Child Abuse Survivors Now Able To Sue Churches

By Victoria Quested
Ten Daily News
June 10, 2018

https://tendaily.com.au/news/australia/a180610gmh/child-abuse-survivors-now-able-to-sue-churches-20180610

NSW and Victoria were the first states to join the National Redress Scheme for child abuse survivors.

John Ellis joined the attorney general to announce the new laws.

New South Wales has become the second state to finally give child sex abuse survivors the power to sue institutions such as churches for compensation.

Under sweeping changes to NSW's civil litigation laws, survivors of child sexual abuse will now be able to sue organisations, including churches.

The state's attorney general, Mark Speakman, announced on Sunday the changes would remove legal barriers that have stopped victims from seeking justice, following the recommendations from the Royal Commission into institutional child sexual abuse.

"The Royal Commission found many survivors felt let down by the current civil litigation system which made it difficult for them to seek damages and hold institutions to account," Speakman said.

"These reforms will provide access to new avenues to allow survivors to pursue compensation so they can focus on recovering and moving forward with their lives.”

Under the new laws, churches will no longer be able to avoid liability for "non-employees" who carry out abuse, such as volunteers or religious officers.

A new statutory duty of care will also be imposed on all institutions that exercise care or responsibility for children.

Speakman announced the government would reverse the onus of proof, thereby requiring organisations to prove they took reasonable precautions to prevent abuse.

The "Ellis Defence"

In 2007, the Catholic Church won a legal battle against former altar boy John Ellis, who was sexually abused when he was 13 by Father Aidan Duggan of the Bass Hill Parish.

After suing the priest, Cardinal George Pell and the trustees of the Roman Catholic Church for the Archdiocese of Sydney, the NSW Court of Appeal found church assets could not be targeted by Ellis in pursing compensation for the abuse because the church trustee could not be held to account for the crimes of individuals. Father Duggan, however, died in 2004.

The fact a church could not be sued as it did not legally exist because its assets were held in a trust became known as the "Ellis Defence", and has been used by churches to avoid accountability for abuse carried out by individuals within the institution.

Under the new changes, legislation will be introduced to close this loophole.

Courts will have the power to appoint trustees to be sued if those institutions fail to nominate an entity with assets and allow the assets of the trust to be used to satisfy the claim.

Speaking to reporters alongside Speakman, Ellis said the reforms would enable "thousands of survivors" to seek compensation like he had been unable to.

"As we confine the Ellis Defence to the annals of legal history, I hope we can look forward now in this state and throughout the country to a society where child protection, and where the accountability of those institutions who take that sacred trust of looking after children can be given the prominence it deserves," he said.

NSW follows in the footsteps of Victoria, which passed laws to counteract the Ellis Defence in May.

NSW Catholic Church To Cooperate

The Catholic Archdiocese of Sydney, along with ten other Catholic dioceses of NSW, said they would work with the government in relation to the reforms.

“For some time now, the Archdiocese of Sydney has been assisting survivors to identify proper defendants and ensuring claims are met,” the Archbishop of Sydney, Most Rev. Anthony Fisher OP said on Sunday.

“However the NSW Dioceses recognise more can be done to make access to the justice system easier. We support having a clear entity as a proper defendant for claims."

Fisher said the diocese had been consulting with the state government to ensure there were legal entities that provide "certainty, transparency and permanence", as well as the financial ability to fulfill the claims of sexual abuse survivors.

The Royal Commission into Institutional Responses to Child Sexual Abuse delivered 189 recommendations in its final report, after hearing evidence from almost 8,000 witness and receiving 1,344 written accounts of abuse.

Of those abused in religious institutions, 61.4 percent were in a Catholic institution.