Calls to Overhaul Legal Status of Catholic Church

ABC - Am
November 19, 2012

http://www.abc.net.au/am/content/2012/s3635453.htm

[with video]

TONY EASTLEY: There's renewed scrutiny of the legal status of the Catholic Church and how it avoids being sued by victims of abuse.

A court case in New South Wales five years ago found that the Church could not be held legally liable for abuse cases because the Church doesn't exist as a legal entity and it's also not liable for its priests nor their actions.

As Emily Bourke reports there are now moves now to change the laws, making the Church legally responsible and its assets subject to damages claims.

EMILY BOURKE: It's a legal technicality that dates back to the 1930s and it's given the Catholic Church unique legal status.

Unlike other Christian denominations that have been corporatised, the Catholic Church is not recognised as a legal entity and as such can shield its assets that are held in property trusts from any civil legal liability.

ANDREW MORRISON: This is a defence that is peculiar to the Roman Catholic Church in Australia and it's used as a very efficient weapon for beating down plaintiffs.

EMILY BOURKE: Andrew Morrison SC is from the Australian Lawyers Alliance.

ANDREW MORRISON: Whether it's the Anglican Church, the Uniting Church, the Salvation Army - they can be sued in respect of negligence or misconduct in a way in which that the Roman Catholic can't.

The Church is effectively immune from suit unlike every other church in Australia, and unlike the Roman Catholic Church in the rest of the common law world.

There was a further problem as well of course, and that was the Church's argument that in any event, we don't employ our priests and we're therefore not liable for anything they do.

EMILY BOURKE: Complicating matters further is the fact that many priests accused of abuse have taken a vow of poverty or are dead and that means victims have nobody to sue.

Andrew Morrison says while the Catholic Church has paid and continues to pay compensation, the law is frequently cited to avoid liability.

ANDREW MORRISON: In the Newcastle Maitland area, where there's been a large number of abuse of clergy and hundreds of victims, the diocese has not taken the point and has paid out I understand about $18 million in compensation so far and has a lot more to go.

But in Cardinal Pell's archdiocese, I know from personal experience, appearing in negotiations, they take the point in every case.

EMILY BOURKE: Sydney man John Ellis discovered this for himself when he tried to sue the Church for the abuse he suffered while he was an altar boy in the 1970s and 80s. In 2007 the New South Wales Court of Appeal upheld that the Church was not a legal entity that could be sued.

JOHN ELLIS: That was the end of the line for us. There was no possibility of any claim for compensation or damages against the Catholic Church.

EMILY BOURKE: John Ellis was ordered to pay costs of more than $700,000 but the Church has since agreed not to pursue those costs and has offered some financial assistance for the impact of the legal action.

John Ellis, who's a solicitor, works exclusively on clergy abuse cases.

JOHN ELLIS: If someone has a contract with the Church and that contract is breached, they're able to sue the Church and recover damages under that contract.

But if a, if a person is a, you know, a faithful parishioner of the Church, attends church in good faith and is harmed by the actions of the Church's priests, then that person has no recourse.

EMILY BOURKE: David Shoebridge, a Greens MP in the New South Wales Parliament, will present a private member's bill in the New Year, which will seek to change the act so that the Church's property trusts can be sued.

DAVID SHOEBRIDGE: If the Church was a corporation, it would be something like the fifth biggest corporation in Australia.

You only have to compare it to James Hardy, which was a large corporation but had nowhere near the size and scale of operations of the Catholic Church. And when it sought to avoid its liability we saw the state intervene and we saw a large compensation fund forced upon them.

EMILY BOURKE: Cardinal George Pell has responded by saying that the Catholic Church meets all of its legal obligations.

David Shoebridge again:

DAVID SHOEBRIDGE: Well I would agree with Cardinal Pell. The Church does meet all of its legal obligations. But that's a very narrow truth that he says, because the fact of the matter is, the way the law is structured, the Church has effectively no legal obligations. The Church itself doesn't exist in the eyes of the law.

I think it is time for the Church to realise it's the 21st century and to accept that if it's going to accept billions of dollars of state and federal money, if it's going to continue to have an active and growing part of the non-government organisation in child welfare, that it needs to have a legal structure that meets the kind of accepted minimum standards that we have for every other organisation in the 21st century.

EMILY BOURKE: At a federal level, Greens Senator Penny Wright is considering similar steps.

PENNY WRIGHT: I think that there is a clear moral imperative now that we take the action that's necessary to ensure that people can receive justice.

The Royal Commission is a very good step forward. And if it's necessary to remove some legal barriers for people who've experienced abuses at the hands of institutions including the Catholic Church, then I think there would be political will to do that.

EMILY BOURKE: For John Ellis and his clients change is overdue and inevitable.

JOHN ELLIS: To have the Church able to structure itself in that way and to deny justice to victims, it's immoral and it's abhorrent to any right thinking people I think. I can't think of any other organisation who would be allowed to operate in the community and cause harm to citizens of this state or any other state and not be held to account for that.

TONY EASTLEY: Sydney lawyer John Ellis ending Emily Bourke's report.