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Legislative Council - Fifty-Third Parliament, First Session (53-1)
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Roman Catholic Archdiocese of Adelaide Charitable Trust (Membership of Trust) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 20 November 2014.)

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (12:25): I thank honourable members for their indication of support for this bill, and I look forward to the speedy passage of the bill through the committee stage.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. I.K. HUNTER: I need to put on the record some information in regard to the contribution of the Hon. Mr Parnell and in relation to some amendments which he has filed to this bill which would remove the requirement that the property and income of the trust corporation be used only to further existing charitable undertaking purposes of the trust. Mr Parnell's amendments would provide instead that the assets held by the trust corporation must be used, firstly, to satisfy any damages award or agreed compensation in relation to past sexual abuse by a member of the church. The government acknowledges the noble views of Mr Parnell and his attempt to put that into effect through his amendments.

The ongoing national Royal Commission into Institutional Responses to Child Sexual Abuse is considering the issue of the difficulty that claimants have experienced in the past in taking legal action against the Catholic Church and recovering damages for past sexual abuse. The Attorney-General has sent a copy of Mr Parnell's amendments, I am advised, to the church's legal adviser, who has taken instruction from the Archdiocese and representatives of the other trustee entities. The church's interim response to the amendments sent to the Attorney-General in a letter dated 20 November 2014 is, I am advised, as follows:

1. The proposed amendments are inconsistent with the purpose of the act and the objects of the trust.

2. The amendments are not required because, unlike the situation with the church in some other states, both the Archdiocese of Adelaide and the Diocese of Port Pirie do have incorporated bodies which can already be sued and which are insured to meet compensation and damages claims.

I will read quotes from the letter, dated 20 November 2014, from the church's solicitor to the Attorney-General. It states:

With the utmost respect to [the Hon.] Mr Parnell, the clearly articulated purpose of the amendments proposed by him (i.e. to divert assets of the Trust to victims of child sex abuse) is not in any material way consistent with Objects of the Trust as established under the Roman Catholic Archdiocese of Adelaide Charitable Trust Act 1980. Those objects are, generally, to conduct charitable undertakings for the benefit of children who are deprived of a parent or parents, who need counselling, accommodation, sustenance, care and control and to provide assistance to those who care for children in those circumstances and for families in need of Christian charity.

Further on, it states:

In any event, and again with the utmost respect to Mr Parnell, his amendments are entirely superfluous to the extent that they are aimed at providing a resource capable of being attached by successful litigants to settle their claims which may not otherwise be settled. In that respect, the Archdiocese of Adelaide is simply the name by which the legal corporate entity Catholic Church Endowment Society Inc. (CCES) conducts its ministry and administrative affairs. The Diocese of Port Pirie is simply the name by which the legal corporate entity The Catholic Diocese of Port Pirie Inc. (CDP) conducts its ministry and administrative affairs. The CCES and CDP are entities capable of being sued (and have been sued) by numerous litigants claiming to be victims of sexual abuse at the hands of church personnel.

In addition, CCES and CDP are indemnified in respect of claims for sexual abuse under their policies of insurance with Catholic Church Insurances Ltd. Successful claims (i.e. those which have been the subject of judgments or negotiated settlements) have been paid out by the insurer. No claims for sexual abuse against the Archdiocese of Adelaide or against the Diocese of Port Pirie have been frustrated because of any lack of a legal entity to sue or because of any inability to meet the compensation in respect of those claims.

In summary, the Archdiocese and the other Trustees of the Trust submit that the amendments proposed by Mr Parnell:

1. Are inconsistent with the Objects of the Trust;

2. Would create an unfair discrimination to the detriment of the intended needy beneficiaries under the Trust; and

3. Are entirely superfluous in that they purport to provide a resource for recovery of compensation which will never be required.

On behalf of the Archdiocese and the other Trustees we urge you to oppose the amendments proposed by Mr Parnell.

