Catholic Lawyer Believes Abuse Inquiry Has Created Unreal Compensation Hopes
The Guardian
A prominent Catholic lawyer says the child abuse royal commission has set up unreal compensation expectations among victims. Frank Brennan, who is professor of law at the Australian Catholic University, also says there are many risks in a long-running royal commission. On Monday in its interim report, the commission said it would need a two-year extension and an extra $104m to finish its job. This would take it to December 2017. It said a priority would be a compensation scheme for victims. In an article for the online journal Eureka Street the Jesuit priest describes the commission’s statistics on abuse claims in Catholic church institutions as “frightening and shaming”, and says: “The commission has provided a safe space for victims to come forward and tell their stories.” But he argues the commission is setting impossible questions for witnesses around compensation. He says under recent Australian law there are limits to the extent to which an organisation will be vicariously liable for one of its employees sexually abusing a child. "The commission is clearly anxious to expand the realm of vicarious liability, much in the way that the courts in the UK and Canada have done, however there is little point in asking witnesses about this, let alone asking church leaders," he writes. "It is not a matter for the commission. It is a matter for the high court." The commission has made slight progress on an important issue – a national working with children check scheme, Brennan says. He also points out that lots of bishops and leaders of religious groups have appeared before the royal commission. However, he says "we are yet to see any state premier, minister or departmental head appear". The legal issues need to separated out from "the political and media maelstrom" which accompanies a commission of this sort, he argues. Brennan says lessons could be learned from the four-year Aboriginal Deaths in Custody commission called in 1987 because Indigenous Australians’ imprisonment and deaths in custody rates are 10 times the national average. "Lots of research was undertaken. Lots of public hearings were held. Lots of state police were put through the wringer. Lots of previous deaths and half baked coronial inquiries were scrutinised. Lots of recommendations were made," he says. Yet Indigenous imprisonment rates are higher today than they were before that royal commission was convened, he says. "In 1991, Aborigines were 14% of the prison population. By 2013, they were 26% of the prison population. "Royal commissioners may have extensive legal powers of inquiry but they have very limited capacity to influence outcomes." Brennan says the commission needs to clarify what it actually has the power to change or recommend, and to focus "its activity more on looking for lessons rather than apportioning blame for the past so that procedures might be improved in future". Comment has been sought from Brennan and the Royal Commission into Institutional Responses to Child Sexual Abuse.
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