Church May Lose 'Shield'

By Barney Zwartz
The Age
January 30, 2013

www.theage.com.au/victoria/church-may-lose-shield-20130129-2dj1e.html

Victoria's clergy sex abuse inquiry is likely to recommend at least six state laws be reformed to hold the Catholic Church to account, including removal of the legal ''shield'' it has used to avoid being sued by victims.

Chairwoman Georgie Crozier said the committee already had a good idea of the sort of recommendations it would make. Fairfax Media understands the committee is eager for several laws to be changed this year.

The Victorian inquiry does not need to await the outcome of the royal commission into the sexual abuse of children, set up by the Gillard government and yet to take formal evidence. Ms Crozier said she expected the state inquiry to be of great use to the commission.

Enabling the church to be sued, mandatory reporting of suspected abuse, concealing crimes and extending the statute of limitations for child abuse are all issues that could be dealt with by the Victorian government.

Ms Crozier said at the first hearing for 2013 that the committee now had a good idea of the terrain its report would cover, based on the wide evidence it had already heard. The inquiry is expected to recommend amending the Property Trust Act to halt the so-called Ellis defence, named for a case in New South Wales, which the church uses to say it is not actually an entity and therefore there is nothing for victims to sue.

Anti-abuse campaigner Anthony Foster said the Victorian inquiry would be more important than the royal commission in holding the church to account and improving the plight of victims.

''Much of what the Catholic Church has done has been terrible, but some of it has been done within the framework of the laws of our society, and it's the state laws that need to be changed,'' he said.

The corporations sole legislation, which sets churches apart from companies, could also be reformed. Company chief executives are responsible at law for actions by their predecessors, but bishops are not accountable for the actions of previous bishops.

Many witnesses have mentioned mandatory reporting of suspected child abuse, which applies to such professionals as teachers and doctors. The Victorian Catholic Church has recognised some form of this is inevitable by advocating a version of it for the first time in its submission to the inquiry.

But witnesses have said mandatory reporting must be to the police, because it involves suspected crimes, rather than to the Department of Human Services, as in the case of doctors and teachers. Witnesses have been divided on whether mandatory reporting should also apply to the confessional, which the church insists is sacrosanct and inviolable.

Witnesses have also suggested that the statute of limitations must be amended because it can take decades before victims of child sex abuse can admit what happened to them and seek redress.

Lawyer and advocate Judy Courtin said vicarious liability was another important area. Under the present common-law arrangements, the church has argued there is no employer-employee relationship between bishop and priest, although this was recently rejected by a British court.

In Victoria, concealing abuse is not an offence under the Crimes Act, as it is in NSW, although it comes under the common-law offence of misprision, and the inquiry is likely to recommend formalising it.

The committee is also likely to consider the church's internal procedures for dealing with abuse complaints, under which not one offence has been reported to police although the church admits settling 618 claims in the past 16 years.

Witnesses have suggested there is a conflict of interest in the church's investigator, Peter O'Callaghan, QC, calling himself an independent investigator when he is paid by the church.