Ensuring justice for all after the Royal Commission

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Opening Keynote Address, Queensland State Conference, Australian Lawyers Alliance. RACV Royal Pines Resort, Gold Coast, 17 February 2017.

I join with you in acknowledging the Yugambeh/Kombumerri peoples — traditional owners of the land on which we meet and I pay my respects to their elders past and present.

This is the third occasion on which I have been privileged to address the Australian Lawyers Alliance.

Back in 2008, I delivered the opening keynote address for the South Australian State Conference. My topic was 'A Charter of Rights for Australia? A Fence Sitter's Perspective'. In hindsight, I suspect this address provided some background for the Rudd government's decision to appoint me to chair the 2009 National Human Rights Consultation. During that consultation, I got down off the fence and joined my fellow committee members in recommending a Human Rights Act. But as we now know, it had a snowball's chance in hell of being adopted. However, we did propose a cascading set of recommendations, many of which proved even more popular with the public during our inquiry and then proved acceptable to the Rudd Government and even to the Opposition. The result is that statements of compatibility for human rights compliance are now routine when bills are presented to the Australian parliament and the Parliamentary Joint Committee on Human Rights is now a firmly established part of the national architecture for ensuring better human rights compliance. I took great satisfaction in seeing that the Turnbull Government chose that committee as the appropriate forum for reviewing section 18C of the Racial Discrimination Act. It was great to see the Australian Human Rights Commission turning up before the committee in force on 12 December 2016 to put submissions as how best to protect all human rights in this vexed area of the law. This was how we envisaged the committee developing.

When last speaking here at the Gold Coast, I was addressing the Fringe Conference of the 2016 Queensland ALP Convention when premier Annastacia Palaszczuk announced that her minority Labor Government will be introducing a Human Rights Bill to the Parliament. I sounded several warning notes including:

First warning: if you're going to be serious about a Human Rights Act, make sure that your government departments are sufficiently resourced and encouraged to produce meaningful statements of compatibility.

Second warning, especially in a unicameral legislature: make sure that your parliamentary committee on human rights has sufficient muscle and status to arrest the progress of any bill until it has been thoroughly scrutinised for human rights compliance.

Third warning: the executive and parliament will not take these tasks seriously unless the Supreme Court of Queensland has the jurisdiction to rule that a statute is incompatible with human rights. I would urge you to go one step further and provide the Supreme Court with the power to strike down future specific laws inconsistent with the Human Rights Act provided only that the parliament has not specified its intention to override the Human Rights Act.

Fourth warning: you need to provide the resources to educate your public service and public instrumentalities into the reality of a human rights culture. Otherwise the human rights rhetoric will be used to disguise ongoing human rights abuses.

Fifth warning: a Human Rights Act works mainly for the benefit of despised minorities like prisoners and asylum seekers. If you are not committed to universal human rights, spare us all the hypocrisy of a Human Rights Act designed only for people like us, a Human Rights Act which continues to alienate the discriminate against those who are 'other'.

Change in these areas is always incremental, and the perfect is the enemy of the good. I wish you well here in Queensland as you chart the course to being only the second state in the nation with a Human Rights Act. Today, I want to suggest that incremental changes to the law of negligence and a concerted political attempt to have a national redress scheme adopted is the way to go when it comes to improving the desperate lot of those citizens who were criminally and sexually abused as children by individuals working in institutions charged with the care of children.

The second occasion on which I addressed the Australian Lawyers Alliance was at your national conference in Canberra in 2013 when I was asked to address 'Church-State Issues and the Royal Commission'. At that time, the Royal Commission into Institutional Responses to Child Sexual Abuse was just commencing its first public hearings, having been announced by Prime Minister Julia Gillard in November 2012. On that occasion, I expressed a number of concerns, including that such a commission if it were to do its job would last at least five years, and this has proved to be the case. Being a federal commission, I was also concerned whether there would be the prospect of getting the buy-in needed by all governments. The jury is still out on a national redress scheme with not all state governments being on board.

On that occasion, I also intimated that the complications in the law of negligence and vicarious liability made it unlikely that there would be a legislated response to such issues no matter what the position adopted by the royal commission. Being a Catholic priest, I expressed concern about my own church hoping that the royal commission could provide some answers and some help — answers as to why the offence statistics for the Catholic Church were so horrendous, and help with setting standards to ensure the protection of children in the future and fair treatment for victims of past criminal assault. I expressed the hope that the Catholic Church like other large public institutions and governments would abide a model litigant policy and that the Church would always ensure that there was an entity available to sue and an undertaking to satisfy any judgment debts so that the so-called Ellis defence would be a thing of the past. I concluded my 2013 address with these words:

 

We should have faith that the individual commissioners and the commission's processes will accord natural justice to all, including the Catholic Church. Catholic Church leaders need to accept that the Church processes pre-1988 were grossly deficient, and that pre-1996 the Church was on a steep learning curve, and that there are still lessons to learn. The common law will be developed in Australia as it has been in Canada and the UK ensuring that the victims of child abuse in institutions will be able to claim the vicarious liability of those employers and institutional managers for the abuse perpetrated in circumstances where employees or religious personnel are standing in loco parentis, and employers will be personally liable for their failures adequately to screen, supervise and investigate staff who have ready access to children. It is high time for church employers and institutional owners to act as model litigants and to assure victims that they will have access to a nominal defendant backed by church resources for discharging direct and vicarious tortious liability for church personnel who should have done better.