That ends the quote. In summary, this bill is not an appropriate vehicle to address issues under consideration by the royal commission. The Roman Catholic Archdiocese of Adelaide Charitable Trust is a longstanding corporation formed to hold assets used to further the many charitable undertakings of the church. The purposes of these trusts should not be overturned by this bill. In view of the select committee process in the other place, I look forward to members dealing with this bill through the committee stages, and we will not be supporting the amendments filed by the Hon. Mr Parnell.

The Hon. M.C. PARNELL: On clause 1, the minister has read extracts from a letter from lawyers on behalf of the Catholic Church. Did the minister read the entire letter and, if not, could he make that letter available by tabling it and by providing me with a copy?

The Hon. I.K. HUNTER: In response to the Hon. Mr Parnell's question, no, I did not quote from the entire letter but, yes, I am advised that I can, and I table that correspondence.

The Hon. M.C. PARNELL: I thank the minister for his response and for tabling that correspondence. Can I also get the minister's clarification that the position of the government is that it fully accepts the legal position as stated by the Catholic Church's lawyers?

The Hon. I.K. HUNTER: My advice is that we accept, on the face of it, the church's claims and I can advise that we have had no counter position put to the government to challenge those claims.

The Hon. M.C. PARNELL: I thank the minister for his response. There are a number of reasons why the government would have had no counter position put, the first of which is that no-one knew about the advice so no-one else had the chance to second-guess it. My question to the minister is: has the minister obtained independent legal advice that either corroborates or disagrees with any part of the Catholic Church's legal advice?

The Hon. I.K. HUNTER: No, my advice is that we have not and, as I said, we accept the advice of the church on its face.

The Hon. M.C. PARNELL: I thank the minister. There was one sentence in the extract that the minister read which I found quite remarkable. I wrote it down, and we will check with Hansard as to whether I got the words right. The words I wrote down were that it would be unfair and discriminatory against the beneficiaries of the trust if trust funds were to be applied to the satisfaction of successful claims of child sexual abuse.

The reason I find that to be a remarkable statement is that if having to pay the victims of child sexual abuse compensation somehow means that the beneficiaries of the trust cannot be paid, then that tells me that there is a serious problem with the church's assets and their ability to be applied to compensation for victims.

If the church is saying, 'Well, we've got plenty of insurance, we've got plenty of vehicles that be sued,' how can it possibly be the case that the money is coming out of the pockets out of charitable recipients if it goes into the pockets of the victims of child sexual abuse? For that statement to be correct, it means that what the church, as I understand it, has said in this letter is that the amendments that I have filed would somehow create additional liability, which they do not do.

No-one under the regime I have been suggesting is entitled to compensation who would otherwise not be entitled. They have to get an order, or they have to reach a settlement. So my question of the minister is: how can it be that trustee beneficiaries miss out if victims of child sexual abuse get compensation from this fund? I add to it, if that was the case at some technical level, surely the church would prop up the funds from some other source.

The Hon. I.K. HUNTER: I am in no position whatsoever (the honourable member knows this) to articulate or argue the views that have been put to the government in this letter.

The Hon. M.C. PARNELL: I certainly understand the minister's position on that. I will move on to a slightly different topic on clause 1. As members would know, this is a hybrid bill. It is a bill for the exclusive benefit of the Catholic Church and the charitable trust that it controls. I have received a report of the select committee on the bill tabled in the House of Assembly on Remembrance Day, 11 November 2014. I understand that an advertisement was placed in The Advertiser calling for people to make submissions to that inquiry.

I understand that, apart from the church, on whose behalf the bill was introduced, no-one else made a submission. My question of the minister: what steps were taken, other than the insertion of a newspaper ad (and I cannot recall the page number—page 19 sticks in my head, but it might have been later)? Was any step taken other than putting a formal advertisement in a newspaper to alert the South Australian community that this bill was the subject of a parliamentary select committee?

The Hon. I.K. HUNTER: My advice is this no other steps were taken.

The Hon. M.C. PARNELL: My question of the minister, therefore, is: in the 21st century, does the minister accept that it is a sufficient and appropriate practice for important parliamentary business, including a call for submissions to select committees of this place, to be so narrowly confined to a medium that is of small and declining significance in the community? Why did not the government or the parliament, the House of Assembly in particular, cast their net wider? Why did they not publish this on a website, for example? Why did not they circulate the call for submissions amongst groups in society known to have an interest in matters such as this?

