Catholic Church’s position on Ellis contradicts earlier promises
24th Nov 2015
The refusal of a Catholic bishop to rule out using the Ellis Defence as a legal tactic against victims of child abuse directly contradicts earlier Catholic Church pronouncements that it would take responsibility for the conduct of its clergy, the Australian Lawyers Alliance (ALA) said today.
The comments were made after lawyers for victims of child sexual abuse were forced to sue former bishop of Ballarat Ronald Mulkearns personally, after the current Bishop of Ballarat, Paul Bird, refused to rule out using the so-called “Ellis defence” in claims against the Church.
The Ellis defence is based on a 2007 NSW Court of Appeal decision that found the Church cannot be sued for compensation because it does not technically exist as a legal entity.
Pleading the defence means that survivors of abuse often have limited (or even no) ability to seek appropriate compensation. At present, the decision whether to use the defence is made by each individual diocese.
Australian Lawyers Alliance spokesperson and barrister Dr Andrew Morrison SC said it was time to end the legal abuse of victims who had already suffered sexual abuse by clergy.
“The Catholic Church’s continued treatment of the victims of clerical child sexual abuse constitutes an utter disgrace,” Dr Morrison said.
“If the reports are correct, the refusal by the present Bishop of Ballarat to rule out the Ellis Defence is a clear breach of the announcement by Archbishop Antony Fisher that all bishops in Australia agree not to use Ellis.”
“What is the Church going to do about the present Bishop of Ballarat forcing individuals to sue a former bishop because the Church will not accept responsibility for the actions of its clergy?,” Dr Morrison said.
“While the Royal Commission continues to hear evidence of the Church’s appalling treatment of young people, parts of the Church are continuing to deny liability.” “This reveals that the Church has not yet recognised responsibility for abuse occurring,” Dr Morrison said.
Dr Morrison said the Church’s official position on the Ellis Defence had been clearly laid out by the Catholic Archbishop of Sydney, Antony Fisher.
“Archbishop Fisher has stated publicly 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’ and 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.
“Why then is it so hard for the rest of the Church to accept that it has a responsibility to those victims it has so grievously wronged?”
“A real solution to the issue means the Church must also accept that it is responsible for the criminal actions of its priests when those actions are connected with the Church. It means that the limitations barrier in all jurisdictions needs to be lifted for victims so that the Church cannot prevent those they accept were brutally treated from recovering compensation,” Dr Morrison said.
Dr Morrison said the Australian Lawyers Alliance would continue to strongly support the work of the Royal Commission and the efforts of victims of institutional child sexual abuse in their quest to seek common law compensation for institutional abuse.
Note: Dr Morrison acted as senior counsel in the Ellis case.