 

On this my third appearance before the Australian Lawyers Alliance, you have invited me to speak on the issue of the change in community expectations around institutional abuse, the Royal Commission's recommendations and response by institutions and what this means for survivors. Of course, all this still has another year to run, so we do not yet have the Royal Commission's recommendations, let alone the response by institutions and what this means for survivors. But as a Catholic priest and a human rights lawyer, let me offer some further interim reflections on 'Ensuring Justice for All after the Royal Commission into Institutional Responses to Child Sexual Abuse'.

In September 2016, Justice McClellan, Chair of the Royal Commission into Institutional Responses to Child Sexual Abuse told the public:

 

The current breakdown of institutions in which survivors in private sessions state that they have been abused is as follows. 62 per cent of attendees reported abuse in a faith-based institution. Around 27 per cent reported abuse at government- run institutions. Abuse in Catholic institutions was reported by 40 per cent of all private session attendees, abuse in Anglican institutions by 8 per cent of attendees and abuse in Salvation Army institutions by 4 per cent of attendees.

 

I am one of those Catholics who has welcomed the assistance of the state to put our house in order. The repeated evidence before the royal commission has convinced me that my church has been in serious disrepair, putting at risk many victims who could have been spared lives of living hell if only appropriate safeguards had been in place. For the last two years, ever since Cardinal Pell's second appearance before the commission, I have been saying that we Catholics should accept that the institution until at least 1996 was structured so opaquely as to work against the interests of vulnerable children. The inner sanctum of an archdiocese in those days could be so fortified and so exclusive as to shield a competent auxiliary bishop from alleged abuse by a priest in the bishop's allocated monitoring zone. That fortification was put in place and maintained without a care for children. It was maintained without sufficient regard for the wellbeing of vulnerable victims whose interests were secondary to the name of the Church and the protection of its clergy. Those of us who are members of the Catholic Church must accept the blame, committing ourselves to transparency and accountability in the Church so that this sort of thing can never happen again. We, and not just the deceased bishops who occupied the inner sanctum, must accept responsibility for the harm suffered by those who would not have suffered but for the existence of such a fortified, exclusive inner sanctum. We can do this, and should do this, even while acknowledging the exhaustive work done by our leaders who have worked to clean up the unholy mess since 1996, making the Church much safer for children. Whatever the High Court ultimately rules about abuse occurring after 1996, we need to wear the rap for everything that went on before 1996 when the procedures in place were hazy, porous and totally inadequate.

The commission's forensic scrutiny of past actions of church officials in no way constitutes an interference with the freedom of religion. Its spotlight is to be welcomed, provided only that it is shone on a truly representative sample of all institutions which have been found wanting and provided the same light filter is applied to all institutions. In April 2016, the Royal Commission into Institutional Responses to Child Sexual Abuse published its Case Study 26 on the Neerkol Orphanage in Rockhampton. The Commission found that the response by the bishop and by the Sisters of Mercy to victims making complaints prior to 1996 was often inadequate and lacking in compassion. It also made a damning finding that the bishop was dishonest in a letter he sent to the diocese.

I do have a problem with the commission making findings on issues like the want of compassion when those findings are made only against a Church. When it reported on the Ellis Case, I said the royal commission (being appointed by the state rather than the church) had no business finding that Cardinal Pell 'did not act fairly from a Christian point of view'. I thought they should simply have found that the Cardinal did not act fairly. Similarly I wonder about the competence, utility and power of a royal commission to make findings on the lack of compassion of religious sisters while making no findings whatever on the callous disregard shown by politicians and public servants in relation to the very same issues at the very same time. Sure, the Christian churches espouse compassion as a Christian virtue, but I don't see that it is something usefully to be assessed or mandated by a royal commission. Would the commission make findings that other institutions (like Swimming Australia or the State Department of Child Welfare) did not act compassionately? Suffice to say, they have not, and quite appropriately.

The word 'compassion' or 'compassionate' appears 21 times in the Neerkol case study report. I have no problem with church people or other individuals adversely judging church leaders for a lack of compassion. There may even be a case for politicians doing it, and then arguing the toss on whether they are more compassionate than the people they are criticising. But I don't think it's the job of a royal commission. If it is the job of the royal commission, why do they stop at compassion? Why not also offer judgments about whether the responses are loving, merciful and self-sacrificing? I think by over-reaching itself in this way, the commission actually risks blunting its findings about the adequacy of responses, including compliance with protocols and sensitivity to the needs of victims. The issue is not whether church leaders measured up to the ideals of the Christian virtue of compassion but whether they measured up to the standards properly expected by the Australian community, regardless of people's religious commitments and views. You would hope that church leaders would do more to assist victims than merely to comply with community standards. To date, the commission has unearthed countless instances where the church leaders have not even complied with those community standards. But I am uneasy about a royal commission making assessments about virtue which go beyond the laws and protocols which might be set down for all institutions and for all individuals. Make no mistake. I am all for compassion. But I don't think it's the domain of a royal commission. Whatever the shortcomings of the Sisters of Mercy in the Neerkol case, their conduct was exemplary when compared with the state officials who simply decided in the first instance to invoke the Statute of Limitations. But there were no adverse findings against the public servants for their want of compassion.

