considerable merit. It was certainly somewhat difficult not to accept it, because I think there are some very good points raised in it. The Attorney has put quite well the reasons the government has gone down this path, why there is a need for consistency with other states, the type of crisis we find ourselves in and the fact that, invariably, it is preferable if you can take an action early.

I would raise one further point on that. I note that, elsewhere in this legislation, liability may be decided early and then those involved may take some time to wait for an injury to calm down and stabilise. That might get around some of the problems that this particular clause causes and make the departure from what has been the law for some time.

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