Church’s bid to block child-abuse compensation is a disgrace
18th May 2015
The Catholic Church should be utterly ashamed of revelations that it has not abandoned the controversial Ellis Defence to avoid paying compensation to victims of clerical child abuse, the Australian Lawyers Alliance (ALA) said today.
According to media reports, a number of dioceses and religious orders have refused to confirm that they would no longer employ the Ellis defence in current and future sex abuse lawsuits, despite a commitment by Cardinal George Pell to abandon the practice.
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.
ALA spokesperson Dr Andrew Morrison SC said that the Catholic Church’s refusal to fully compensate institutional child abuse victims was reprehensible and exposed the hypocrisy behind its position.
“The Catholic Church’s continued treatment of the victims of clerical child abuse constitutes an utter disgrace,” Dr Morrison said.
“While the Royal Commission continues to hear evidence of the Church’s appalling treatment of young people, the Church is continuing to fight against liability.”
“This reveals that the Church has not yet recognised responsibility for abuse occurring.”
“In the light of the evidence from Cardinal Pell that the Church’s attitude to its victims was unchristian, it’s refusal to abandon the Ellis Defence brings shame on everyone concerned.”
The Catholic Church is the only major organisation in Australia claiming immunity from suit and no responsibility for its clergy. Dr Morrison said it was time to end the legal abuse of victims who had already been sexually abused by clergy.
“In his evidence to the Royal Commission on the Ellis matter, Cardinal Pell said, in sworn written evidence that ‘…my own view is that the Church in Australia should be able to be sued in cases of this kind’,” Dr Morrison said.
“Cardinal Pell also conceded that Mr Ellis was not treated consistently with the requirements of justice and compassion. Francis Sullivan of the Truth, Healing and Reconciliation Council has made similar comments.
“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?” Dr Morrison said.
“The Roman Catholic Church needs to give an undertaking not to plead the Ellis defence, but to accept, as in England, that its trustees in each diocese are its secular arm and the assets they hold are available to compensate victims,” Dr Morrison said.
“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 churches cannot prevent those they accept were brutally treated, from recovering compensation.”
“Any discussion of adequate redress must first start with a revision of our legal foundations and their repairable flaws,” Dr Morrison said.
“Failure to consider this will mean that any result is only a band-aid solution that could rob victims again of the chance for adequate acknowledgement of their loss, and for justice to be served.”
Dr Morrison said that in addition to rectifying these legal foundations, there was also grounds for all parties concerned to set up a national compensation scheme.
“We will continue to oppose attempts by some offending institutions to incorporate unrealistically low caps on damages and restrict access to legal advice in any compensation scheme,” 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 abuse in their quest to seek common law compensation for institutional abuse.