I sound this note of caution. By all means, set universal standards of practice expected of all institutions dealing with children and assess institutions for compliance with those standards. But no good will be served by a royal commission auspiced by the state telling a Church how it judges or complies with its theological doctrines, distinctive moral teachings, and no good will be served by singling out a Church for adverse assessment of moral virtue while remaining silent on the moral vice of all other participants including public servants..

The Commission is preparing for the so-called 'Catholic wrap up'. The Commission's Issue Paper 11 as a prelude to the Catholic Church Final Hearing invites submissions on several issues including:

 

To what extent have any of the following issues contributed to the occurrence of child sexual abuse in Catholic institutions or affected the institutional response to this abuse? The Royal Commission has identified these issues through case studies, submissions, private sessions, and a review of literature regarding child sexual abuse in Catholic institutions.

 

They list 12 issues, the first of which is: 'Catholic theology and doctrine insofar as it is relevant to the institutional response to child sexual abuse'.

Now some of those who have made submissions have understandably taken the opportunity to ride their favourite theological and doctrinal hobby horses. Not only is Catholic theology and doctrine beyond the competence of individual commissioners; it is beyond their jurisdiction, precisely because we are a nation under a Constitution which protects freedom of religion and we are a fairly secular pluralistic society which accords a zone of freedom to religious institutions and people exercising their religious faith. Of course, the commissioners have not only the right but also the duty to report in light of the evidence on how all institutions, including the Catholic Church, might comply with appropriate standards for the protection of children. Should the Church, like any other institution, not find itself able or wanting to comply with appropriate standards, the State would be entitled to limit the Church's role in relation to children. But the Commission cannot trespass into the realm of recommending changes to Catholic theology and doctrine, even if some Catholics and others take the opportunity to put submissions which challenge that theology and doctrine.

I happen to be one Catholic priest who has much sympathy with many of the suggested theological and doctrinal reforms suggested by some of those who have made submissions. In fact, some of them are friends of mine. I too would like to see women priests in my church. I don't see the contemporary need for an enforced rule of celibacy for diocesan priests. I think the power of individual bishops is too great. While even a pope like the present Pope Francis is unlikely to move on all those fronts, he has re-focused the Church on changing for the sake of evangelisation rather than maintaining the status quo in the vain hope of self-preservation. In his 2013 Apostolic Exhortation Evangelii Gaudium, he speaks of 'an ecclesial renewal which cannot be deferred' and describes his dream of 'a missionary impulse capable of transforming everything, so that the Church's customs, ways of doing things, times and schedules, language and structures can be suitably channeled for the evangelisation of today's world rather than for her self-preservation.' I am one Catholic who is in no doubt that the pastoral, theological and cultural tectonic plates under the Catholic Church are rumbling and shifting deeply. But those movements should not tempt the Australian royal commission to overreach itself because if it does it will simply put at risk the invaluable work it is doing in setting the parameters for appropriate standards of child protection making all institutions (including the Catholic Church) safe places for children in Australia.

Regardless of what submissions are forthcoming seeking a root and branch reform of the Catholic Church's structure, theology and doctrine, the commission will need to be very careful about taking on the mantle of royal commission infallibility and lecturing to the Church about its structure, theology and doctrine in light of contemporary secular Australian notions of truth and right. For example, Professor Patrick Parkinson who did so much to assist the Church with the development of the Towards Healing protocol rightly claims in his submission to the royal commission:

 

The governance system of the Church is, rather literally, medieval, notwithstanding reforms introduced by Vatican II. Its character still reflects the way in which the various kingdoms and other state entities of medieval Europe were governed before the emergence of modern democratic institutions. The Pope was once the absolute ruler of Italian territories, known as the Papal States. That territorial governance now extends only to the confines of Vatican City, in which the Pope has absolute executive, legislative and judicial authority. The model nonetheless applies beyond the walls of the Vatican. The Pope has executive, legislative and judicial authority for the Church worldwide supported by the institutions of the Vatican. He may share that authority with the Bishops collectively, to some extent, but that is more accurate as a statement of the Church's theological self-understanding, than it is of its actual governance structure. Neither the doctrine of the separation of powers nor the idea of democracy have had much purchase, even after Vatican II.

 

Parkinson concludes:

 

Even if all Bishops and Religious Leaders at a given date signed up to offer commitments to the Australian people, these would not, and could not, bind their successors. That is the governance problem at the heart of Catholicism.

 

Compliance standards for child protection are well within the competence of a state auspiced royal commission in Australia, and those standards should be enforceable against any institution no matter what its system of governance. Prescribing a new system of governance for the Catholic Church is well beyond the competence of such a commission. We have a constitutional guarantee against an established church and thus it is not for the state to prescribe the structure nor to qualify or question the theological teachings of the Church. The commission must highlight failures in the Church to protect children and recommend standards of compliance for protection in accordance with Australian community values. But the church must be left to its own resources to see how it can best comply consistent with its own theology and doctrine. If the commission sticks to its last, everyone will be helped: victims and church administrators, the state and the church. In this 'Catholic wrap up', I wish the commission well. If it does its job well, our parliaments should be favourable to legislating standards and a means for scrutinising compliance which apply without fear or favour to all institutions, including the Catholic Church.

