We are calling on the Government and the Opposition to grant their members a conscience vote on this important issue.
By lobbying your local member, you can show them that the community expects them to stand up for victims of abuse where unfair legal obstacles are placed in the way of justice.
You can find contact details for lower house MPs here.
You should also directly contact the Premier and Leader of the Opposition as they will be the ones finally making the decision regarding a conscience vote. Their contact details are as follows:
The Hon Barry O’Farrell, Premier of NSW
Phone 9228 5239
Fax 9228 3935
Send email: office@premier.nsw.gov.au
The Hon John Robertson, Leader of the Opposition
Phone (02) 9671 5222
Fax (02) 9671 5266
Send email: blacktown@parliament.nsw.gov.au
The shield that protects the Catholic Church and denies justice to victims of abuse must be demolished, writes David Shoebridge.
ANY organisation, publicly owned, corporate or religious, that is not held to account for the damage it causes, has little incentive to improve its behaviour. In relation to the scourge of sexual abuse, this is most certainly true of the Catholic Church.
For decades the Catholic Church, in Australia and overseas, has been the subject of increasing numbers of claims of sexual abuse of those in its care. Many of these claims relate to child sexual abuse alleged to have been perpetrated in the 1950s, 1960s and 1970s.
There is little doubt that in many of these cases the abuse not only occurred, but members of the church hierarchy were also aware of it.
Victims of abuse deserve justice. This is especially true when they have been abused by an organisation that was meant to look after them. Proper redress can often include punishment of the offenders, 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, loss and humiliation suffered by victims of abuse from those institutions which allowed the abuse to occur in the first place.
In NSW, there is 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 the 1970s John Ellis was an altar boy at the Bass Hill Parish in the Sydney diocese of the Catholic Church. He claimed that in the period from 1974 to 1979 he was sexually abused by the assistant parish priest.
The priest was appointed by then Sydney Archbishop James Freeman.
In 2004 the assistant priest died and, consistent with his vow of poverty, his estate left no assets against which the plaintiff could recover damages.
Also in 2004, Mr Ellis commenced a Supreme Court case seeking compensation for the damage that he had suffered as a result of the abuse.
Remarkably, Mr Ellis could not sue the Catholic Church itself because the church does not exist in the eyes of the law. As an ‘‘unincorporated association’’, the church is in essentially the same legal position as a regular parents’ group meeting on a Monday afternoon.
With the priest deceased and the church not existing (at least so far as the law is concerned), Mr Ellis looked for other defendants who could stand in the place of the church. This led him to commence proceedings against the trustees of the Sydney diocese of the Roman Catholic Church and Cardinal Pell, archbishop of the Sydney diocese.
The trustees do exist in the eyes of the law. They are appointed under a 1936 Act of the NSW Parliament called the Roman Catholic Church Trust Property Act, which established a series of trusts, one for each diocese of the church in NSW, that hold all of the church’s property. This property has been estimated to be worth billions of dollars and includes the property in which Mr Ellis was abused by the priest.
The Supreme Court initially found that the trustees could be sued by Mr Ellis in relation to the abuse and granted him an extension of time to allow him to pursue his claim. The trial judge also held that, as Cardinal Pell was not the archbishop at the time of the abuse, he was not responsible and therefore not able to be sued.
The court dismissed Mr Ellis’ claim against him.
Both the trustees and Mr Ellis appealed. In the appeal, the trustees did not contest the fact that the abuse happened.
They told the court that, although they owned and were responsible for the church’s property in which the abuse occurred, they were not responsible for the conduct of any member of the clergy.
Cardinal Pell maintained that he was not appointed at the time of the abuse and therefore could not be held responsible for the abuse occurring. If anyone was responsible, it was said, that would be James Freeman, the cardinal who had appointed the paedophile priest.
James Freeman died in 1991.
The Court of Appeal agreed with both Cardinal Pell and the trustees, and Mr Ellis’ case was dismissed. The court also ordered he pay the legal costs of the trustees and the cardinal.
Basically, the Catholic Church has arranged its legal affairs so that it is in effect almost entirely insulated from legal claims by victims of historical sexual abuse. The church does not exist. The offending priests and appointing bishops are all either dead or penniless. The present bishops and trustees of the church are not responsible.
The Ellis decision continues to have repercussions for survivors of abuse in NSW. Thankfully not all dioceses take advantage of the ‘‘Ellis Defence’’.
The Maitland-Newcastle diocese stands out, not only as having an extraordinary number of abuse claims, but also for not using the Ellis defence to defeat claims.
The Sydney diocese, by contrast, takes the point every time.
In 2011 I started a consultation process on a private member’s bill to remedy the Ellis defence. I received submissions from advocacy and support groups, lawyers groups and individual victims and survivors of abuse. All supported the Bill.
The response from the government and the church was silence.
The Bill will allow victims of abuse to sue the trusts as though they were the church and will come to a vote in 2013. The Greens are asking all parties to offer their members a conscience vote on the issue.
The law as it stands is clearly unjust with some of the most vulnerable and damaged people in our society being denied fair compensation.