(AUSTRALIA)
Australian Broadcasting Corporation - ABC [Sydney, Australia]
April 11, 2025
By Loretta Lohberger
In short:
Seven years since a royal commission into abuse handed down its final report, there are concerns some institutions are still dragging their feet when it comes to facing up to child sexual abuse.
Child safety expert Professor Leah Bromfield describes the continuing secrecy and litigious attitude of some institutions as “a second wave of institutional betrayal” of victim-survivors.
What’s next?
Lawyers are hoping legislative change can remove a legal technicality that the Catholic Church can now rely on to lessen the amount of compensation it could be ordered to pay victim-survivors of historical child sexual abuse.abc.net.au/news/catholic-church-second-wave-of-institutional-betrayal/105152016Link copiedShare article
The work of the child sexual abuse royal commission gave victim-survivors hope — that institutions would learn from past failings, and support victim-survivors.
But many are now feeling let down by institutions they say are not living up to those hopes.
“They should be doing things that they’re not doing,” said Lawrie Donaldson, a victim-survivor of abuse in the Catholic Church.
The Royal Commission into Institutional Responses to Child Sexual Abuse found there were “catastrophic failures of leadership of Catholic Church authorities over many decades, particularly before the 1990s”.
Mr Donaldson, who was abused in the 1970s in Townsville, said he hoped the church would have “lent into their mistakes” in the years since the royal commission’s final report was handed down in 2017.
But he said he did not see this happening.
“Their concerns are for the reputation of the church and its standing and not at all real concern for the victim-survivors of clerical abuse.”
As recently as last month, the Catholic Church in Tasmania refused to answer questions about a paedophile priest, Daniel McMahon, who joined the Archdiocese of Hobart in the 1990s and was a priest in the archdiocese until he died in 2012, despite allegations of child sexual abuse against him.
In response to a request for interviews, an archdiocese spokesperson told the ABC:
“For reasons of confidentiality the Archdiocese of Hobart does not publicly comment on individual matters.”
It has been reported numerous times that McMahon abused children, including during his time as a Christian Brother in Western Australia and South Australia.
The current Archbishop of Hobart, Julian Porteous, and his predecessor, Adrian Doyle, who was the archbishop when McMahon was a priest in Tasmania, also both declined to answer written questions.
The written questions included questions to Archbishop Porteous about how a similar situation would be dealt with if it happened today.
Victim-survivor Peter Cotton had previously tried to seek answers from the archdiocese about McMahon and while he said his dealings were cordial and professional, he found the archdiocese to be “not very helpful at all”.
‘Second wave of institutional betrayal’
Australian Centre for Child Protection director Leah Bromfield said there was a “second wave of institutional betrayal” affecting victim-survivors.
Professor Bromfield said victim-survivors told the royal commission about how institutions had failed them.
“That was where the institution in which they were sexually abused — either as a child or when they came forward as an adult — let them down,” she said.
“They let them down by putting protection of the perpetrator or protection of the institution above protection of children, they were quite litigious in their responses, they were not transparent.”
Professor Bromfield said victim-survivors initially felt like the handing down of the royal commission’s final report was “a watershed moment”.
“The pope apologised for clergy abuse, and survivors thought … that apology meant that they would act differently,” she said.
“And now, seven years on from the royal commission handing down its final report, victim-survivors are really noticing that we’re losing ground, that organisations that apologised in the past are going back to taking a very litigious response.
“[Victim-survivors] are seeing organisations putting the bottom line, protecting the institution or protecting perpetrators above protecting children and victim-survivors again,” she said.
“And it hurts. It hurts victim-survivors a lot because they dared to hope that things were better.”
High Court ruling makes court action harder
The High Court late last year up-ended some victim-survivors’ chances of receiving compensation through the courts for historical abuse.
In its decision, the High Court found a priest was not an “employee” of the church, therefore the church cannot be held indirectly — also known as “vicariously” — liable for the actions of an abusive clergy member.
The decision followed an ultimately successful appeal by the Bishop of Ballarat, Paul Bird, against a Victorian Supreme Court decision that found the Ballarat diocese vicariously liable for the sexual abuse of a boy by diocesan priest Bryan Coffey in 1971.
High Court under fire over Catholic Church abuse case
The Catholic Church has won a High Court appeal against rulings it is vicariously liable for the actions of a priest who allegedly sexually abused a five-year-old in 1971, sparking calls for change.
Vicarious liability is an indirect liability. It’s the responsibility employers have for the wrongdoing of their employees.
Often, in historical child sexual abuse cases, lawyers for the plaintiff will argue an institution was negligent and/or that it was vicariously liable for the abuse that is alleged.
For a claim of negligence to be successful, there needs to be evidence that the institution knew about the risk to the child and did not act.
Lawyer Judy Courtin, who specialises in historical child sexual abuse cases, described the High Court’s decision as “highly controversial … conservative and retrograde”.
“The High Court held that Catholic institutions cannot be held liable for the crimes of their clergy, whether they’re priests or Christian Brothers or brothers, or nuns for that matter … unless we prove that they had knowledge prior to that child being assaulted, Dr Courtin said.
“It’s almost as if we’re going back to the dark ages, pre-royal commission.”
Survivors Network of those Abused by Priests Australian leader Don McLeish said the decision was “a shocking blow” to victim-survivors.
Mr McLeish said he had lost the optimism he had when the royal commission’s report came out.
“It’ll just be same old, same old,” he said.
The Bird decision also affects the Anglican Church and some other churches.
Dr Courtin said it was a very different situation for other institutions, such as public schools.
“For example, if a 12-year-old is raped by a state school teacher in a state school or independent school, yet they had no knowledge of that offender, the school can still be held what’s called vicariously liable,” she said.
Following the decision, Bishop Bird issued a statement.
In it, he said:
“I would like to make it clear that the Diocese of Ballarat will continue to accept liability and provide compensation in cases where there is evidence that the Diocese has been negligent in safeguarding.”
It is the latest argument the church can rely on to lessen — or avoid — compensation payments to victim-survivors who chose to sue the church.
Hopes for legislative reform
A previous argument known as the “Ellis defence” — which prevented abuse survivors from suing unincorporated organisations including churches — was scrapped with legislative change brought in following recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse.
Dr Courtin is hopeful the Bird decision can be rectified with legislation, but that would take time and would not help people who have cases already before the courts.
At a meeting in February the Standing Council of Attorneys-General, which is made up of the federal, state and territory attorneys-general agreed to “work together to further consider the impacts of the High Court decision and to consider potential reform options”.
Church says it has ‘continued to learn’
The ABC has contacted the Australian Catholic Bishops Conference (ACBC) for comment.
The ACBC and Catholic Religious Australia (CRA), however, report regularly on their combined responses to the royal commission.
In their most recent report, published in 2023, the two national Catholic organisations said:
“During the five years since the ACBC and CRA first responded to the recommendations of the royal commission, we have continued to learn about the devastation caused by child sexual abuse to victims and survivors, their families, and their supporters.
“We have learnt more about the types of response to child sexual abuse that promote and support healing and recovery.”
The report also said:
“The range of initiatives taken by the ACBC and CRA has at times gone beyond what the royal commission recommended so as to better implement all relevant recommendations and, at the same time, promote a culture of safeguarding in the Catholic Church in Australia.”