CATHOLIC CHURCH AND CHILD SEXUAL ABUSE
Mr DAVID SHOEBRIDGE
[6.20 p.m.]: For more than two decades the Catholic Church, both in Australia and overseas, has been the subject of increasing numbers of claims that those in its care were sexually abused. Many of these claims related to abuse alleged to have been perpetrated in the 1950s, 1960s and 1970s. There is no doubt that in many of these cases the abuse occurred and that members of the church hierarchy were aware of the abuse at the time it was occurring. Victims of abuse deserve redress. They deserve justice. This is especially the case when they have been abused while in the care of an organisation or institution that was meant to look after them.
Proper redress can often include punishment of the perpetrators, if they are still alive. It can also involve sincere apologies and evidence that an organisation has taken steps to admit its error and change its behaviour to prevent abuse occurring to others. Justice must also allow for fair compensation for the hurt, distress and humiliation suffered by victims of abuse from those institutions which allowed—and, in some cases, even assisted—the abuse to occur in the first place. In New South Wales there is currently a serious impediment to the recovery of compensation by those whose abusers were clergy of the Catholic Church.
In 2007 the case of John Ellis set a terrible precedent in this area and this Parliament has a pressing obligation to remedy it. John Ellis was an altar boy at the Bass Hill Parish of the Roman Catholic Church. He claimed that in the period from 1974 to 1979 he was sexually abused by the assistant parish priest. In 2004 the assistant priest died and his estate left no assets against which the plaintiff could recover damages. Also in that year Mr Ellis brought a common law claim against the Trustees of the Roman Catholic Church and against His Eminence Cardinal George Pell, Archbishop of Sydney, in relation to the abuse he had suffered. The trustees were appointed under the Roman Catholic Church Trust Property Act 1936, a New South Wales Act that establishes a trust that holds all the property of the Catholic Church in this State—property that has been estimated to be worth billions of dollars.
The trial judge in the Supreme Court initially found that the trust could by sued by Mr Ellis in relation to the abuse and granted him an extension of time to allow him to pursue his claim. The judge also held that as Cardinal Pell had not been appointed to that position at the time of the abuse he was not responsible for the abuse and therefore not able to be sued. The court dismissed Mr Ellis' claim against him. Both the trust and Mr Ellis appealed this decision. In its appeal the trust conceded that an arguable case had been established that the abuse had occurred. However, it alleged that the Catholic Church did not exist in New South Wales as a legal entity. The trust told the court that although it holds all of the Church's property—and had so at the time that Mr Ellis' alleged he was abused—that it was not responsible for the conduct of any member of the clergy. The trust submitted that, in effect, the church could not be sued as, in law, it did not exist.
Cardinal Pell maintained his position on appeal that he was not appointed at the time of the abuse. The cardinal who had been appointed at the time of the alleged abuse had since died, as had the alleged abusive clergy member. Cardinal Pell claimed Mr Ellis could not hold him responsible for the abuse. The Court of Appeal agreed with both the cardinal and the trust, and Mr Ellis' case was dismissed entirely. The court also ordered that he pay the legal costs of the church and the archbishop. The Catholic Church has organised its legal affairs so that, in effect, it is almost entirely insulated from legal claims by victims of abuse.
The law now states that the only entities that exist at law and can be sued by a victim are the individual member of the clergy who is alleged to have been the abuser and the archbishop or head of the relevant religious order at the time of the abuse. As the case of Mr Ellis proves, these defendants are often dead or penniless. Meanwhile, the church and all of its property is comfortably sheltered from compensation claims by a New South Wales law that places its property in its property trust. Mr Ellis took his case to the High Court, which refused him special leave. Mr Andrew Morrison, SC, who acted for Mr Ellis, told the High Court that the Catholic Church:
... has so structured itself as to be immune from suit other than in respect of strictly property matters for all claims of abuse, neglect or negligence, including claims against teachers in parochial schools at least prior to 1986.
The decision continues to have repercussions for survivors of abuse in New South Wales. The outcome is that in respect of child abuse dating back 20 or 30 years the Catholic Church knows when dealing with victims that it has a complete defence. Victims' lawyers are increasingly being driven to check nursing homes for elderly archbishops and bishops who may still be alive and can be sued, often years after they have left their office.
This year the Australian Lawyers Alliance called for urgent legislative changes to the so-called Ellis Defence so as to "hold the Catholic Church accountable for its paedophiles". Some of the responsibility for change can be borne only by the Catholic Church. Hiding behind a technical legal defence in the face of the serious abuse of someone in its care is not consistent with the church's stated commitment to addressing the serious blight of sexual abuse. As a Parliament we have a responsibility to remedy this unconscionable outcome now.