The Hon. I.K. HUNTER: I remind the honourable member (he knows this too) that the processes of a select committee are run by the parliament, not by a minister and not by the government but by the parliament. We have had hybrid bills before this place; it is a procedure of this place that deals with them and a similar situation applies in the other place. If the honourable member wants to change standing practices, then he is quite at liberty to raise them through the normal processes of this chamber.

The Hon. M.C. PARNELL: I thank the minister and I accept his challenge or his dare, as it were. I am just putting on the record now that this is a very poor way for the parliament—and I am not blaming anyone in this chamber, or certainly not the staff of the Legislative Council; this is a matter that was handled by the Assembly. And I have to say that this is so 19th century, that the way that the parliament chooses to communicate with the people of this state is via formal advertisements in a newspaper, of limited distribution and declining significance in this state. I do make the point that parliament is slowly entering the 20th century; the 21st century might be around the corner.

The Hon. K.L. Vincent: We have wi-fi. What else do you want?

The Hon. M.C. PARNELL: What have we got?

The Hon. S.G. Wade: Wi-fi.

The Hon. M.C. PARNELL: I am reminded that the building now has wi-fi, which I think is some technical device that enables us to communicate with the rest of the world. I know I am challenging the minister's technological grasp here, but I make the point that the parliamentary standing committees, as I understand it—either all or most of them—now have Twitter accounts where they can advertise to the—

The Hon. K.L. Vincent interjecting:

The Hon. M.C. PARNELL: The Hon. Kelly Vincent might not be familiar with Twitter—it is a technique for communicating with large numbers of people!

The Hon. S.G. Wade: She's a Facebook girl.

The Hon. M.C. PARNELL: The parliamentary standing committees are advertising the fact that they have inquiries, they are advertising upcoming meetings, the fact that those meetings are public, and they are providing lists of witnesses who are attending those meetings. I think that really what this bill is showing us—it is a bit of a wake-up call to both houses of parliament—is that we can no longer hide behind very limited forms of communication if we are serious about making our work relevant to the people of South Australia. I will leave that point there.

If the minister is itching to technologically respond to the practice of the parliament he can, but I do accept his invitation. I do not think that it is necessarily in the standing orders. I will double-check that. I do not think the form of communication is limited by standing orders. I think the parliament can communicate with the world as it sees fit, and I am urging the parliament to see fit to advertise in more inclusive ways in the future. I have no more contribution on clause 1, but I do have a contribution on clause 3.

The Hon. S.G. WADE: I do not disagree with the minister's point that in this case the House of Assembly did the select committee on the hybrid bill and it is the practice of this house to accept it, but I think the Hon. Mark Parnell's points are well made. I certainly know that in some committees, under the presiding member Gerry Kandelaars, we have certainly been exploring new ways to communicate, and I think Mr Parnell is right that across all of our committees the parliament should be looking to refresh our communications.

For the record I would also like to make the point that I think committees should be thinking not just of, shall we say, broadcast modes, but also proactively trying to identify stakeholders who might have an interest. Certainly in this context I would have thought that the Commissioner for Victims' Rights, the Victim Support Service and, I am presuming, post care services in the Department for Communities and Social Inclusion, might also have contact with people who might be relevant.

I think it is our responsibility not just to broadcast, shall we say, in a scattering the seeds sort of way, about inquiries that we have carriage of, but also to seek to identify stakeholders who might have a legitimate interest. Having said that, I think the minister is right that we are duty bound to accept the report of the House of Assembly, even if we believe the Legislative Council might have done a better job, but I just make the point it is not just broadcasting, it is also direct approaches.

Clause passed.

Clause 2 passed.

Clause 3.

The Hon. M.C. PARNELL: It is my understanding that when I move amendments to clause 3 I may well be ruled out of order, so I will not yet move those amendments, but I do want to talk to clause 3 before I do so. I want to make sure that the Hansard record shows what I believe are deficiencies in the current clause 3 of the bill, so that my intent is made very clear on the public record.

