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Legislative Council - Fifty-Third Parliament, First Session (53-1)
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Bills

Roman Catholic Archdiocese of Adelaide Charitable Trust (Membership of Trust) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 18 November 2014.)

The Hon. M.C. PARNELL (15:34): I rise to make a contribution on this bill, and I will take some little time today because there is a great deal of information that I think needs to be put on the record; notwithstanding the fact that, at face value, this bill might appear to be fairly straightforward and simple. To cut straight to the chase, I believe that the act that this bill seeks to amend is one of the greatest protection rackets of our time. It is a legal situation that is unique in the common law world, and it is one that is desperately in need of law reform.

What I am referring to, of course, is the fact that the Catholic Church, as a legal entity, does not exist; their assets are tied up in trusts established under the acts of parliaments of various states and territories; and they are, to all intents and purposes, beyond suit even from those who have suffered terribly, as children, at the hands of the clergy, the laity and others associated with the church. So I do need to put some of this material on the record. I do so in the context of amendments that I filed just this week and which I expect we will deal with next week.

The amendments that I have moved seek to open up the assets of the Roman Catholic Archdiocese of Adelaide Charitable Trust to be accessible to those who have succeeded in their claims for compensation in relation to abuse that they suffered as children at the hands of someone connected with the Catholic Church. That is the amendment that I will be speaking to next week but I want to take the opportunity now to put this into context.

The starting point, as I think members would probably know, is that the situation faced by children in institutional orphanages, schools and elsewhere is a very sad tale in many cases of abuse and neglect that has only come to light in recent years. That is not to say that people who suffered abuse as children often as far back as 1940s, 1950s and no doubt earlier—that these stories have taken a long time to come out. They are now coming out in the most public way possible and that is through a royal commission established by the government of the commonwealth.

Members would be aware that the royal commission produced an interim report earlier this year and that interim report makes for absolutely harrowing reading. I am going to put some of that material on the record today as it relates to the Catholic Church in South Australia, and the institutions that are referred to are the institutions that benefit from the trusts, including the trust that is the subject of this bill. The royal commission at the very start of its interim report, Volume 2, has a disclaimer under the heading 'Content Warning'. It states:

This report contains material that is sometimes confronting and disturbing. Sometimes words or images can cause sadness and distress, or bring back memories for people affected by child sexual abuse which are very hard to deal with.

The introduction then goes on much like modern television shows now where a documentary or a current affairs show deals with issues of suicide or depression and they put the Lifeline phone number or beyondblue or one of those services up. The royal commissioner felt the need to put similar material at the front of his report. I want to refer to four South Australian cases. The names, no doubt, are fictitious but the commissioner has seen fit to name institutions and to name time periods. I will start with the case of Albert. In relation to Albert's case the royal commission report states:

Educational opportunities were limited in the isolated place where Albert's parents lived, so at the age of 10, he was sent to a Christian Brothers' boarding school in South Australia.

After an 'uneventful' 12 months, Albert went into Grade 5 in 1967 where he had a new teacher. He told the commissioner that the lay teacher, Mr Black showed an interest in him almost right away.

To quote Albert:

Mr Black was a large, untidy man who could be very pleasant, but at the same time, authoritarian and demanding. I remember he had bad breath. During class he would come up to me and say, 'You have been a good boy, do you want a break?'

Albert said Mr Black would find an excuse to take him into a private garden area to sexually abuse him, at least once a month.

I am not going to read the next bits; it is not necessary and it is too distressing, but I refer members to page 107 of Volume 2 of the Royal Commission's interim report. The report about Albert goes on:

But since his boarding school experience, he told the commissioner, he’s waged a long battle with drug and alcohol addictions. ‘I spent about six months in jail when I was 25 for violence and drug possession. I’ve spent time in various police lockups for being drunk and causing domestic disturbance. I’ve abused substances. I suffer terrible nightmares, sometimes wake up screaming and terrified.’ Albert has been married twice, and said for over 40 years he had ‘wiped off’ memories of the abuse.

The report goes on to describe a bit more about his life, and then continues:

He also told of ‘always having problems’ with people in authority, and struggling to maintain employment despite having secured a number of well-paid jobs. Haunted by nightmares, Albert finally revealed his story for the first time to his lawyer in 2008, and spent three years in counselling before deciding to contact Towards Healing.

