Catholic Church can't backtrack on commitment to child abuse survivors
4th Apr 2016
State and territory governments should urgently introduce legislation that forces institutions such as the Catholic Church to take responsibility for those who were abused as children by the clergy or others associated with the Church, the Australian Lawyers Alliance (ALA) said today.
Church representatives such as Melbourne Archbishop Denis Hart have previously stated publicly that the Church would abandon the Ellis Defence and provide a mechanism for survivors of child abuse to sue the Church and seek justice. However, more recent Church statements have been inconsistent, indicating that the Catholic Church may continue to use the Ellis defence.
ALA spokesperson Dr Andrew Morrison SC said that, given the Church’s inconsistency on the issue, the only reliable path to justice was through legislative reform.
“Australia appears to be the only significant common law country in the world where a Church can evade its responsibilities for its clergy’s misconduct,” Dr Morrison said.
“Despite earlier undertakings to provide indemnity and insurance and accept responsibility, the Catholic Church clearly appears to have reneged on those undertakings.”
“It cannot be acceptable that the right of nearly 20% of Australian school children attending Catholic parochial schools to sue for injury in negligence or for abuse is wholly dependent on the whim of the local bishop. It is not acceptable that they have no rights in law,” Dr Morrison said.
Dr Morrison said that courts in the United States, Canada and Ireland have treated the Catholic Church as a ‘Corporation Sole’, making it liable to suit in abuse or negligence cases. That argument was rejected in Australia. Liability for abuse has also been found by the courts in the United Kingdom.
“The Royal Commission into Institutional Responses to Child Sexual Abuse recommended that state and territory governments introduce legislation to provide that any property trust associated with an institution against which a claim of institutional child sexual abuse has been made should be made the proper defendant to litigation,” Dr Morrison said.
“Any liability of the institution arising from the proceedings should be met from the assets of the trust. It is that recommendation which urgently needs to be implemented in all states and territories.”
“Given that other churches employ their staff and that the problem lies in the legislative structure of the Catholic Church, the only remedy for the Church’s intransigence is legislative reform,” Dr Morrison said.
Dr Morrison said that senior clergy and Catholic bodies such as the Truth, Justice and Healing Council have previously recommended that the Church undertake to provide an entity for victims to sue.
“The Archbishop of Melbourne, Denis Hart, has been quoted in a speech by the Honourable Justice Peter McClellan as saying that ‘the Melbourne Archdiocese has recommended that the Church, throughout Australia, provide an entity for survivors to sue’,” Dr Morrison said.
“In the same speech, Sydney Archbishop Anthony Fisher was quoted as saying that it is the ‘agreed position of every bishop and every leader of a religious congregation in Australia that we will not be seeking to protect our assets by avoiding responsibility in these matters’.”
“Archbishop Fisher was also quoted as saying that ‘anyone suing should be told who is the appropriate person to sue and ensure that they are indemnified or insured so that people will get their damages and get their settlements’,” Dr Morrison said.
“A press release issued by the Truth, Justice and Healing Council dated 22 May 2015 also quoted Archbishop Fisher as saying, ‘... the Ellis defence is no longer a legal tactic used within his archdiocese’.”
“Cardinal Pell accepted in evidence to the Royal Commission that the Sydney Archdiocese had ample funds to meet any potential claims,” Dr Morrison said.
More recently, however, Church officials have said that there was no such thing as the Ellis Defence. In Ellis, the trust holding Church assets could not be sued for the abuse perpetrated by a priest, which left the survivor with no avenue to seek justice. These recent statements suggest that those officials may be intending to continue to employ this defence to deny survivors of child abuse justice yet again.
“The Archdiocese of Sydney issued in late 2015 a document entitled The Ellis Decision – a Restatement of the Law, and said “There is no such thing as the ‘Ellis defence’. The Ellis decision did not create new law,” Dr Morrison said.
“This document is currently on the website of the Archdiocese of Sydney. It goes on to assert: ‘While the court found that the body corporate was not responsible for the assistant priest, it did not set up a so-called "Ellis defence" or any new law. This decision is consistent with the longstanding rule of law that you cannot be liable for the criminal actions of others unless you are directly or indirectly responsible for supervising their conduct, and there has been negligence or other actionable conduct.’”
Just last week in Ballarat the Christian Brothers order declined to indemnify Brother Robert Best, former Principal of St Alipius school in Ballarat, after he was jailed for abusing former students. Instead, the religious order nominated Brother Best as the defendant to be sued for negligence on its behalf.
Dr Morrison said Brother Best’s victims are unlikely to receive any compensation due to the brother’s limited capacity as an individual to pay compensation to his many victims.
“Denying the existence of the Ellis defence ultimately indicates that the Church is not willing to use its assets to compensate survivors of childhood sexual abuse,” Dr Morrison said.