How the Australian Catholic Church Avoids Being Sued by Sexual Abuse Victims

There are currently two public inquiries which are dealing with the issue of sexual abuse by clergy in Australia. The Catholic Church is not the only institution subject to examination, but seems to have captured the lion's share of media attention related to the inquiries.

The Victorian inquiry is a state based government inquiry confined to the justification of Victoria. The Royal Commission has jurisdiction over all of Australia.

As of 20 May 2013 the Victorian Inquiry has received over 405 written submissions and conducted over 160 hearings sessions. There is a deadline for reporting of 30 September 2013. The Inquiry report will outline the findings based on the evidence heard by the Inquiry and make recommendations to the Victorian Government.

The Royal Commission commenced in 2013 and has the power to examine any and all institutions involved with children, even government institutions.

The Catholic Church in Australia does not have the same legal status as it does in other most other common law jurisdictions. Victims of sexual abuse by priests in other countries, for example, Ireland, have been able to successfully sue the Church for damages because in those countries, the Church is a legal entity. Not so here in Australia.

The Church has not been made into a corporation in Australia and consequently can hide its assets in property trusts. (If the Church were a corporation it would be close to the fifth biggest corporation in Australia.) A further complication is that the Catholic Church does not employ its clergy in a typical employment relationship again allowing them to avoid liability as an employer. Further, there would be no utility in suing Catholic Priests directly (instead of the Church) as they have taken a vow of poverty.

Andrew Morrison SC, from the Australian Lawyers Alliance said in an interview in 2012 that the Anglican Church, Uniting Church and the Salvation Army can all be sued in respect of negligence or misconduct in a way in which that the Catholic Church cannot be.

He said the Catholic Church is practically immune from being sued unlike every other church in Australia, and unlike the Catholic Church in the rest of the common law world.

Mr Morrison said that in the Maitland Diocese, which has hundreds of victims, the Church does not push the point that there is no way to sue them and has compensated victims with about $18 million dollars (collectively). Mr Morrison added, "But in Cardinal Pell's archdiocese, I know from personal experience, appearing in negotiations, they take the point in every case."

Understandably there is a current outcry among segments of Australian community for the law to be changed so that the Catholic Church in Australia can be recognised as a legal entity. Cardinal Pell, in giving evidence at the Victorian Inquiry, has expressed agreement with this course. He said that the Church would not oppose any moves to change its legal status in Australia.

Leader of the Catholic Church in Australia, George Pell, Cardinal for Australia and Arch-Bishop of the Sydney Diocese, formerly the Arch-Bishop of Melbourne, created a scheme in 1996 in Melbourne where families could approach Church lawyers and make complaints about sexual abuse by Catholic priests, teacher or brothers.

If the panel reviewing the claim was satisfied of the veracity of the claim they would then offer a capped amount of up to $50,000 in compensation. The families being compensated were required to sign a deed whereby they kept the compensation secret. This process was to discourage criminal charges being laid against the priest, teacher or brother in question.

One family, the Fosters, whose two daughters were horrendously abused by Melbourne Priest, Father Kevin O'Donnell (now dead), have made it public that they received $750,000 in compensation from the Church (prior to the cap being in place). One of their daughters committed suicide in 2008, after a life of drug and alcohol abuse because she could not cope with her ordeal. O'Donnell was a prolific abuser for approximately 50 years and Cardinal Pell has now admitted that his predecessors were aware of O'Donnell's activities and simply moved him from parish to parish after receiving complaints.

Cardinal Pell has been questioned at the Victorian Inquiry about the limits he chose to place on compensation amounts in the Melbourne Diocese.

Detective Chief Inspector Peter Fox, of the New South Wales Police Service, in making submissions to the Royal Commission, has made claims that over 400 children in the Maitland Diocese in NSW have been abused. Detective Chief Inspector Fox says that this is irrefutably the case and these are not merely allegations. He says that the Church in Maitland have been engaged in a cover up of this widespread abuse, that they have been using their influence to get police to assist them to cover up abuse. Fox was critical of senior Newcastle police.

Broken Rights, an advocacy group for victims, has said that they have been in operation for 20 years and they have had far greater numbers of complaints that what has been admitted to by the Church.

The Catholic Church released the names of 29 know child abusers in the Melbourne Diocese on May 31 2013, but withheld the names of another 30 due to legal reasons.

It is impossible to say with precision how prevalent the practice has been in the Catholic Church in Australia. The two inquiries are forcing the Church to offer more information than it ever has in the past.

Both inquiries are concerned with institutional responses and it is sincerely hoped that recommendations will be made that will assist the Church to help people to heal in a meaningful way and to prevent any further need for healing.

• Cardinal George Pell admits Church covered up cases of child sex abuse, ABC News, 27 May 2013: http://www.abc.net.au/news/2013-05-27/cardinal-george-pell-appears-at-sex-abuse-inquiry/4714964
• Calls to overhaul legal status of Catholic Church, AM, Emily Bourke, 9 November 2012: http://www.abc.net.au/am/content/2012/s3635453.htm
• Wikipedia
• Church names 29 molesters, The Australian, 31 May 2012: http://www.theaustralian.com.au/national-affairs/in-depth/church-names-29-molesters/story-fngburq5-1226654134089