He then engaged in that process, and the report concludes:

They offered me a pittance in my financial settlement, which I refused. It went back and forth until I finally accepted $20,000 which I split evenly with my lawyer. I expected a higher settlement considering it sent my life off the rails for 40 years. They promised a formal apology letter which I never got, the whole thing was just so traumatic.’ In return for the settlement, Albert said he signed a deed of release stating he’d take no further action against the Church. He told the Commissioner he’s currently homeless but staying with his father…'I have no friends and still suffer nightmares. I continue to smoke marijuana and drink. It helps to get rid of the bad thoughts.’

A second South Australian case, on page 132 of the report, relates to Joe. Joe was actually a teacher at a Christian Brothers school in South Australia. I will not read that extract but, basically, he was a teacher who was appalled at the cover-ups and the attempt, by the church, to hide what was clearly abuse that was being conducted in that institution. The next case, on page 259 of the report, is that of Rod. It says:

In 1994, Rod was living overseas when he heard that an allegation of sexual abuse had been made against a priest, he recognised as the one who’d been his parish priest in the 1960s in regional South Australia. That priest had sexually abused him over a period of eight years while Rod was serving as an altar boy. Rod told the commissioner that he was eight years old when Monsignor Sheehan began abusing him in 1966. ‘It started out as psychological torture, and then it became sexual.’

I will not go through the details, but they are in the commissioner's report. The final South Australian case study I will refer to is the case of Susan, as follows:

Susan’s mother was grateful for the break Brother John gave her when he took the children on hikes and bike rides. She was busy and exhausted, looking after five children, including Susan’s youngest sister who had a severe disability and confined to a wheelchair. Brother John was a Christian Brother who’d befriended the family through a cub and scout camp. It was on the outings that he sexually abused the children. When Susan disclosed the abuse and said she didn’t want to go with Brother John, her mother said that she didn’t want to know. ‘He’s a lovely man’, her mother said. ‘He’s helping our family, so you go with him and don’t lie.’ Susan tried several times to let her mother know about the abuse, but she was never believed. Susan told the commissioner that Brother John took the children to isolated locations and made them take their clothes off.

I am not going to read the next part of that extract, but I think honourable members can imagine how it goes. The report continued:

The abuse by Brother John went on for five years until the family moved away from South Australia. Susan said her brother committed suicide at the age of 19. 'He just couldn't deal with life after the abuse.' From the age of 16, Susan spent long periods in psychiatric institutions. She attempted suicide several times and severely self-harmed. 'I'd withdrawn so far from my feelings. I did it so the pain was on the outside instead of on the inside.'

So, there are some South Australian cases involving the Catholic Church as reported this year by the Royal Commission into Institutional Responses to Child Sexual Abuse and that is some of the context of the history that I think all of us now know. When we look at the bill that is before us and the act that the bill seeks to amend, it relates to one of these property trusts that are controlled by the Catholic Church.

Many people believe the Catholic Church is an extraordinarily wealthy organisation and that it has one of the largest landholdings in the country, and to a certain extent that is true. However, the property that is owned by the Catholic Church in this state is held by a series of property trusts. These trusts are established under the law of the state and they date back many decades. The bill before us, I think, is amending a 1981 act, but there were predecessor acts as well.

At law, the entity that is known to the general public as the Catholic Church is said to be an unincorporated association with no independent legal identity. Basically, this means that the Catholic Church in South Australia does not exist and cannot be sued. This legal structure has very important and ongoing consequences for the victims of abuse. In 2007, a decision of the New South Wales Court of Appeal affirmed on appeal to the High Court a man called John Ellis, a man who I have met in Sydney. He sought compensation for sexual abuse that he suffered at the hands of an assistant priest at the Bass Hill parish between 1974 and 1979. Mr Ellis's case is important to the story, it is important to South Australia and it is important to this bill.

Mr Ellis could not sue the deceased assistant priest, neither could he sue the church. Mr Ellis therefore sued the current church leadership, which back then was Cardinal Pell, and he also sued the property trust that held the church's assets. In court, the church never disputed the fact that Mr Ellis had been sexually abused. Instead, they managed to persuade the court that the present leaders of the Catholic Church could not be held responsible for breaches of care by former members of the unincorporated association that is the Catholic Church.

