Bishops Should out Their Lawyers

By Jack Waterford
Canberra Times
January 12, 2013

http://www.canberratimes.com.au/opinion/bishops-should-out-their-lawyers-20130111-2clni.html

Illustration: Ron Tandberg.

Everyone has an opinion, it seems, on whether priests should be allowed to hide behind the seal of the confessional if anyone tells them about the sexual abuse of children. It's an issue less likely to arise at the royal commission into institutional sexual abuse of children than some think. But here's one that will - or should - will we let priests, or bishops, or principals, or for that matter, lawyers, hide behind the seal of legal professional privilege?

Suppose a school principal is informed of allegations that a teacher has sexually molested a pupil. She (the principal) wants to do the right thing, by everybody, perhaps particularly for the child. First, of course, the child must be protected from the risk of further harm, assuming, for the moment, the allegation could be true. That obligation, probably, stands before any other. But the principal has other obligations too.

She has an obligation to the teacher, the subject of the allegations, to do a proper investigation, or, at the least to see that a proper investigation occurs, probably by the police. There are questions about the school's obligations to the alleged victim, and also to other victims. There will almost inevitably be questions about the school's liability, given the propensity for lawyers to sue those of potential defendants with the deepest pockets. The principal consults a lawyer about the full range of her duties and obligations, whether by force of positive statute law (say, in relation to the mandatory notification of suspected child abuse), or in relation to its duty of care, or status as employer or perhaps occupier of land. The principal is frank with the solicitor, who, professionally, recommends that others higher and lower in the school system become involved in the decision making. Some of the advice - say about the duty to move to protect the alleged victim - is unequivocal. Other bits of the advice speak of choices, and the need to move so as to minimise the school's liability at common law.

Were the case ultimately to go to court - so as to determine damages paid by the school, or perhaps to be paid by the ultimate controllers of the school, say an archdiocese - there would be no question is disclosing the conversations and consultations between the school and its lawyer, or the archdiocese and its lawyers. These would be held to be legally privileged, because, it is said, the public interest requires that everyone, including corporations, should be able to be free and frank with their legal advisers so they can get the best advice. The privilege belongs to the client, not the lawyer (for whom it is an obligation unless the client waives the privilege). Since it is a lawyers' rule, made and enforced by lawyers, it will surprise no one to know that it is not subject to any balancing public interest test, although the privilege cannot stand if it can be shown that the advice-taking was in pursuit of some effort to break the law.

But a royal commission of the sort in which the government is now engaged is not part of a judicial proceeding, but an effort to get at the truth. And it has been already made clear, in any number of pontifications about why such an inquiry is necessary, and why it should be pursued to the end, that the inquiry is not really into strict matters of legal duty or obligation, but into the much more subjective question of whether people, particularly the leaders of institutions, did the right things. Did they have things in the correct balance? Or did they, juggling all of the matters before them, do wrong, most particularly to the victims of sexual abuse, people to whom they owed a host of special duties and moral obligations, whether because of the victims' ages, inferiority of power, or pastoral relationship?

People have asserted, and with some evidence, that various bishops, or others in positions of authority, have culpably mismanaged their duties to such victims by giving too much importance to the need to protect the assets of, or the reputations of, their institutions.

It has been said, and again with some evidence, that the allegations of some victims have been discounted, or insufficiently investigated, or that authorities have responded to allegations by merely transferring perpetrators to positions and places where they repeated the patterns of abuse.

Others are accused of sheltering perpetrators, or being highly unhelpful to investigators. And others have been accused of withholding their love and compassion for the victims, instead treating all complainants, and claimants, as probable liars whose evidence and assertions must be rigorously tested, with maximum hostility and insult, lest the institutions find themselves being taken for a ride by smarties. Others, of course, have been accused of insisting on confidentiality clauses in any settlements, so that others do not become aware that the institution has failed some of those in its charge.

If the truth of such assertions is to be established, it might well be necessary, or worthwhile, to penetrate the veil of secrecy between the priest and his lawyer confessor. One does not expect this will show either institutional head or lawyer to be doing anything unlawful, but it may well show a marked difference between veneers of charity and compassion for victims, even-handed intention to do right by all, and high scepticism about claims, anger and exasperation at an imaged culture of victimology, determination to resist efforts to plunder an institution's treasure and a desire to stonewall claims, be as unhelpful and slow a litigant as possible, and anxious to find settlement at the lowest possible price.