Clause 3 of the bill amends section 4 of the act, and that is the interpretation section. What I believe clause 3 ought to do is to include a number of different definitions that actually go to the intent of a further amendment that I have tabled in relation to clause 5. Basically, I think the clause should include a reference to abuse or neglect in relation to a child. I think that definition should mean the sexual abuse of the child, or physical or emotional abuse of the child, or neglect of the child, reasonably likely to either cause the child to suffer physical or psychological injury detrimental to the child's wellbeing, or place the child's physical or psychological development in jeopardy.

I think the clause would also be improved by an additional definition that relates to who representatives of the church are. I go back to the minister's comments in relation to my questioning under clause 1, where he says that the church has avenues where people can sue the church; they have insurance policies. Again, paraphrasing what the minister said, no-one has missed out for want of a bucket of money and someone to pay the compensation. That is something that we will, I think, explore.

Whilst I can only accept at face value what the minister has said, in my second reading contribution I referred to the fact that around Australia, and I have no doubt in South Australia as well, when people have attended the Catholic Church looking for compensation (they have participated in the Towards Healing process) they have been told by the church's representatives that if they push too hard they will miss out because there is not the ability legally to sue the church.

The types of people who may or may not be covered by any insurance policy that the church has is unknown to us. The minister will not have seen that policy. I have not seen that policy. What I think is clearly required in this legislation is a reference to the range of people who are put in charge of children through the auspices of the Catholic Church. I think that is a definition that would be worth adding.

I would be adding a definition of the representative of the church and it would include: a member of the clergy, including the archbishop, a bishop, vicar, priest, deacon, sister, nun, brother, monk and any other member of a Roman Catholic religious order in the archdiocese or the diocese; an official or officer of, or a member of staff of or a volunteer at, the archdiocese or a parish in the archdiocese; or an official or officer of, or a member of staff of or a volunteer at, the diocese or a parish in the diocese; or a teacher, member of staff or volunteer at a Roman Catholic school in the archdiocese or the diocese.

We would also need to make sure that we were clear that the diocese and archdiocese refer both to the Roman Catholic Archdiocese of Adelaide and also the Roman Catholic Diocese of Port Pirie. Those are amendments that I think would be beneficial to the bill and I wanted to put them on the record, because I would now propose to move the amendments that I have filed and, if they are ruled out of order, so be it.

However, before we get to that point I will make the comment that anyone who has been paying attention to the Senate in recent days would have seen that the practice of that place is to be very liberal with how it allows amendments to be made that go beyond the actual title of legislation that is before the parliament. The classic example—and members would have heard this on the news the other day—is a bill that was being debated about, I think, the abolition of outdated regulations, but the Senate added to it a motion about submarines being built in South Australia.

I do not think, on any analysis, it bore a great deal of resemblance to the subject matter of the legislation that was before the Senate; in fact, it was a matter of some controversy. Nevertheless, the attitude there was that I guess they had the numbers and they got away with it, and they had a debate on submarines in time that had been allocated for a different purpose. So whilst I am disappointed that we will not be having a clause by clause debate in relation to these amendments I do move the amendments, and will accept whatever ruling the Chairperson might offer. I move:

Amendment No 1 [Parnell–1]—

Page 2, after line 10—Insert:

(a1) Section 4—before the definition of appointed day insert:

abuse or neglect, in relation to a child, means—

(a) sexual abuse of the child; or

(b) physical or emotional abuse of the child, or neglect of the child, reasonably likely to—

(i) cause the child to suffer physical or psychological injury detrimental to the child's wellbeing; or

(ii) place the child's physical or psychological development in jeopardy;

Amendment No 2 [Parnell–1]—

Page 2, after line 15 [clause 3(2)]—After the definition of designated ministry insert:

Diocese means the Roman Catholic Diocese of Port Pirie;

Amendment No 3 [Parnell–1]—

Page 2, after line 18—After subclause (3) insert:

