Church-state issues and the Royal Commission

Address to the Australian Lawyers Alliance Conference, Rydges Lakeside, Canberra, 26 October 2013

Putting the case for state intervention in church affairs

On 31 October 2012, I was privileged to deliver the 2012 Law and Justice Oration at Parliament House in Sydney. I said:

You will all know that these are not easy times for Catholic priests; and they have never been easy times for those children in our society who have been sexually abused, a disproportionate number of them by Catholic priests. When in Sydney in July 2008, Pope Benedict XVI apologised in these words: 'I…acknowledge the shame which we have all felt as a result of the sexual abuse of minors by some clergy and religious in this country. Indeed, I am deeply sorry for the pain and suffering the victims have endured and I assure them that, as their pastor, I too share in their suffering. These misdeeds, which constitute so grave a betrayal of trust, deserve unequivocal condemnation.' I adopt his apology without demurrer.

Whatever our religion or none, whatever our love or loathing of the Catholic Church, what is to be done in the name of law and justice? Clearly, the Church itself cannot be left alone to get its house in order. That would be a wrongful invocation of freedom of religion in a pluralist, democratic society. The State may have a role to play. As our elected politicians prudentially decide how best to proceed, they need assistance from lawyers committed to justice, not lawyers acting primarily to protect the Church or to condemn it. The Catholic Church in Victoria has admitted that 'in the past 16 years, about 620 cases of criminal child abuse have been upheld by the Church in Victoria'. In the Archdiocese of Melbourne alone, 301 complaints have been upheld since 1996.

Professor Patrick Parkinson, probably the nation's most experienced academic lawyer in the field, having conducted the 2009 Study of Reported Child Sexual Abuse in the Anglican Church and having advised the Catholic Church on its Towards Healing protocol, informed the Victorian Parliament last month:

[T]here were 44 allegations of abuse [since 1990] within the Anglican diocese of Melbourne which fitted within the criteria of our study.

Archbishop Hart [the Catholic Archbishop of Melbourne] referred to 60 priests…of the archdiocese of Melbourne, who are substantiated offenders against children. We found 78 across the country against whom allegations were made in the Anglican Church. It gives you a sense of the scale of the problem.

If the Anglican and Catholic figures are statistically comparable, we all need to know the explanation for the discrepancy. If there be particular problems in the Catholic Church, they need to be identified for good of all citizens, not just Catholics. Professor Parkinson says that 'we have come a long way…..The reality is that we have come light years on from 1997. Most churches — I think all churches — have radically changed their attitudes to all of this.' Speaking of those things which helped to influence the change, he told the Victorian parliamentary committee that 'the Wood Royal Commission in New South Wales was very important, and generally an awareness that this was a problem not just for the Catholic Church.' In 1997, the Wood Royal Commission noted: 'While a good deal of evidence and assistance was provided by the Catholic Church, it is not the case that the Commission finds particular fault with that Church or its constituent bodies. Indeed, its response to the matters disclosed by the Royal Commission is held up as a model for other Churches and religious organisations to follow'.

Recently there have been unresolved questions raised about Catholic Church processes by the ABC 4 Corners Program. I am one lawyer and dedicated Catholic who is mightily relieved that Tony Whitlam QC has been appointed to inquire into the Church processes in the Armidale case which featured on that program. Meanwhile in Victoria, the parliamentary inquiry is obviously strapped for time and resources, but it is a relief to know that Frank Vincent QC is assisting that inquiry. These two eminent and reputable, retired judges will hopefully assist all persons including victims and church members wanting transparency and better processes. Presumably if they think more State resources are needed to accelerate prosecutions for past criminal offences or to enhance procedures for contemporary detection, avoidance and deterrence of child sexual abuse, they will say so, and they will be heard loud and clear by Church and State authorities.