Thankfully it is now well accepted by my Church that anyone who is charged with a criminal offence of child sexual abuse should be stood aside from ministry or work involving children until the charge has been determined. Where no charge has been laid but where the church has received a complaint from a victim or a credible third party or notification of police investigations, the relevant church personnel will be stood aside from any work involving contact with children provided an initial church inquiry indicates that it is not a case of mistaken identity and the facts as they are alleged could support an allegation of abuse. I was delighted to see that the Pontifical Commission for the Protection of Minors has issued a template for all national churches stating:

 

There should be a clear statement about compliance with the requirements of civil authorities and Church authorities. Where episcopal conferences include more than one country or a country with a federal structure — it should be clearly stated that the Church will comply with the relevant authority. This should include any civil requirements on mandatory reporting.
There should be a clear statement about referral of criminal behaviour to the police or relevant authority.

 

It is also heartening that Pope Francis on the Feast of the Holy Innocents, 28 December 2016 said:

 

I would like us to renew our complete commitment to ensuring that these atrocities will no longer take place in our midst. Let us find the courage needed to take all necessary measures and to protect in every way the lives of our children, so that such crimes may never be repeated. In this area, let us adhere, clearly and faithfully, to 'zero tolerance'.

 

Sadly, my church is yet to accept that a church leader who is charged with a criminal offence of failing to report or adequately investigate an allegation of child sexual abuse should stand aside from their position of leadership in the Church until the matter is resolved. We have one archbishop who is charged with an offence of failing to report another priest's offence against a child. Though the archbishop has excused himself from any role in professional standards matters in his Archdiocese, and from the professional standards work of the Australian Catholic Bishops Conference (ACBC), he continues to perform all other aspects of his role as Archbishop and as a member of the Permanent Committee of the ACBC.

In the archbishop's defence, I acknowledge that this has been a long drawn out matter and the interpretation of the law is a contested issue because the particular statutory provision, s.316 Crimes Act (NSW), is largely untested and has not been considered by the High Court nor the relevant state Court of Appeal. Furthermore, the charge of March 2015 is posited on the claim that the Archbishop failed to hand on information between 2004 and 2006, more than 33 years after an alleged assault on a child by a priest had occurred, and therefore more than two decades after the victim and his confidants as adults could have brought the matter to the attention of the police. The offending priest had already come to the attention of police as a child sex offender. He had been convicted in 2004 of the past criminal assault on another child victim and had died in 2006.

My own view, based only on the publicly available information, is that the charge is unwarranted and unlikely to be proved. The DPP has clearly viewed this case as a test case on the limits of s.316. You would have thought they could have found a more compelling set of facts for a test case alleging that the person charged had failed recently to report fresh compelling evidence to police when that evidence could not have been provided by any other credible adult witness. But that's not the point. There is a criminal charge still standing, and presumably the NSW Director of Public Prosecutions is not acting out of some animus to the Catholic Church and its hierarchy, even despite the public disquiet about the Church and its historic handling of these matters, especially in places like Maitland-Newcastle where the criminal priest and the accused bishop were based back in 1976 when the bishop as a newly ordained priest first heard an allegation against the criminal priest and handed on the information to his now deceased parish priest.

When charged, the archbishop initially stood aside from his duties as archbishop but after nine months decided to return to office while still standing aside from, and undertaking not to involve himself with, matters in his Archdiocese or on the ACBC concerning professional standards. While the charge remains unresolved, the archbishop remains a member of the ACBC Permanent Committee. This committee is the key instrument of governance for the Catholic Church nationally during those times when the ACBC is not meeting in conference. There is no other major organisation in Australia caring for children which would contemplate electing to its board or leaving in place ex officio (even on restricted duties) a person who stands charged with a criminal offence relating to the failure adequately to report child sexual abuse.

I was accurately quoted in The Australian ('Catholic Row over probe into confession, 30 November 2016) saying, 'If a law is introduced to say that a priest should reveal a confession, I'm one of those priests who will disobey the law.' Being also a lawyer, let me explain.

Understandably the Royal Commission is wanting to look into any distinctively Catholic practice or structure to assess whether it has contributed to the likelihood of increased child sexual abuse — either because it compounds the likelihood of a person offending, or more probably, because it compounds the likelihood of those in authority not taking appropriate corrective action when abuse is first reported or suspected.

One distinctively Catholic practice is personal confession in which an individual confesses to God their sins and seeks forgiveness in the presence of and at the hands of a priest. Some groups and individuals are proposing to the royal commission that the seal of the confessional no longer be inviolable. They point to legislative changes in Ireland which require a priest to report to police what he learns in the confessional if the confessed sin is child sexual abuse.

Catholic priests are bound by the Church's Code of Canon Law which provides:

 

The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.
A confessor is prohibited completely from using knowledge acquired from confession to the detriment of the penitent even when any danger of revelation is excluded.