(4) Section 4—after its present contents as amended by this section (now to be designated as subsection (1)) insert:

(2) For the purposes of this Act, a reference to a representative of the Church is a reference to—

(a) a member of the clergy, including the Archbishop, a Bishop, vicar, priest, deacon, sister, nun, brother, monk and any other member of a Roman Catholic religious order in the Archdiocese or the Diocese; or

(b) an official or officer of, or a member of staff of or a volunteer at, the Archdiocese or a parish in the Archdiocese; or

(c) an official or officer of, or a member of staff of or a volunteer at, the Diocese or a parish in the Diocese; or

(d) a teacher, member of staff or volunteer at a Roman Catholic school in the Archdiocese or the Diocese.

The CHAIR: This bill has been drafted to make changes to the Roman Catholic Archdiocese of Adelaide Charitable Trust Act for a particular purpose. One of the trustees has restructured, and therefore the legislation provides for the new entity to continue to participate in the administration of the trust and also makes provision for any future restructures of any of the trustee entities.

The Hon. Mr Parnell's amendments do not come within the order of reference in that they deal with the application of the property and income of the trust, which is not the purpose of the bill before this council. I therefore rule that these amendments cannot be considered in this legislation. Not even a prior instruction would give the power of the committee of the whole to consider these amendments, as an instruction must be relevant to the subject matter of the bill and does not allow amendments to the title to introduce a subject matter which is different from that of the bill in question.

Erskine May (22nd edition) states on page 515 that for such instruction to be in order the objects must be cognate to the general purposes of the bill. Instructions are out of order if they attempt to embody in a bill principles that are foreign or not cognate to it. In this instance these amendments are attempting to introduce into the bill a subject which should properly constitute a distinct measure.

The Hon. M.C. PARNELL: I reluctantly accept the Chair's ruling. I am conscious that on the one occasion in the last nine years where I have objected to a ruling of the Chairperson, I recall being told at the time that, had I been successful, there would have been no alternative but for the President to resign. I am not looking for that outcome on this occasion, so I will accept that ruling for now. However, I do put on the record that adding to my list of parliamentary reform for next year when we come back, in addition to the invitation minister Hunter has offered me to attempt to fix up the communication channels of the various organs of parliament, I would like to have a look at some of these rules as well. I will not pursue that clause any further, but I do have a contribution on clause 5.

Clause passed.

Clause 4 passed.

Clause 5.

The Hon. M.C. PARNELL: My intention would have been to have included an additional component to clause 5, and I do note that often when what is thought of as novel material is introduced into a bill it very often involves entire new clauses or new parts or new divisions. I note that section 5 in the act is a clause in relation to the objects of the trust. That clause having been opened up, my expectation would have been that if I had amendments that related to the objects of the trust, which my tabled amendment certainly does, I should have been allowed to at least put that and test the will of the committee.

That is not to be today, but I want to put on the record that what I think does need to be included in this section, in relation the objects of the trust, is that the property and the income of the trust should be applied, in fact must be applied, firstly—if the 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 and neglect, and, secondly, to further the objects of the trust.

That is the reform that I believe is necessary. It makes it clear that no-one who has proved their claim or reached a settlement should miss out for want of access to funds because here we have the repository of vast funds owned by the Catholic Church. So, again, I do want to move the amendment. I accept that the ruling will be exactly the same as before and I do not require the Chairperson to read that out again. I just express that I am disappointed we cannot test the will of the council on this amendment but I do formally move amendment No. 4 standing in my name. I move:

Amendment No 4 [Parnell–1]—

Page 3, after line 32—Insert:

(2) Section 5(2)—delete subsection (2) and substitute:

(2) The property and 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 objects of the Trust.

The CHAIR: As I said in clause 3, the ruling is the same.

Clause passed.

Remaining clause (6) and title passed.

Bill reported without amendment.

Third Reading

The Hon. I.K. HUNTER (Minister for Sustainability, Environment and Conservation, Minister for Water and the River Murray, Minister for Aboriginal Affairs and Reconciliation) (12:56): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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