At the moment, there is little more that any Catholic priest can credibly say on this issue in the public square. I make this plea to all lawyers having a commitment to justice. While putting aside any religious prejudice, please contribute fearlessly to the debate on how religious and other organisations increasingly charged by the State with responsibility for the oversight of the care and nurture of our most vulnerable children can perform their tasks freed from the abuse of the past and with State protection of all children assured; and please advise how we can better deal with complaints which surface decades later, whether or not the now adult victims want to go to the police.

Announcement of Royal Commission

Then on 12 November 2012, Julia Gillard announced a royal commission:

Australians know, from the revelations that they've read in recent weeks that too many children have suffered child abuse but have also seen other adults let them down. They've not only had their trust betrayed by the abuser but other adults who could have acted to assist them have failed to do so.

Some people may want there to be the maximum public airing of what happened to them - that might be biggest healing that they could have. For others, I imagine that standing somewhere public and telling their story would be their version of hell. This will have to be dealt with sensitively and be a job for the commission to work through.

Ms Gillard also said she had spoken to Cardinal George Pell: 'This is a royal commission that would be looking across religious organisations, as well as state-based care and into the not-for-profit sector. So this is not a royal commission targeted at any one church.' Given that Cardinal Pell was the only church leader to whom she spoke, there can be no doubt but that one particular church is in the sights of the Royal Commission.

Opposition Leader Tony Abbott said, 'Any investigation should not be limited to the examination of any one institution. It must include all organisations, government and non-government, where there is evidence of sexual abuse.'

Cardinal Pell had said he believed his church was being unfairly targeted due to 'anti-Catholic prejudice'. Labor backbencher Doug Cameron said the Catholic Church should be the focus of any commission because 'that's where the major problem seems to be'.

Appearance on ABC Lateline

That evening I appeared on the ABC Lateline and was interviewed by Emma Alberici:

EMMA ALBERICI: Now you were opposed to a royal commission per se. What are your reservations?

FRANK BRENNAN: I was opposed to a national royal commission because I thought there were a number of state inquiries underway that could be useful. And my concern about a national commission - I would hope for the sake of victims nationwide that it will bear fruit.

My worry has been that a national royal commission, for example the Royal Commission into Aboriginal Deaths in Custody, which was restricted to 99 deaths over just a 10-year period, that took 3.5 years. So I think a commission of the breadth that the Prime Minister has announced, if it was to be anything more than broad brush, but if it were to have the particularity that we were looking for with state inquiries, I think it will take at least five years.

EMMA ALBERICI: So would it have been better to have been kept to just the Catholic Church?

FRANK BRENNAN: I don't know whether just to the Catholic Church or whether within the jurisdictions that were conducting these things. Let's remember within the federation that we have that most of the agencies which deal with children are under state jurisdiction. And at the moment in the three most populous state - Queensland, New South Wales and Victoria - there are inquiries presently running and they are running as a result of royal commissions that have been previously held.

So my concern is simply that at a national level a royal commission asking the feds to come and investigate the states, particularly where it's a federal Labor Government on the ropes in the lead-up to a federal election with Liberal state governments, I think there are all sorts of complications there and I would hope for the sake of the victims that things do not get too politically messy.

EMMA ALBERICI: The Prime Minister in making her announcement today said the royal commission would look at institutional responses to abuse. From what you've seen thus far, has the Church always in your view put the welfare of children first?

FRANK BRENNAN: No, it has not. And I think particularly prior to 1997 there's been abundant evidence that the Catholic Church, which is the church I know best, the interests of children were not put first and often it was the interests of the Church as an institution or of particular clerics who were spared and children were sacrificed.

EMMA ALBERICI: And is it still policy to move a priest to another diocese if he is accused of abuse or convicted and then released?

FRANK BRENNAN: As I understand since 1997 with the protocols that have been put in place, definitely not. If there have been breaches of that, then it's not only a breach of the law, it's a breach of the Church's own protocols.

EMMA ALBERICI: So is there a structure in place to determine that that definitely won't happen?

FRANK BRENNAN: There is. After the Wood Royal Commission in NSW we had a protocol set up nationally for the Catholic Church, as for other equivalent churches. It's been accepted since 1997 that every church has to have a protocol in place, as should any organisation that's dealing with children.

