Reforms Remove Barriers to Church Victim Payouts

By Jane Lee
The Age
November 14, 2013

http://www.theage.com.au/victoria/reforms-remove-barriers-to-church-victim-payouts-20131113-2xh5h.html

Victims will have a much better chance of claiming compensation for historic child abuse from religious and other organisations if the state inquiry's recommendations are implemented, lawyers say.

After an 18-month inquiry, the parliamentary committee investigating the matter

recommended law reforms to remove major barriers that typically prevent victims from successfully suing the Catholic Church and other religious bodies. These include:

Dismantling the "Ellis defence", which prevents unincorporated religious organisations from being sued.

Excluding child abuse from the statute of limitations, which bars lawsuits after a certain period.

Creating an independent "alternative justice avenue" for criminal child-abuse victims.

Lawyer Angela Sdrinis said that as a package, the reforms were "the victims' wish list".

"There will always be problems of proof in historical abuse claims ... but to acknowledge that [this is an issue] for many victims, they've recommended the alternative dispute process, which will not apply the normal standards of proof of a court of law."

The report said no one in Victoria had ever successfully sued unincorporated religious organisations. Cases in other states, such as NSW, had failed because they were aimed at such organisations' property trusts, which were set up to manage property, not supervise church members.

This left victims with no one to sue.

Ms Sdrinis said the argument that the Catholic Church is not a legal entity that can be sued – known as the "Ellis defence" – had been the "elephant in the room" that frustrated many negotiations she entered on behalf of victims over the past 10 years.

"You all know that if you can't settle [the dispute out of court], you've got nowhere else to go."

In its report, the committee recommended that the state government "consider requiring non-government organisations to be incorporated and adequately insured" when it funds them or provides them with tax exemptions. It also recommended that the state work with the federal government to require organisations that engage with children to "adopt incorporated structures" nationally.

She said this would remove the biggest legal hurdle for victims claiming compensation.

"The statute of limitations can [now] be overcome; you can apply for an extension. But no judge has the power to ignore the legislation. So if the Ellis defence is abolished in this way, there will be successful claims against religious institutions.

"The common-law system of, 'You do the wrong thing, you have to pay' modifies behaviour in a way that penalties and regulatory systems don't."

Lawyer and victims' advocate Judy Courtin was concerned that the committee did not recommend this in stronger terms, because if it were not implemented, it would render the other law reforms meaningless.

"Even assuming there's no limitation period, they need to have an entity to sue directly and indirectly, and some form of compensation or redress scheme."