The Catholic Church continues to rely on the legal argument that it is incapable of being sued in negotiations with alleged child abuse victims, a day after Cardinal George Pell acknowledged they should be able to sue the church, a lawyer says.
Melbourne lawyer Dr Vivian Waller said she had acted on behalf of victims in two pre-arranged settlement discussions with lawyers for two Catholic orders on Tuesday.
She said the lawyers indicated, in relation to three separate victims' abuse claims, that they may still rely on a NSW Court of Appeal decision, which is often called the Ellis defence. The court held in 2007 that the church's property trust - its only legal entity - could not be held liable for the actions of priests.
''They've said they are not making a decision to abandon the Ellis defence,'' Dr Waller said.
She put to them Cardinal Pell's statement at the Royal Commission into Institutional Responses to Child Abuse on Monday. The statement, read by senior counsel Gail Furness, said that in Cardinal Pell's view, ''the church in Australia should be able to be sued in cases of this kind''. This marked a dramatic departure from Cardinal Pell's previous approach to victims who pursued legal action against the church.
''[The church's lawyers said] on the contrary, the defence remains available to us,'' said Dr Waller, who has represented hundreds of victims alleging abuse against religious clergy.
''It would be helpful if the church overall would agree on a particular approach but, unfortunately, it's the same old story that the victims face a very fragmented church. Cardinal Pell is not the head of all of the orders in Australia, and the church … continues to hamper sexual assault victims. What's needed is a unified approach.''
The Victorian inquiry into the handling of child abuse last year recommended that any organisation receiving government funding or tax exemptions be incorporated and insured, which would dismantle the Ellis defence.
A Coalition spokesman said the government was still considering the recommendations.
''As the Premier indicated last year, priority is being given to the immediate protection of children through the strengthening of the criminal law,'' the spokesman said.
Victims' lawyers have said negotiations with the Catholic Church had often been frustrated by the Ellis defence as it afforded the church greater bargaining power when discussing possible settlements.
Andrew Morrison, SC, who represented abuse victim and lawyer John Ellis in the Court of Appeal case, said the Catholic Church ultimately needed to give effect to Cardinal Pell's ''concession'' to victims.
''The church doesn't have to take these defences - of course, it's up to them. The church obviously has been giving instructions to its lawyers to fight every case as hard as it can and strike them out by fair means or foul. That's the problem,'' Mr Morrison said.
He said the church had not indicated whether victims would be able to sue retrospectively or ''whether they'll take responsibility for their priests. If they don't, it's a useless concession. I'd be very concerned if they don't go further because that offers … in my view false hope to victims.''
Father Brian Lucas said on behalf of the Australian Catholic Bishops' Conference that it was impossible to incorporate the Catholic Church, which represented 25 per cent of the population, as a single entity.
He said the church had ''no position'' at this stage on whether it should be vicariously liable for criminal behaviour but said that the High Court had held in a previous decision that it was not.
''The question of vicarious liability for criminal conduct is an issue that the royal commission will need to consider. And the circumstances in which that law should be changed requires very careful consideration … because of the ramifications across all organisations in society.''