Definitely there have been problems that - Catholic protocol I know has been revised twice with independent legal advice, but there are still criticisms of it from victims, their families and their loved ones. There's still work to be done. The question is: how that's best to be improved.

[...]

EMMA ALBERICI: You've said before that there is a disproportionately high number of child abusers among the Catholic clergy. Why do you think that is?

FRANK BRENNAN: That I don't know. I was referring to the evidence that was given before the Victorian inquiry by Professor Patrick Parkinson. Now the thing about Parkinson is he is an independent lawyer who's done a lot of work both for the Catholic Church and for the Anglican Church and he drew a comparison of the figures between the Catholics and the Anglicans.

Now that's an area where I think a lot more work is needed to be able to explain that. And at the moment, even Catholics, those of us of goodwill, we don't have an explanation for that. And I think that's where work is needed, and that's why in the past I've said the Victorian inquiry, under-resourced as it is, has available to it the retired Justice Frank Vincent, who I think is one of the most outstanding retired criminal law judges in the country.

And so, I think to be able to draw on the resources of people like him as they forensically investigate those questions is critical. My worry now with a national royal commission which isn't just looking at the Catholic Church, but looking at agencies right across the board, I think it's going to be another five years before we get those sorts of forensic answers, which I was hoping we might get within some months.

[...]

EMMA ALBERICI: Is there something wrong with the structure of the Catholic Church in so far as there is no sort of umbrella hierarchical structure here in Australia, it is so state and diocese-based so it's very hard for you to know perhaps if a priest's been moved from interstate or indeed from overseas, what his particular past has been?

FRANK BRENNAN: I think there are now protocols in place that deal with that. If I may say, I think the real problem with the Catholic Church is the sort of unaccountable clericalism.

I was preaching in my parish in Canberra on Sunday and I told them the story: I'd been in Rome two years ago. I attended a meeting. I went across with two of my brother Jesuits from the United States. I attended a splendid concert that the Vatican put on and there was Pope Benedict and as the symphony played, an American priest turned to me and said, 'That man beside the Pope, that's Cardinal Law.' He said, 'If he was back home, he'd been in jail.'

I was very ashamed at that moment and I thought there is a structural problem, but it's not in terms as you've discussed. I think it's more the sort of unaccountable clericalism of a male celibate hierarchy and I think there are fundamental challenges for the Church in the 21st Century.

EMMA ALBERICI: He'd been in jail for what?

FRANK BRENNAN: Well, for things to do with failure to deal adequately with priests who'd been proven to be engaged in child abuse.

EMMA ALBERICI: So the accountability or the lack of accountability goes that high up within the Church?

FRANK BRENNAN: Sadly it does.

EMMA ALBERICI: So do you have faith in the ability of your Church to deal with these matters in such a way that protects children?

FRANK BRENNAN: I think the Church is a very broken institution, but one of the great things in living in a country like Australia is that we robustly pride ourselves on the rule of law and we're a pluralist democratic society where the Church is not exempt from things on the basis of some spurious pleading of freedom of religion.

And so what's essential - and I think this is accepted in good faith. I mean, the statement by our Australian Catholic Bishops today indicates they're accepting of a royal commission. They'll do anything they can to cooperate.

Now, the cynics about the Church will say, 'Well of course they'd say that now, wouldn't they?' But I think part of the reality of living in a pluralist democratic society is the people you meet in church every Sunday, they're members of the church, but they're also citizens of a robust pluralist democracy which prides itself on the protection of the vulnerable, including the most vulnerable children.

But what's going to be shown from this royal commission isn't only churches, it's the nation as a whole and there are going to be very political questions as to what's ruled in and what's ruled out with a national commission of this inquiry.