The church also argued, and the court agreed, that the property trust could not be sued by victims of abuse as the trust was solely responsible for property matters and therefore not liable for any sexual abuse by members or officials of the church. Mr Ellis's case was dismissed. Not only that, he was ordered to pay the church's legal costs and John Ellis, like countless numbers of victims, was left with no legal remedy. Victims and the church now simply refer to this case as the Ellis defence.

The Ellis defence is what my amendments seek to remove by amending this bill. To put the legal context onto the record, I need to refer to a submission that was made by the Australian Lawyers Alliance. This was a submission about the Catholic Church's Towards Healing process. The submission was made to the Royal Commission into Institutional Responses to Child Sexual Abuse and is dated 3 September 2013. When we look at term of reference No. 6 of the royal commission's terms of reference, it is to inquire into connection between participation in Towards Healing and rights to access justice systems in Australia. I will read a few sentences from the Australian Lawyers Alliance submission:

The church's claim that it is effectively immune from suit in Australia is unique in the common law world.

In the USA, Canada and Ireland, the Church has been treated as a corporation sole or a legal entity capable of being sued in respect of abuse.

In England, the Church accepts that its trustees are its secular arm and liable to meet any verdict against the Church.

The submission then names a large number of court cases and I will not read all of those references into Hansard. The submission goes on:

In each of these English cases the Church was held liable, either directly, or vicariously, or both, for the criminal conduct of its priests.

The English Supreme Court in the last of those cases said that the relationship between bishop and priest was sufficiently close to that of an employer/employee to justify making the Church liable for criminal acts of sexual assault.

The Ellis decision is in stark contrast and leaves Australia isolated in the common law world.

The submission goes on:

The result is that, only in Australia, and only in respect of one Church in Australia, do victims have no entity to sue (since the abuser has usually taken a vow of poverty and may well be dead) and only one Church in Australia is not liable for its clergy. The Australian Lawyers Alliance submits that urgent legislative reform, along the lines of the draft legislation circulated by David Shoebridge MLC in the NSW parliament, the Roman Catholic Church Trust Property Amendment (Justice for Victims) Bill 2012 (NSW), is required.

They then attach that draft bill to their submission. At this point I will acknowledge the work of my colleague David Shoebridge MLC, in the New South Wales parliament, who has done a power of work on behalf of the victims of childhood sexual abuse, not just in relation to this particular church but in relation to other institutional settings as well. The Australian Lawyers Alliance, addressing term of reference number 13, Options for redress, says the following about the common law:

The Ellis case, as described earlier, indicates the gross inadequacy of redress under Towards Healing.

This extends not only to individuals that have suffered abuse directly as a result of misconduct by a local parish priest, but also individuals attending Catholic parochial schools. Those injured in Catholic parochial schools may have no one to sue for abuse or even negligence, unless a Bishop chooses to consent to the Trustees (who hold the school's assets) being sued.

In support of that submission, the Australian Lawyers Alliance reference a number of cases, most recently from 2011 in the New South Wales Supreme Court. They continue:

Legislation reform is the only remedy. The access to compensation via other means, other than under the common law in Australia, is grossly unsatisfactory.

They then go on in their submission to talk about the Towards Healing process, the Catholic Church's own process, and what that is designed to achieve. To paraphrase, the church's process is that people can go through the civil courts, as is their right, but the Australian Lawyers Alliance says:

However, a civil compensation claim cannot proceed successfully due to the precedent created by Ellis, thus leaving such procedures defunct.

As a result of the lack of legal status of the Church as an unincorporated association, and the lack of receiving any compensation from an abuser priest, victims have no choice but to go to Towards Healing 'for the crumbs that the archdiocese was prepared to push off the table'.⁷

It has become clear that the outcome of such mediation will depend on the strength of the legal position of both parties. If the threat of taking the matter to court is no longer there, then claimants just have to accept what is offered.

Lawyers who have worked with victims of abuse report that it is standard practice for the Church's lawyers to reference the Ellis defence, and tell victims to either accept a low settlement offer, or inevitably lose their case in court. As Dr Andrew Morrison SC says: 'If this [Ellis] decision stands, it is not just this litigant that fails, this decision says that the Church, in effect, is not amendable to suit.'

