Controversial child sex abuse legal tactic to be struck out

The controversial legal tactic that prevents survivors of child sexual abuse from suing the Catholic church would be invalidated by sweeping legislative changes planned by the Andrews government.

The Age has obtained a confidential draft of a bill that addresses several outstanding recommendations from the state’s 2013 Betrayal of Trust inquiry. The bill is expected to be introduced into parliament this year.

If passed, the law will expose billions of dollars in assets of the Catholic church and other religious organisations to potential legal action for the first time in more than a decade.

John Ellis was abused by a priest when he was an altar boy in the 1970s.Credit: Louise Kennerley

It is designed to tackle the so-called “Ellis defence” established when the NSW Court of Appeal ruled in 2007 that the Catholic Church does not exist in a legal sense because its property assets are held inside a special trust structure that is immune to lawsuits.

The precedent is named after former altar boy John Ellis, who launched an unsuccessful legal action against the Archdiocese of Sydney for compensation after being abused by a priest in the 1970s.

Senior legal experts cannot recall a single case since the Ellis precedent was set where an abuse survivor has successfully sued the Catholic Church.

The Ellis defence put Australia alone among common law nations - including the US, Canada, Britain and Ireland - in allowing religious institutions to hold such immunity.

Labor’s draft bill shows, however, that it has balked at another key recommendation that would require greater financial transparency and accountability from religious organisations.

A six month investigation by The Age this month revealed the wealth of the Catholic church in Australia including $9 billion in Victoria, much of it tied up in property, and it detailed the lengths to which the church has gone to keep details of its wealth secret.

Survivors welcomed the government’s draft bill.

“This erases the legal fiction that the institution of the church is somehow separate from the assets of the church,” Mr Ellis told The Age. “I’ll be very happy when (the Ellis defence) is committed to history and it’s no longer a defence that can be used.”

Archdiocese of Melbourne communications director Shane Healy said it supported the new law and had been consulted by the government.

The decade-old Ellis precedent has also meant many victims seeking compensation need to participate in the Catholic church's controversial Melbourne Response and Towards Healing redress schemes as legal action has been too difficult.

The law would resolve a vexed issue within the church about the use of the Ellis defence.

A "supervisory group" comprising the top Catholic authorities in Australia had voluntarily endorsed a policy to abandon the Ellis defence in 2014 and it was affirmed by the church’s Truth, Justice and Healing Council in submissions to the royal commission.

But the church’s decentralised organisational structure means that individual bishops and religious orders are free to ignore or modify policies set by these authorities.

The Age revealed in 2015 that despite the endorsement, nine of the largest dioceses and religious orders in the country refused to provide a formal public undertaking that they would never employ the defence in current or future sex abuse lawsuits.

“There had been nothing to bind anyone in the church to that other than the court of public opinion,” Mr Ellis said.

However, the new Victorian legislation would require religious institutions to “nominate a proper defendant” that can be sued, and to keep it adequately funded or insured to cover the costs of any claim or judgement.

If they fail to voluntarily identify an entity, the property trusts operated by the church would be automatically nominated as responsible for defending any lawsuit.

The TJHC has also previously advocated for legislative change that would make the policy law.

Attorney-General Martin Pakula declined to comment on the details of the new law but said the legislation would “overcome” the Ellis defence.

Attorney-General Martin Pakula is expected to introduce the legislation this year.Credit: Angela Wylie

“Since October we have been consulting closely with victim survivor groups, the courts, the legal profession and religious bodies and we intend to introduce legislation in Parliament in the first half of this year.”

The bill obtained by The Age is in draft form and might be amended before being introduced to parliament.

The draft legislation does not address the Victorian inquiry’s recommendation that would compel religious organisations to “incorporate” like traditional businesses or charities in order to receive public funding and state-based tax exemptions.

Incorporation might require religious organisations to face new oversight by regulators such as the Australian Securities and Investments Commission (ASIC).

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