None of this is illegal, or course. But critics of institutions, particularly the Catholic Church, have had a field day in drawing attention to the marked distinction between what some church leaders have said and what they have done. More than anything the royal commission is not into abuse as such, but into what was done about abuse once it was detected. The insinuation, which has had a lot of evidence to support it, has been that the church did less than it should to protect and rehabilitate the victims, and far too much to shelter perpetrators and to resist liability or criticism. The sundry humiliations of the inquiry - now and in the future - are the inevitable consequences of such policies, assuming this is what happened.

For the moment, the public relations problems being faced by this have been mostly for the Catholic Church, probably as much because it is one of the most visible institutions as because of anti-Catholic animus in some of the accusers. The Catholic Church deserves what it gets, but there has been too little recognition, to date, that the nightmare and scourge of the sexual abuse of children has been as common in all of the other religious congregations (including non-Christian ones), as well as in many social, cultural and sporting institutions (government and community-based) as well as in institutions, such as orphanages, child welfare homes and other centres run by the state.

If the royal commission is properly organised, and managed for fairness rather than headlines, there will be many more days in which social workers, child-welfare managers, scout leaders, rabbis and military cadet officers will be under cross-examination rather than bishops or people with the stewardship of Catholic schools. There is an argument indeed that a future-oriented inquiry should give somewhat more emphasis to this area, if only because there is some evidence suggesting that the ''epidemic'' of sexual abuse in the Catholic church has now declined (particularly with the massive decline in the numbers of religious) and that a good (if not sufficient) deal of the embattled resistance by church authorities has already changed. Neither seems to be true of some of the institutions that have escaped the spotlight which has been put on the church, and some of its mobile public relations disasters, such as Cardinal George Pell or Bishop Tony Fisher.

Only a few congregations, of course, will be able to pretend that the supposed seal of the confessional is a factor which inhibits their capacity to be frank with the commission. But many others - even the Catholics - will claim over and over that they acted on legal advice. Why should they be able to hide behind it? And if, as they imply, they would have been more human, more humane and more kindly to victims, but for the fact that lawyers (or, and this will be claimed too, insurance companies) insisted otherwise, why should the lawyers (and the insurance companies, or perhaps departments of finance) be allowed to escape criticism? Is there indeed a greater public interest in protecting the lawyer-client relationship than the pastor-child relationship? The duty of a state welfare system to those its care? Teachers to pupils? Even assuming there was some benefit in confidentiality between lawyer and client, why is it that of all the so-called public interest privileges it is not subject to any balancing with other public interests? The answer, of course, is that the privilege is judge-made and judge enforced, and that judges rarely subject any public interest operating to the benefit of lawyers to critical scrutiny. That's why, for example, it is so difficult to sue a barrister (which is to say a future judge) over his advocacy.

A rare insight into cute legal advice occurred a bit over a decade ago when advice given by a senior barrister, later a High Court judge, was revealed. A developer was being sued for a large sum of money which, he frankly told his solicitor as senior counsel, he owed but could not immediately pay. Advisers devised a strategy of interlocutory delay - later found by the Federal Court to be an absolute abuse of the processes of the court. The client ultimately went broke, and the creditor bought his assets (including copies of the legal advice) at auction. The judge, and the then prime minister, John Howard, stared down vigorous criticism of the judge.

So strong is the convention protecting the privilege, that it can be used to protect information clearly in the public interest. This week, for example, the Australian Federal Police was obdurately hiding behind legal privilege it could have waived, had it wanted, to avoid explaining an executive decision to stop trying for a criminal conviction in the wheat for oil cases. The AFP rarely has difficulty in discussing legal advice if its suits its PR version of itself. Naturally the AFP was also virtuously pretending that it could not discuss criticism, by one of the investigators, to the effect that the problem of the case was not the evidence but the lack of senior police will, to carry on. This was, it said, a sub judice matter.

Likewise the government has been cute in using legal privilege to avoid explanation of stages of the AWU affair, and the Peter Slipper affair.

There are even some who suggest that legal advice is sometimes obtained tactically or strategically, so as to put a veil behind things ministers do not want to emerge under freedom of information. If bishops did that, of course, it would be a wicked and disgraceful thing. When it is done by ministers, secretaries or police commissioners, it is apparently good stewardship.