 

The inviolability of the confessional was last comprehensively considered in 2012 by the Protecting Victoria's Vulnerable Children Inquiry which was chaired by retired Victorian Supreme Court Judge Philip Cummins. That commission recommended, 'An exemption for information received during the rite of confession should be made.' The report noted: 'a statutory exemption to the reporting duty should be provided in relation to information received during a religious confession. In Victoria, information revealed during religious confessions is considered privileged when admitting evidence before courts.'

Then Victorian Premier Ted Baillieu ruled out changes to the seal of the confessional. He said members of the Inquiry 'all concluded that the sanctity of the confessional should remain. I think that's a powerful argument.' I am convinced that the seal of the confessional is a red herring when it comes to protecting vulnerable children.

I have been a priest for 31 years. I help out in a Canberra parish where mass attendance is still very high. But I can count on the fingers of two hands the number of parishioners who present for confession on any Saturday evening before mass. In 31 years, I have not had one single person confess to pedophilia whether in an institution or within their own family. Pedophiles tend to be secretive and manipulative. They don't come to confession. I am not aware of the royal commission having heard evidence of pedophiles regularly confessing their egregious sins and being left undetected. If the law were changed to mandate reporting of pedophilia confessed to a priest in the sacrament, the only effect would be to ensure that no pedophile every approached the confessional. The suggested legal change would be counter-productive.

If a pedophile were to present at confession telling me that he or she had assaulted a child, I would stipulate as part of the penance that the person report the matter to police and take some steps to receive treatment and counselling. If they were unwilling to do so, I would deny absolution. But I would not breach the seal of the confessional.

Often when hearing a confession, a priest will have no way of identifying a victim. He will have no idea of the date of any offence; it may have occurred decades ago. He will have no idea of where any offence was committed; it might have been Parramatta, but then again it might have been Paris or Parabadoo.

If the only information available were from the confessional, chances are that it will be information which is useless to police or child protection officers. If confessional reporting were mandatory, chances are that the perpetrator would simply not come to confession. So even in brute consequentialist terms, there is no point in making confession reportable to the police. If it were mandatory for everyone to report, pedophiles and perpetrators of domestic violence would be left with no one to speak to.

Most, if not all priests, would prefer to go to jail than disclose material from confession which could 'betray in any way a penitent in words or in any manner and for any reason' even if the penitent be a child molester, a murderer or a terrorist. And that's not because we don't feel compassion for children or other innocent persons. We respect the sacredness of the sacrament where the penitent and God relate in the presence of the priest.

Kids will be better protected in future if we put to one side the furphy about the seal of the confessional and address the real questions about uniform mandatory reporting and clear guidelines for reporting any suspected serious crime.

Many of those arguing for a breach of the seal of the confessional equate the role of the priest in confession with the role of the health care professional or counsellor. Though a priest outside confession may often play the role of counsellor, and while there may occasionally be some counselling offered in confession, the priest in confession assesses the penitent's contrition, hears the penitent's confession, and gives absolution and a penance. But for the penitent's belief that he or she is confessing sin to God in the presence of a priest, the priest would not be hearing the matters confessed.

If the seal of confession were no longer inviolable, I could tell all prospective penitents that this was the case, abandoning my commitment under canon law not to breach the seal of the confessional. Or else I could decline to hear confessions in Australia. Or I could maintain my solemn commitment to maintain the seal and conscientiously refuse to comply with any law instructing me to breach the seal. I would do the latter, and if asked, I would counsel fellow priests to do the same. I view the seal of the confessional as a privilege similar to legal professional privilege. You will recall that in Daniels Corp v ACCC the majority of the High Court of Australia said:

 

It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.

 

Statements made by a penitent to a priest in the sacrament of confession made for the dominant purpose of receiving absolution should remain privileged. Just as lawyers maintain secrecy about matters disclosed to them by their clients when seeking legal advice (and arguably, just as journalists maintain secrecy of their sources when they assure those sources absolute confidentiality), priests can and should maintain the secrecy and confidentiality of any sin confessed to them in the sacrament of confession. Of course, were a child or any other person to disclose wrongdoing by a third party, that would be an altogether different matter. Much of the media commentary has suggested that the seal of the confessional covers anything said by anybody in confession. It does nothing of the sort.

In Ireland, the law was changed in 2012 replicating and building upon s.316 of the Crimes Act (NSW). Section 2 of the Criminal Justice (Withholding of Information on Offences Against Children and Vulnerable Persons) Act 2012 provides:

 

1. Subject to this section, a person shall be guilty of an offence if:
(a) he or she knows or believes that an offence, that is a Schedule 1 offence, has been committed by another person against a child, and
(b) he or she has information which he or she knows or believes might be of material assistance in securing the apprehension, prosecution or conviction of that other person for that offence, and fails without reasonable excuse to disclose that information as soon as it is practicable to do so to a member of the Garda Síochána.

 

It is a defence to any charge if the child aged over 14 years 'made known his or her view (provided that he or she was capable of forming a view on the matter) that the commission of that offence, or information relating to it, should not be disclosed to the Garda Síochána.'

