Legal Identity of Defendants (Organisational Child Abuse) Bill 2018
27 March 2018
Ms Ryan - It is a privilege to rise to speak today on the Legal Identity of Defendants (Organisational Child Abuse) Bill 2018. The purpose of the bill, as the shadow Attorney-General outlined earlier, is to allow child abuse victims to sue unincorporated non-government organisations which use trusts to conduct their activities. The Liberals and The Nationals support this bill because we recognise that it endeavours to close a legal loophole that in the past has been exploited to deny natural justice and compensation to survivors of child abuse.
The bill, as the member for Broadmeadows said, arises from the Betrayal of Trust report, which has been canvassed extensively in this place. I also wish to place on record my thanks to the members of that committee, particularly Ms Crozier in the other place who chaired the committee, but also the members for Ferntree Gully, Broadmeadows and Thomastown, a former member for Western Victoria Region David O'Brien and a former member for Southern Metropolitan Region Andrea Coote, who all worked tirelessly through what was no doubt a very difficult and emotional process not just for them but more importantly for the people who appeared before the committee and gave evidence, many of them for the first time.
That report of course triggered the commonwealth Royal Commission into Institutional Responses to Child Sexual Abuse, which handed down its final report in December 2017 and made a total of 409 recommendations. It was an absolutely exhaustive process, hearing evidence from almost 8000 witnesses in private sessions. It held 444 days of public hearings and took more than 1300 written accounts. Recommendation 94 of the royal commission's final report really gives rise to the legislation that we have before us today. That recommendation states:
State and territory governments should introduce legislation to provide that, where a survivor wishes to commence proceedings for damages in respect of institutional child sexual abuse where the institution is alleged to be an institution with which a property trust is associated, then unless the institution nominates a proper defendant to sue that has sufficient assets to meet any liability arising from the proceedings:
a. the property trust is a proper defendant to the litigation
b. any liability of the institution with which the property trust is associated that arises from the proceedings can be met from the assets of the trust.
It further urges the Australian government and most particularly state and territory governments to act upon that recommendation.
As we know it has taken a number of incredibly courageous individuals to get us to this point. The member for Broadmeadows mentioned Anthony and Chrissie Foster. Another of those people was of course John Ellis, who was a key witness before the royal commission and whose case gives rise to the legislation that we have before us.
John was abused as an altar boy in the Bass Hill parish in Sydney by a Catholic priest. He was a lawyer by profession and he later attempted to sue the church for common-law damages in 2002. Five years later that case was defeated in the High Court. Cardinal George Pell later apologised and said he did not feel that the church's treatment of John Ellis came from a particularly Christian point of view. He expressed his view that the church should be able to be sued in such cases. That case widely became known as the Ellis defence, and it really highlighted that some non-government organisations through their structures have made it almost impossible, or in the past have made it impossible, for a victim to find an entity that could actually be held liable for abuse.
In the Ellis case the church in fact conceded that the evidence filed established an arguable case, but then it successfully argued that that claim should be dismissed on the grounds that the Catholic Church in itself was not a legal entity and therefore could not be sued. While officials can be sued in many cases, as was the case with John Ellis, and is often the case in claims of historical sexual abuse, officials are often dead or unable to be located when those cases finally come before the court.
Under the bill that is in front of the house today those unincorporated organisations, including religious institutions, will be given an opportunity to nominate a legal entity that has sufficient assets for child abuse survivors to sue. If they choose not to do that — if they fail to nominate an entity — then a court will be able to order that an unincorporated organisation's trusts can be sued so that survivors of child abuse can indeed access compensation.
I do note some comments from Dr Judy Courtin, a lawyer who has worked for many years representing survivors and their families, that many religious institutions no longer rely on the Ellis defence because they do realise that in doing so they are denying natural justice and that it is a very unjust process for those survivors. She has said that she was never happy with that — the fact that they chose to no longer use the defence — because all it takes is a new archbishop or leader who holds a different view to come in and decide that using the Ellis defence is fair. That is why it is important that Victoria has enshrined these changes in the law.
As I mentioned earlier, there are many people who gave evidence to the royal commission and who have driven the changes that have been coming before Parliament now for a number of years under successive governments. One of those who I would quickly like to mention and put on record is the mayor of the Moorabool Shire Council, Paul Tatchell. Paul has spoken out and given evidence and helped drive the reform. As a schoolboy in Ballarat he was abused by what we now know was a notorious ring of paedophiles. He fought back. He was clearly very, very angry and ended up in physical altercations with the people who were put there to ultimately look after him. He has said in the past that he does not consider himself a victim, and when the church finally compensated him he gave all the money away to the homeless. He said that he felt that it was blood money and that it was money that people in the Catholic community had put on the collection plate to be used with good intention. He gave it away to the homeless because he believed they were people who needed help. He has hoped that that has done some good. Paul has been a real advocate, particularly for people around Ballarat. I am sure the member for Wendouree would be very familiar with Paul and his work. I wish to take this opportunity to formally register my thanks for all of the work that he has done over the years.
In concluding, in releasing the royal commission's final report the CEO of the royal commission, Philip Reed, said that the recommendations would provide a safer future for Australia. But he also said:
We have now completed our work. It's up to governments and institutions to take the next steps and implement the royal commission's recommendations.
I believe that we have an obligation to ensure that survivors of historical sexual abuse receive justice, not just by having their cases heard and upheld but also by providing them with legal redress. It is not good enough that we would just leave that to goodwill or to chance. On that basis, I commend the bill to the house and I wish it a speedy passage.