Catholic church concession on Ellis defence is inadequate
11th Mar 2014
A historic concession made yesterday only goes halfway to according justice for thousands of victims of sexual abuse, the Australian Lawyers Alliance said today.
Yesterday, a historic concession was made by the Catholic Church at the Royal Commission into Institutional Responses to Child Sexual Abuse: the Church appeared to be partially abandoning the Ellis defence, which prevented victims from suing on the basis that no legal entity existed that could be sued.
This is a major departure from the Church’s previous position. Unfortunately, this concession does not go far enough to provide justice for thousands of victims.
Firstly, the Church has not clearly stated that it will abandon the defence in current cases. The concession is limited to having a legal entity for the church available in the future.
Cardinal Pell (who is no longer the Sydney Archbishop) conceded it was wrong to take the defence, and stated his own view “that the Church in Australia should be able to be sued in cases of this kind.”
Secondly, the Church is still not accepting legal responsibility for the actions of its clergy.
“This concession only addresses half the problem for abuse victims seeking to sue,” said Dr Andrew Morrison SC, Australian Lawyers Alliance spokesperson, and Senior Counsel in the Ellis case.
“The second element of the Ellis defence was that because the church does not technically ‘employ’ its clergy, it is not responsible for anything that they do. This is the case even where abuse occurs whilst the priest is conducting church services.”
John Ellis, was a 13 year old altar boy when first abused by the priest who was in charge of him in a church presbytery. Yet the church argued and the NSW Court of Appeal held that, even if the church could have been sued, it was not responsible for its priests.
In other countries, this issue has ben determined very differently. In 2012, the Supreme Court of England and Wales, (the highest court in that country) unanimously held that the relationship between bishop and priest was sufficiently close to that of employer/employee to make it just to hold the church liable. The church in that country has never relied on the argument that it did not exist in law.
“It will be of no comfort to victims of abuse to have someone to sue, if that someone has no legal responsibility for the abuse suffered. The Church should make clear whether it is giving up the Ellis defence entirely or merely a part of it,” said Dr Morrison SC.
“Any major institution that has interactions with children should be incorporated and exist as a legal entity that can be sued,” said Dr Morrison SC.
“The former Archbishop of Sydney has personally acknowledged this. All it takes is for the Church to accept that the trustees in each diocese are the proper defendant, as is the case in England. No legislation is required if the church does this.”
“However, for people to be able to receive the compensation they deserve, there also must be a recognition that institutions are liable for the actions of those that represent them.”
“At present, Australia is lagging behind the rest of the common law world in this respect.”
“Not only must there be a legal entity, but it must be liable for the actions of the clergy when they are in the course of their duties.”