Also it should be noted that the section 'is without prejudice to any right or privilege that may arise in any criminal proceedings by virtue of any rule of law or other enactment entitling a person to refuse to disclose information'. Now, no one quite knows what that means when it comes to the seal of the confessional and any privilege which might be invoked by a priest. Advice provided to the Australian Catholic Church's National Centre for Professional Standards (NCPS) by the National Board for Safeguarding Children in the Catholic Church in Ireland in late 2016 states:

 

[W]e have clearly stated in our guidance that the seal of confession is sacrosanct. When we shared it with our government colleagues they said they couldn't support that position but have not taken any action in relation to it. Time will tell if they do — there is no protection in law for a priest who does not disclose information received within the confessional ... Mandatory reporting is only at present in Northern Ireland but there is a move to make it mandatory in the Republic of Ireland — but not yet.

 

A priest should never be required to disclose a penitent's sins heard under the seal of the confessional. The state has the same right to regulate matters for a priest outside the confessional as to regulate matters for all other citizens outside the confessional. Not one child will be saved by abolishing the seal of the confessional. With the seal intact, the occasional pedophile might find a listening ear to assist with the decision to turn himself in. With the seal breached by law, confession will be unavailable to careful serious offenders except at the hands of those priests who have declared that they will conscientiously refuse to comply with the law. The royal commission needs to focus on those changes which it can effect and which could make a real difference in protecting children.

Last time I addressed the ALA, we were all coming to terms with the trilogy of High Court cases relating to abuse: NSW v Lepore, Sarin v Queensland, and Rich v Queensland.. In October 2016, the High Court had cause to revisit those decisions and the developments in the UK and Canada. A few tentative conclusions might be offered so that those advocating reforms in the wake of the royal commission can back proposals which are principled and which might have greater chance of adoption by our parliaments. As I suggested last time, I think much of the work in this area is still to be done by courts rather than the royal commission and parliaments.

There is no prospect of the courts developing, or our parliaments legislating, a non-delegable duty of care to children any more extensive than the duty to take reasonable care in all the circumstances.

By 5-1, the High Court of Australia decided that the non-delegable duty to provide a safe system of work did not cover the case of a teacher's criminal act of sexual abuse of a child. As Chief Justice Gleeson put it:

 

In cases where the care of children, or other vulnerable people, is involved, it is difficult to see what kind of relationship would not give rise to a non-delegable duty of care. It is clearly not limited to the relationship between school authority and pupil. A day-care centre for children whose parents work outside the home would be another obvious example. The members or directors of the club, which provided recreational facilities for children, considered by the Supreme Court of Canada in Jacobi v Griffiths, presumably owed a non-delegable duty of care to the children who were sexually assaulted by the club's employee. It would be wrong to assume that the persons or entities potentially subject to this form of tortious liability have "deep pockets", or could obtain, at reasonable rates, insurance cover to indemnify them in respect of the consequences of criminal acts of their employees or independent contractors. Whether the organization providing care is public or private, commercial or charitable, large or small, religious or secular, well-funded or mendicant, its potential no-fault tortious liability will be extensive. Furthermore, if deterrence of criminal behaviour is regarded as a reason for imposing tortious liability upon innocent parties, three things need to be remembered. First, the problem only arises where there has been no fault, and therefore no failure to exercise reasonable care to prevent foreseeable criminal behaviour on the part of the employee. Secondly, it is primarily the function of the criminal law, and the criminal justice system, to deal with matters of crime and punishment. (Most Australian jurisdictions also have statutory schemes for compensating victims of crime.) Thirdly, by hypothesis, the sanctions provided by the criminal law have failed to deter the employee who has committed the crime.

 

Basic justice demands that the same law of liability apply to employers whether they be state, private or religious.

The 2016 case related to sexual abuse suffered by a boy at the hands of a housemaster named Bain at Prince Alfred College (PAC) in Adelaide. The respondent started suffering acutely from the abuse later in his adult life. Meanwhile he had sent his own son to PAC and there were events during school visits which triggered flashbacks. By the 1980s he was suffering acute anxiety and drinking heavily. In the 1990's he joined AA. In 1997 he heard Bain on the radio and this caused a severe downturn in his condition. He sought legal advice. As the High Court noted: 'The respondent decided not to sue the PAC at that time. An important factor in this decision was that he considered it had done the right thing by dismissing Bain.' Acting on legal advice he accepted the school's offer to pay his legal and medical expenses and to forego school fees for his son. He then took legal action against Bain which he settled in 1999 for $15,000. By 2003, he was in a very bad way. So he approached the school again for assistance. In 2005, he asked the school for $1 million and the refund of his own school fees. The school did not accede to the request. So he instituted proceedings. The High Court noted:

 

By the time the proceedings were commenced in December 2008 a number of persons who may have been witnesses in the proceedings had died. They included the persons who had been the headmaster, the senior master and the school chaplain of the PAC in 1962. The senior housemaster was ill and unable to give evidence. The psychologist whom the respondent first consulted had destroyed his notes.

 

In Prince Alfred College v ADC, French CJ, Kiefel, Bell, Keane and Nettle JJ noted that in NSW v Lepore: 'The Court held, by a majority, that a school's non-delegable duty of care with respect to a pupil did not extend to the intentional criminal conduct of a teacher, in the nature of sexual abuse.' They showed no appetite for revisiting this question. They seemed to subsume any issue of non-delegable duty into the general inquiry about whether there was a breach of the duty to take reasonable care in all the circumstances. They said:

 

Even the question of whether a non-delegable duty of care was owed by the PAC to the respondent, which was approached by the Full Court largely as a question of law, requires a finding that there be a breach of the PAC's duty to take reasonable care in all the circumstances. That requires in the first place that the nature and content of the particular duty and responsibility owed to the respondent be identified.