The Letters Patent of the Royal Commission

The Letters Patent issued by the Governor General for the Royal Commission Into Institutional Responses to Child Abuse state that we:

appoint you to be a Commission of inquiry, and require and authorise you, to inquire into institutional responses to allegations and incidents of child sexual abuse and related matters, and in particular, without limiting the scope of your inquiry, the following matters:

• what institutions and governments should do to better protect children against child sexual abuse and related matters in institutional contexts in the future;
• what institutions and governments should do to achieve best practice in encouraging the reporting of, and responding to reports or information about, allegations, incidents or risks of child sexual abuse and related matters in institutional contexts;
• what should be done to eliminate or reduce impediments that currently exist for responding appropriately to child sexual abuse and related matters in institutional contexts, including addressing failures in, and impediments to, reporting, investigating and responding to allegations and incidents of abuse;
• what institutions and governments should do to address, or alleviate the impact of, past and future child sexual abuse and related matters in institutional contexts, including, in particular, in ensuring justice for victims through the provision of redress by institutions, processes for referral for investigation and prosecution and support services.
• AND We direct you to make any recommendations arising out of your inquiry that you consider appropriate, including recommendations about any policy, legislative, administrative or structural reforms.
• AND, without limiting the scope of your inquiry or the scope of any recommendations arising out of your inquiry that you may consider appropriate, We direct you, for the purposes of your inquiry and recommendations, to have regard to the following matters: 
  • the experience of people directly or indirectly affected by child sexual abuse and related matters in institutional contexts, and the provision of opportunities for them to share their experiences in appropriate ways while recognising that many of them will be severely traumatised or will have special support needs; 
  • the need to focus your inquiry and recommendations on systemic issues, recognising nevertheless that you will be informed by individual cases and may need to make referrals to appropriate authorities in individual cases; 
  • the adequacy and appropriateness of the responses by institutions, and their officials, to reports and information about allegations, incidents or risks of child sexual abuse and related matters in institutional contexts;
  • changes to laws, policies, practices and systems that have improved over time the ability of institutions and governments to better protect against and respond to child sexual abuse and related matters in institutional contexts.
• AND We further declare that you are not required by these Our Letters Patent to inquire, or to continue to inquire, into a particular matter to the extent that you are satisfied that the matter has been, is being, or will be, sufficiently and appropriately dealt with by another inquiry or investigation or a criminal or civil proceeding.
• AND, without limiting the scope of your inquiry or the scope of any recommendations arising out of your inquiry that you may consider appropriate, We direct you, for the purposes of your inquiry and recommendations, to consider the following matters, and We authorise you to take (or refrain from taking) any action that you consider appropriate arising out of your consideration: 
  • the need to establish mechanisms to facilitate the timely communication of information, or the furnishing of evidence, documents or things, in accordance with section 6P of the Royal Commissions Act 1902 or any other relevant law, including, for example, for the purpose of enabling the timely investigation and prosecution of offences; 
  • the need to establish investigation units to support your inquiry; 
  • the need to ensure that evidence that may be received by you that identifies particular individuals as having been involved in child sexual abuse or related matters is dealt with in a way that does not prejudice current or future criminal or civil proceedings or other contemporaneous inquiries; 
  • the need to establish appropriate arrangements in relation to current and previous inquiries, in Australia and elsewhere, for evidence and information to be shared with you in ways consistent with relevant obligations so that the work of those inquiries, including, with any necessary consents, the testimony of witnesses, can be taken into account by you in a way that avoids unnecessary duplication, improves efficiency and avoids unnecessary trauma to witnesses;
  • the need to ensure that institutions and other parties are given a sufficient opportunity to respond to requests and requirements for information, documents and things, including, for example, having regard to any need to obtain archived material.
• AND We appoint you, the Honourable Justice Peter David McClellan AM, to be the Chair of the Commission.
• AND We declare that you are a relevant Commission for the purposes of sections 4 and 5 of the Royal Commissions Act 1902.
• AND We declare that you are authorised to conduct your inquiry into any matter under these Our Letters Patent in combination with any inquiry into the same matter, or a matter related to that matter, that you are directed or authorised to conduct by any Commission, or under any order or appointment, made by any of Our Governors of the States or by the Government of any of Our Territories.

