Churches Protected by Trust Laws

By Hamish Fitzsimmons
ABC - Lateline
February 25, 2013

http://www.abc.net.au/lateline/content/2013/s3698168.htm

[with video]

The Victorian inquiry into sexual abuse in religious organisations is likely to recommend a reform of property trust laws which allow churches to avoid being sued.

Transcript

EMMA ALBERICI, PRESENTER: One of the key recommendations of Victoria's inquiry into sexual abuse by religious organisations will be that property trust laws be reformed to enable people to sue churches.

The prediction comes from legal researcher Judy Courtin who has made numerous submissions to the inquiry on behalf of abuse victims.

And ahead of committee hearings this week in Ballarat where dozens of male abuse victims have taken their own lives, there are calls to fast track support services to stop more deaths.

Hamish Fitzsimmons reports.

HAMISH FITZSIMMONS, REPORTER: Victoria's inquiry into sexual abuse by religious organisations has been repeatedly told victims of sexual abuse by the Catholic Church have few legal options because the only legal entity the Church has are property trusts. It's believed the inquiry will recommend change.

JUDY COURTIN, LEGAL RESEARCHER: It is going to recommend some legislative reform or amendments to the Property Trust Act for the Church.

HAMISH FITZSIMMONS: Legal researcher Judy Courtin has made submissions to the inquiry on behalf of abuse victims and believes property trust reform recommendations will be a key part of the committee's final report.

JUDY COURTIN: It will give victims equal access to justice in the sense that at the moment they can't sue the Church, they can't sue the Church in the courts, because there is no legal entity for the Church that can actually be sued.

HAMISH FITZSIMMONS: The property trust laws have existed for more than a century and apply to most churches. The Catholic Church says they serve a worthwhile purpose.

SHANE MACKINLAY, CATHOLIC CHURCH SPOKESMAN: They work well. They allow the various parishes to hold their churches, their schools, their parish halls and that's what they're there for and they continue to perform that function very effectively as far as we're aware.

HAMISH FITZSIMMONS: Others don't think the trust arrangements are fair to victims.

DAVID SHOEBRIDGE, NSW GREENS MLC: Victims and survivors have to go in search for bishops or past priests and individuals to be held accountable. Now that's not good enough. If the Church wants to live in a 21st Century society it needs to follow the rules and have a 21st Century structure and that means being a corporate identity that can be held accountable.

HAMISH FITZSIMMONS: In 2007 the High Court supported a NSW Supreme Court ruling that churches could not be held legally liable for abuse cases because the church doesn't exist as a legal entity and so it's not liable for its priests or their actions. It's called the Ellis defence.

JUDY COURTIN: The law in Australia at the moment is that a property trust cannot be sued because the trustees of that trust were never responsible for the behaviour vis-a-vis the sexual assaults of the priests. The property trust was designed solely to manage the assets and the wealth of the Church.

HAMISH FITZSIMMONS: The Church says connections between the trusts and alleged abusers are difficult to establish and it says it doesn't shirk taking responsibility.

SHANE MACKINLAY: The Church recognises that we have a moral responsibility to assist victims in whatever way we can. And so, wherever it's been established that a victim has been abused by someone within the Church, our processes Towards Healing and the Melbourne response provide very generous assistance beyond anything that might be ever be able to be demonstrated as a legal liability.

HAMISH FITZSIMMONS: NSW Greens MP David Shoebridge tabled a bill in 2011 to reform property trust laws in his state. It didn't pass. He believes Victoria is in the position to set a legal precedent.

DAVID SHOEBRIDGE: The Church needs to be held legally accountable. This is a great opportunity for Victoria to take the first step and then for every other state and territory to follow.

HAMISH FITZSIMMONS: Victoria's parliamentary inquiry will move hearings to Ballarat this week. The town is an epicentre of abuse cases from the St Alipius and St Patrick schools decades ago by a small core of priests and brothers, some of whom have been convicted for their crimes. At least 40 men who were sexually abuse have taken their lives. Others live with the consequences.

PETER BLENKIRON, ABUSE VICTIM AND CAMPAIGNER: The day I actually decided to take my life, my wife said to me that morning, she said, "I just want you to know that I'm proud of the way you're dealing with this. I'd sooner the kids have a father that's - has a difficult time in life and will do whatever it takes to get through it than to have a dad that gives up."

HAMISH FITZSIMMONS: Mr Blenkiron says many survivors wait too long for support services and he wants a pathway for recovery like those for car accident or work injury victims.

PETER BLENKIRON: I call it the CRI - church-related injury. And it speaks for itself. I think it should be run by the Government and paid for by whichever religious body was responsible for that abuse.

HAMISH FITZSIMMONS: Peter Blenkiron has stood on the precipice of despair and says victims should get on the path to being a survivor sooner rather than later.

PETER BLENKIRON: It's like a time bomb ticking. If you can defuse the bomb, the fallout's minimal. If a bomb goes off, then you'll spend the rest of your life picking up pieces of shrapnel. But there's hope, there's hope. The sooner you get onto it, the better your chances are.