 

The respondents had submitted that Lepore was wrongly decided on the question of non-delegable duty but the High Court gave that submission short shrift:

 

[S]ubmissions for the respondent do not address the matters required to invoke the authority of this Court to reconsider a previous decision. They are addressed to arguments which were rejected by the majority in New South Wales v Lepore. The only issue necessary to be considered with respect to liability is therefore vicarious liability.

 

When it comes to vicarious liability, I also think there is no prospect of parliaments buying into this complex area of law. It will be left to the High Court to develop the scope of vicarious liability of an employer for an employee's criminal sexual abuse of a child on a case by case basis. Justices Gageler and Gordon warned:

 

That general approach does not adopt or endorse the generally applicable "tests" for vicarious liability for intentional wrongdoing developed in the United Kingdom or Canada (or the policy underlying those tests), although it does draw heavily on various factors identified in cases involving child sexual abuse in those jurisdictions.
The 'relevant approach' described in the other reasons is necessarily general. It does not and cannot prescribe an absolute rule. Applications of the approach must and will develop case by case. Some plaintiffs will win. Some plaintiffs will lose. The criteria that will mark those cases in which an employer is liable or where there is no liability must and will develop in accordance with ordinary common law methods. The Court cannot and does not mark out the exact boundaries of any principle of vicarious liability in this case.

 

The 'relevant approach' enunciated by the majority seems to eschew any notion of simply asking what is fair and just. They say:

 

Of course, if a general principle favours the imposition of liability it may be said to provide some level of certainty. And, if a general principle provides that liability is to depend upon a primary judge's assessment of what is fair and just, the determination of liability may be rendered easier, even predictable. But principles of that kind depend upon policy choices and the allocation of risk, which are matters upon which minds may differ. They do not reflect the current state of the law in Australia and the balance sought to be achieved by it in the imposition of vicarious liability.

 

In particular, our judges have been dismissive of the Canadian 'risk allocation' approach noting:

 

However, the risk-allocation aspect of the theory is based largely on considerations of policy, in particular that an employer should be liable for a risk that its business enterprise has created or enhanced. Such policy considerations have found no real support in Australia or the United Kingdom.

 

They have also been wary about the UK approach which asks bluntly what is fair and just. Our judges have noted:

 

As was said in Sullivan v Moody, albeit in a different context, '[t]he question as to what is fair, and just and reasonable is capable of being misunderstood as an invitation to formulate policy rather than to search for principle'.

 

Revisiting Lepore, the majority said:

 

It can, however, be observed that the Canadian approach to the 'enterprise risk theory' did not attract any significant support in New South Wales v Lepore, and the recent test favoured by the United Kingdom courts also did not attract unqualified support from members of the Court.

 

Rather than agitating for legislative law reform on the issue of vicarious liability, I would suggest that the ALA is well positioned to consider test cases which hone in on the key proposition put by the majority as the relevant approach:

 

Consequently, in cases of this kind, the relevant approach is to consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed vis-à-vis the victim. In determining whether the apparent performance of such a role may be said to give the "occasion" for the wrongful act, particular features may be taken into account. They include authority, power, trust, control and the ability to achieve intimacy with the victim. The latter feature may be especially important. Where, in such circumstances, the employee takes advantage of his or her position with respect to the victim, that may suffice to determine that the wrongful act should be regarded as committed in the course or scope of employment and as such render the employer vicariously liable.

 

There is no way that the Australian courts are going to extend vicarious liability to acts committed by an employee simply because employment with the employer provided the opportunity for criminal behaviour.

It is not every case which warrants a hearing regardless of the effluxion of time and of the past dealings between the parties. In her letter of invitation to me, your president Michelle James wrote:

 

[W]e have lobbied for the abolition of limitation periods in respect of child abuse that occurred in institutional settings. We are pleased with the recent developments on this issue in several states and the ACT and the plenary sessions at our Conference will focus on this.

 

The PAC case indicates that there are some circumstances in which the maintenance of a limitation period is warranted even when the case relates to damages incurred as the result of criminal sexual abuse of a child. As Gageler and Gordon JJ noted:

 

It was not in dispute that the respondent was abused by Bain and that Bain was convicted in 2007 of two counts of indecent assault against the respondent and of other offences against two other boarders at the College. As the other reasons for judgment explain, in September 1997, the respondent made a deliberate decision to bring proceedings against Bain, but not against the College, and instead to enter an arrangement with the College that was to resolve the issues between them. But after a delay of some 11 years, the respondent changed his mind and instituted this action against the College.
The respondent's deliberate decisions not to bring proceedings earlier against the College, and then, after a lengthy delay, to institute this proceeding against the College, demonstrate that the Full Court of the Supreme Court of South Australia was wrong to extend the time under s 48(3) of the Limitation Act.