The political complexities of this Royal Commission

The Commissioners were formally appointed under Western Australian law on 22 January 2013, Queensland law on 24 January 2013, New South Wales law on 25 January 2013, Victorian law on 12 February 2013, Tasmanian law on 4 March 2013 and South Australian law on 7 March 2013.

The Commission held its first public hearing on 16 September 2013. I daresay this is the first Royal Commission in Australian history not to have held any public hearing before both the Prime Minister and Attorney General who instituted it have left parliament, and before the government which established it has lost government. The journalist Joanne McCarthy's decision to release Prime Minister Gillard's letter of 26 June 2013 written 'with enormous pride' 'in the very final moments of my last evening as Prime Minister' and stating that 'thanks in very large measure to your persistence and courage, the NSW Special Commission of Inquiry and the federal Royal Commission will bring truth and healing to the victims of horrendous abuse and betrayal' did little to instill confidence that the royal commission was established after mature political and administrative consideration that this was the best means within our federation of addressing such horrific criminal behaviour and lack of institutional transparency. On 29 September 2013, Julia Gillard then told Ann Summers about her thinking during her last night in The Lodge. Seeing the royal commission as one of her top three achievements, Gillard said, 'If there had been one thing I could have done in that moment which would have sealed everything about school funding, I would have done it too. Or if there had been one thing that meant that the national disability insurance scheme was instantaneously rolled out, I would have done it, but those things weren't open to me. But it was open to me to make sure I wrote back, so I did.' There was nothing other than silence that Prime Minister Gillard could have done in that moment to contribute to a better outcome for a 3-5 year royal commission. There was nothing other than hands-off impartiality that she could have displayed that night that would mean that comprehensive child protection would be rolled out. She should have considered that the writing and publication of such a letter could be counterproductive rather than helpful. Whatever the propriety of the behaviour between Fox and McCarthy (and that is a matter for the Cunneen Inquiry which is yet to report), it would have been wise for a Prime Minister convening a royal commission on similar matters to avoid, prior to the Cunneen inquiry's findings, expressions of thanks to the journalist through whose persistence and courage the Prime Minister expected that the NSW Special Commission of Inquiry and the federal royal commission would bring truth and healing. In my opinion, the publication of the letter has done great harm to the standing and perceived impartiality of the royal commission and its remit. Imagine if Malcolm Fraser had sent a congratulatory letter to a journalist or whistleblower into the painters and dockers before the Costigan Commission had held its first hearings. And imagine if that person’s relationship with the police was still the subject of a state inquiry which was yet to report. There would have been hell to play, and quite rightly so. I don't think the late Frank Costigan QC would have been amused. I am sure that he would not have thought such a letter would make his daunting task any easier.

This is not just a Commonwealth Royal Commission. It is a joint Commonwealth-State Royal Commission and its subject matter mainly relates to issues primarily within the jurisdiction of the States, not the Commonwealth.

The Commission has the largest budget of any royal commission in our history. It will have a huge research arm. Like the Royal Commission into Aboriginal Deaths in Custody it will be torn between attention to traumatic individual cases about which in the end it will not be in a position to do much and research into underlying causes and patterns of institutional response. Another huge issue will be that over time there will be the growing realization that most child abuse occurs in families and the overwhelming statistical institutional failure to respond to such abuse will be found to be by state child welfare departments which are notoriously under-resourced and always have been.

Within this vortex, there will be much attention given to the Catholic Church, to abuse of children by church personnel, and to the Church's institutional responses to such abuse. Some elements of the media have already shown that they are hostile to the Catholic Church, but that is by no means a universal phenomenon. Those elements which are hostile will undoubtedly find added spice in the idea that the new Prime Minister and Attorney General are both Catholics.