In the Sydney Diocese of the Catholic Church, the maximum payment that is authorised under the Towards Healing process is $50,000, and anecdotal reports suggest that most payments are well below this.

Other dioceses such as Maitland-Newcastle do not limit payments, and explicitly do not rely on the Ellis defence, and therefore have provided more substantial settlement sums to victims.

This figure is grossly inadequate to compensate individuals for the significant losses sustained within their lifetime. In addition, for an individual to be eligible to claim this meagre payment, the abuser must be alive.

Many individuals have committed suicide as a result of the abuse to which they were subjected, such as Damien Jurd and Daniel Powel in the Father F case.⁸

It is clear that Towards Healing is a process designed to minimise payments to victims, done in private, whose outcome protects the accused and the Catholic Church. There is a lack of care towards the victim, with a focus on money. The Australian Lawyers Alliance believes that such callous disregard for the plight of victims amounts to a second round of abuse.

That is the legal situation that we now face in South Australia. We know that there are victims of abuse who are seeking justice. We know that, under the law as it stands, the Catholic Church is not able to be sued in its own right; it relies on the Ellis defence to secure low, secret payments for victims, and this is a situation we have to reform.

The fact is that this bill has been on the Notice Paper of the other place for some considerable period of time. I personally believe that discussions would have been held anticipating that someone might move amendments such as the ones I am now seeking to move because, clearly, when the Catholic Church comes to the government with what is effectively a private act of parliament, an act that is just for the benefit of the church, and they say, 'Well, it's a bit out of date. We need to fix up the membership of the trust. Some of the trustees are no longer appropriate; we want to put some new ones on,' they have opened up this bill. They have asked this parliament to legislate to help them to fix up their antiquated structure.

What I am saying and what the Greens are saying is that this parliament now has an opportunity, and I believe an obligation, to fix up this legislation properly and to fix it up to remove this gross anomaly that protects a massively wealthy institution from having to pay compensation to those who have been adjudged in our courts of law or by settlement to be entitled to compensation. I think that it is absolutely appropriate for us to be dealing with this.

When we get to the amendment next sitting week, members will see that it is a very simple amendment. It seeks to define abuse or neglect. It seeks to set out those persons associated with the Catholic Church who may potentially be those who are the perpetrators of abuse, whether they be the clergy or the laity, and then goes to say, in a very simple clause, that, when it comes to the objects of the trust that:

(2) The property and the income of the trust must be applied as follows:

(a) firstly—if a claim has been made against a representative of the Church that the representative abused or neglected the claimant when the claimant was a child—to satisfy the payment of any damages awarded or compensation agreed as a result of the abuse or neglect; and

(b) secondly—to further the other objects of the Trust.

So, it is very, very simple. It opens up the bucket of money to those who have proved their case in a court of law. There are probably greater injustices, but it is a gross injustice that someone could have their case proven, found to be entitled to compensation but not be able to recover because of a legal nicety which protects billions of dollars of assets. That is just wrong, and that is something that this parliament can and should remedy.

I look forward to further debate on this bill when we get into the committee stage. I have no doubt that the Catholic Church will fight tooth and nail to prevent an amendment such as this going through. That has been its approach in other jurisdictions—I do not expect it to be any different here.

I just make the point that this does not make anyone liable who has not done anything wrong. The precondition for a person to get compensation is that they have to convince a court or the church that compensation is payable, and then this bill simply says, 'Here is the bucket of money that you can be paid from.' Once with we get rid of the Ellis defence, then the church will need to negotiate in good faith with the victims of child sexual abuse.

I read those earlier references to the royal commission. I know I balked at the detail: I cannot say that the detail is not appropriate, because you have to know this stuff, but I was not prepared to read it into Hansard. It is just dreadful; it has resulted in harm, it has resulted in death, and these people are entitled to our compassion. I look forward to all members considering this when we come back next week. I hope the amendments are supported.

I will conclude with the words I started with: if we do not fix this, we are party to one of the greatest protection rackets in this country, and I do not think that is appropriate for the parliament to let go through to the wicket keeper. I know that the church only has a simple request: change the membership of the trust. We need to take this opportunity to fix up this legislation properly.

Debate adjourned on motion of the Hon. T.J. Stephens.

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