 

I suggest that the way forward is for political pressure to be brought to bear for a universal national redress scheme with all governments and all major institutions involved with care of children at the table. I know that some plaintiff lawyers have expressed outrage at the idea of a national redress scheme with a cap of $150,000. But as John Ellis has said, 'I see it as something that creates additional rights for people and doesn't in any way impinge on whatever rights they already have to bring proceedings through the courts.' Political campaigns to urge parliaments to legislate a non-delegable duty of care, to legislate new parameters for vicarious liability according to what is thought to be fair and just, or to abolish all limitation periods will be fruitless. The ALA should be strategic in its planned litigation seeking incrementally to expand the limits of vicarious liability in those instances where criminal employees exercise 'authority, power, trust, control and the ability to achieve intimacy with the victim' in such a measure as to warrant a finding that their employer would be liable for any damage they cause to a child in an institution which is the employer of the wrongdoer.

It is also necessary for the royal commission to set down workable criteria for all such institutions for the screening, training and supervision of employees. A failure to comply with such criteria would be evidence of negligence by those institutions. Institutions like the Catholic Church should publish their model litigant policies and their procedures for dealing with complaints outside court processes. Once the royal commission has reported, it will be necessary for institutions like churches to be held to account, revising their procedures consistent with the recommendations made by the commission and adopted by the sponsoring governments.

Let none of us forget that royal commissions are functus officio once they report. It's then up to governments and even more it's up to interested citizens to hold the governments to account. We all remember the solemn pledges at the time of the Royal Commission into Aboriginal Deaths in Custody which pledged prison as a last resort for Indigenous Australians. Yes, the incidence of deaths in custody has declined because the recommendations of that commission have been implemented. But the incarceration rate of Indigenous Australians has increased rather than decreased. Reflecting on the 25th anniversary of that commission, Pat Dodson who had been a commissioner said, 'For the vast bulk of our people the legal system is not a trusted instrument of justice; it is a feared and despised processing plant that propels the most vulnerable and disabled of our people towards a broken bleak future.'

Once Justice McClellan presents his final report, the real work will begin to ensure justice for all, especially for those who as children have suffered the enormity of physical violation and abuse of trust at the hands of adults entrusted with their care under the mantle of organisations professing their best interests. Thank you for the opportunity to share my views with you. I wish you well in your deliberations as to how you as litigation lawyers can best serve your clients who include some of the most wronged citizens in our nation.

 


Frank BrennanFrank Brennan SJ is the CEO of Catholic Social Services Australia. The Royal Commission invited him to participate in a panel discussion in February because he has 'published in the area of the Sacrament of Reconciliation'. The panel discussed: 'To what extent has the operation of the Sacrament of Reconciliation contributed to the occurrence of child sexual abuse in Catholic institutions or affected the institutional response to this abuse?'

Topic tags: Frank Brennan, seal of confession, Royal Commission, clergy sexual abuse


 

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You can listen to my presentation at https://soundcloud.com/frank-brennan-6/ala-2017
Frank Brennan SJ | 17 February 2017


It was pleasing to see this statement by Justice McClellan to the bishops at the close of their testimony of 21 February: 'Before you go, can I thank each of you for joining with us today. Some of you have travelled a great distance. The work that we have done over, now, four years, of course, has concerned or is concerned with a great many institutions throughout Australia, not just the Catholic Church, but I'm sure it's apparent to all of you, and others, that the numbers, if nothing else, tell us that there is a story that needed to be looked at with the Church, with your Church, in detail, and that not only is it necessary for us to understand, but it's more important, perhaps, that you understand what has been taking place and come, with all of your colleagues, to determine the way forward. So thank you again. You are excused.'
Frank Brennan SJ | 22 February 2017


An interesting exchange between Commissioner Fitzgerald and Archbishop Coleridge on 24 February at pp 26165-6: COMMISSIONER FITZGERALD: Would there be a general view amongst the bishops, if you have a view, that it is appropriate for the Royal Commission to in fact make recommendations in relation to the canon law, and, in so doing, are there any concerns within the bishops that that somehow or another infringes on state/Church divisions? ARCHBISHOP COLERIDGE: It's a very telling question, and I would say in reply that it would be very appropriate for the Royal Commission to make whatever recommendation they judge to be in the best interests of children and therefore the best interests of the Church. So I personally, and I think I speak for the other bishops, would welcome any suggestions or recommendations that the Royal Commission would present. There is already a process under way of revision of what they call Book VI of the Code of Canon Law, which specifically treats the matters that are before this Royal Commission. If the Royal Commission, with its vast experience through these four years and its immense competence, not just the Commissioners but the staff that gather around you, could help in that process of revision - see, the canons are always lagging behind experience. Even though this code was only formulated in 1983 seeking to gather up the vision of the Second Vatican Council, 1983 was a long time ago. So the canons are always catching up. Now, I would look to the Royal Commission, even, to provide us with some of the insight and impetus that will be required to allow the canons - or to make the canons catch up with what is vastly changed experience in this field. So I don't see it as in any way intruding upon sacred ground which isn't proper to the Royal Commission. Now, the Royal Commission may make a recommendation which doesn't lead to the desired change, but that doesn't mean to say at all that the Royal Commission shouldn't or mustn't make the recommendation. I would think on the contrary. COMMISSIONER FITZGERALD: Thank you.
Frank Brennan SJ | 24 February 2017


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