I remain of the view that the Catholic Church and the victims of child abuse will be able to gain much from the more targeted inquiries including the now completed Whitlam Inquiry in Armidale, the continuing Cunneen Inquiry in Newcastle, and the ongoing Victorian Parliamentary Inquiry. Each of these inquiries has their limitations but they are sufficiently targeted to provide a quarry of evidence and reflection to assist all those wanting to improve Church processes and structures to minimize the prospect and damage from child abuse committed by church members. I remain agnostic about the long term effects of the royal commission, knowing that it will cost so much, take so long, and be in need of new political patrons while it navigates the impossibly wide terms of reference and even wider community expectation that it will provide thousands of victims the opportunity to tell their stories thereby achieving some healing as well as a sense of justice.

Just as the Royal Commission into Aboriginal Deaths in Custody established the self-evident propositions that Aborigines once in custody were no more likely to die in custody than non-Aborigines in custody and that Aborigines died in custody at ten times the rate of non-Aborigines because they were in custody at ten times the rate of non-Aborigines, so too it is very likely that this Royal Commission will establish that those institutions working most closely with vulnerable children are those most likely to have high rates of perpetrators engaging in sexual abuse of children.

Church liability for child sexual abuse

Sexual abuse of a child by an adult is always a serious criminal offence. The perpetrator is not only criminally responsible but also civilly liable for damage caused to the victim. If the perpetrator is employed in a situation involving regular contact with children, the victim might want to sue the employer as well as the perpetrator. In 2003, the High Court of Australia decided three cases on the liability of the State for sexual abuse of students by state school teachers. The court decided that state education authorities are not liable for the wrongs of these teachers unless the authorities themselves have been at fault. Chief Justice Gleeson said:

The legal responsibilities of such an authority include a duty to take reasonable care for the safety of pupils. There may be cases in which sexual abuse is related to a failure to take such care. A school authority may have been negligent in employing a particular person, or in failing to make adequate arrangements for supervision of staff, or in failing to respond appropriately to complaints of previous misconduct, or in some other respect that can be identified as a cause of the harm to the pupil. The relationship between school authority and pupil is one of the exceptional relationships which give rise to a duty in one party to take reasonable care to protect the other from the wrongful behaviour of third parties even if such behaviour is criminal. Breach of that duty, and consequent harm, will result in liability for damages for negligence.

Following this reasoning, a Church could be liable for the negligence of (say) a bishop who failed adequately to screen or supervise a Church worker or to investigate thoroughly any complaints made about a worker. If there was no evidence of negligence in recruitment or supervision, the Church would not be directly liable for the wrong committed by the worker.

In law, an employer could still be vicariously liable for the damage caused by a worker committing a criminal act if the act occurred in the course of employment. When dealing with this vicarious liability, Chief Justice Gleeson observed that 'where the teacher-student relationship is invested with a high degree of power and intimacy, the use of that power and intimacy to commit sexual abuse may provide a sufficient connection between the sexual assault and the employment to make it just to treat such contact as occurring in the course of employment'. In one of the cases considered by the Court, not even abuse by a teacher of primary school students in a one-teacher country school entailed vicarious liability of the teaching authority.

In most cases, churches like other employers and service providers are unlikely to be civilly liable for the criminal abuse committed by their workers provided the workers have been properly supervised at all times. To date in Australia, the victims of sexual abuse have been unlikely to succeed in court against anyone but the perpetrator or against a callously negligent employer or supervisor who had little regard for the signs that there may be a sexual predator in their midst. There have been many hurdles for a victim wanting to sue anyone but the criminal perpetrator.

A victim faces one additional hurdle when suing for abuse by a priest or other church personnel. Often the alleged abuse will have occurred many years ago and now there is a new supervising bishop or superior. The previous bishop or superior may even have died. Who is to be sued? In 2007, the New South Wales Court of Appeal clarified that in the case of the Catholic Church, there was no point in trying to sue the 'Trustees of the Roman Catholic Church', the statutory trust corporation that holds title to all the church lands of a diocese. That corporation may hold the assets but it does not supervise, employ or oversee clergy or other church workers.

The Church should not give any appearance of hiding behind the corporate veil. Justice demands that present church leaders agree to satisfy any judgment debt against their predecessors or their deceased predecessors' estates when there is an allegation of past failure to supervise or adequately investigate a sexual predator in the ranks. Any damages should be paid from church assets.

The Towards Healing protocol is not a substitute for criminal prosecution of sex abusers. Nor is it a cheap alternative to civil liability for damages. It is a procedure available by choice to victims in addition to criminal prosecution of perpetrators or pursuit of civil damages for negligence by church authorities. Whenever a complaint concerns an alleged crime, the protocol states that 'the Church has a strong preference that the allegation be referred to police and, if desired, the complainant will be assisted to do this.' Many victims of abuse have been helped by this professionally administered protocol. The church and victims would be worse off without this additional path to compassion, care and justice.

Lessons from the Armidale Inquiry

If Bishop Harry Kennedy were alive today he would be 98 years old. He became a bishop 42 years ago and retired 22 years ago. Chances are that, like others of his fellow bishops, he was a man of his times. 32 years ago he ordained a new priest, Fr 'F' and sent him to Moree parish in the Armidale Diocese. Two and a half years later, Kennedy abruptly terminated Fr F's appointment and sent him on 'what was euphemistically called 'sick leave'' to use the language of retired judge Antony Whitlam who conducted a thorough inquiry into the case of Fr F. A psychologist gave him the 'all clear' for continued ministry. Three years after the termination of Fr F's Moree appointment, he was arrested and charged with serious sexual offences against a boy Damien Jurd who had been an altar boy for Fr F in Moree. The magistrate improperly dismissed the charges. F continued to serve as a priest.

Kennedy being long dead, we will never hear his side of the story. But Whitlam was scrupulously fair in concluding on the evidence available to him that Kennedy's later treatment of Damien's parents was a disgrace, Kennedy's failure to look into various matters was 'utterly inexplicable', and his record keeping was abysmal. But for the spotlight of a retired judge being applied to the issues which arose once F was moved around from Moree to various other parishes in the dioceses of Armidale and Parramatta, it is unlikely that the present bishop of Armidale would have publicly acknowledged that Kennedy 'failed in his duty of governance [of the diocese] and, more importantly, in his duty to the pastoral care of its people.' It will be no surprise if the McClellan Royal Commission highlights such failings by some other bishops of that generation. The judicial spotlight is welcome.

The 4 Corners program Unholy Silence which led to the Whitlam inquiry made much of a meeting on 3 September 1992 between Fr F and three still serving senior clergy — Frs Usher, Lucas and Peters. According to the 4 Corners reporter Geoff Thompson, 'What happened at the meeting [on 3 September 1992] is crucial to understanding the major flaws in the way the Catholic Church deals in-house with allegations of sexual abuse'. This was the first of three such meetings between September and November 1992. On its face, the letter of Fr Peters to his bishop eight days after the first meeting which was said to be 'a short report on the meeting', disclosed five distinct admissions by F to sexual interference with children.

Having interviewed all three senior clerics and having reviewed all available documentary evidence twenty years later, Whitlam concluded, 'Notwithstanding the honest differences in recollection, I do not disbelieve Fr Lucas and Mgr Usher. Accordingly if 'F' made no admissions that either of them considered could and should be reported to the police, then there was no 'cover-up' back in 1992.' Whitlam observed that 'There is nothing sinister in that situation. Nor do I consider that [the Peters' letter of 11 September 1992] must necessarily be accepted as a more accurate record of the discussion.'

On the 4 Corners program, Cardinal Pell's edited remarks gave the impression that there was a contemporary file note relating to the meeting of 3 September 1992. He said, 'The file note of that meeting …does not show that [Fr F] made any admission'. Whitlam observed, 'It would be unfortunate if that statement gave the impression that Fr Usher's briefing note was a contemporaneous record of the meeting in question.' In fact the file note provided to His Eminence was drawn up on 6 June 2012. Speaking for Fr Lucas on the program, Cardinal Pell said, 'I've reported what the file note says and what he said about what happened at that particular meeting.' Two days after the program, the Archdiocese of Sydney issued a media statement pointing out that the Peters' letter did not reflect the 'notes of the meeting held by the Church's Professional Standards Office.' Those notes were presumably not the file note to which His Eminence was referring. Unfortunately those notes do not appear in the Whitlam report.

Kerry O'Brien introduced the 4 Corners program with the question, 'But why has this man (Fr F) not been brought to justice?' He said the story would focus 'on the failure of the Church at very senior levels, right up to the present day, to deal adequately with allegations of serious and predatory crimes, including the apparent failure to alert police'.

Having inspected all available materials and having interviewed all key players still living, Whitlam provided a more complex tale. It's not just a matter of out of touch clergy failing to act justly, compassionately and transparently. It is gratifying that Whitlam found that 'had procedures for reporting child abuse laid down in [Towards Healing] been in force in 1984 and observed in Moree at the time, 'F' would have been stopped in his tracks,' and that 'if those procedures had been in place in 1989 and followed in 'F's' case, there is no chance that [the Bishop of Parramatta] would have agreed to take him on.' Daniel Powell who became one of F's victims in Parramatta would have been spared F's depredations.

One of the matters for the Royal Commission will be to consider what should be the liability of the Church as an unsuspecting employer for the criminal acts of 'an employee' like Fr F who preys on an unsuspecting child like Damien Jurd. This will entail consideration of legal and moral questions about vicarious liability of employers for criminal acts of employees committed outside the scope of their employment and without knowledge of their employer, even if the employer be cautious and diligent. Another matter will be consideration of the strict liability of any employer, including the Church, for permitting a renowned offending employee like Fr F to be placed in a position of threat to children like Daniel Powell.

It is gratifying that Whitlam had no substantive criticism to make of any of Bishop Kennedy's successors in Armidale nor of either Bishop of Parramatta with whom F dealt. Even the late Bishop Kennedy could have been helped if he had better counsel available on the psychology of child sex abusers. Back in those days, it was possible for a psychologist to write to Kennedy in July 1988 after assessing F and saying that 'he no longer presents any problems for children or yourself' and 'I would hope that 'F' will be given every opportunity to move beyond the cloud that still appears to hang over his head and receive the care and support he justly deserves after all this time.' After interviewing F himself, Mgr Usher wisely counselled that another assessment be sought, noting, 'During my interview with him I gained the impression that he was unable to understand the seriousness of the matters with which he had been charged and was arrogantly dismissing the whole affair as a figment of other people's imagination'. After Kennedy's retirement, the new bishop took Usher's advice and sought an alternative professional opinion. The bishop was advised in 1992 that ''F' will be an ongoing risk', 'a high risk of recidivism' and 'the prognosis is not good'. The new bishop acted promptly to have 'F' withdrawn from all ministry.

The late Bishop Kennedy's incompetence might not have wrought such damage, especially to Daniel Powell, if the prosecution of F had been more competent. Whitlam found that the reasons of the magistrate in discharging F in 1988 were 'plainly unsatisfactory and provide no support for his stated conclusion' and 'reflect a flawed approach to the exercise of his jurisdiction to discharge'. Whitlam said, 'It is difficult to see how a decision was made not to continue the prosecution of 'F' on an ex officio indictment.' There will be many complex lessons from the royal commission, and not just for Catholic bishops. Bishop Kennedy was not the only one out of his depth in the saga of Fr F; practitioners in law and psychology were found wanting. Other than Kennedy, most of the senior clergy involved with F appear to have done their job credibly according to the values and practices of the time. It is now for the royal commission to recommend how contemporary values and practices can be improved for the protection of children like Damien Jurd and Daniel Powell. It may be that the royal commission armed with more investigative powers and resources than was Mr Whitlam will be able to turn up more detail on the case of Fr F and the church's handling of the matter, but I do not share the view of the Australian Lawyers' Alliance: 'The recent internal investigation by the Hon. Tony Whitlam QC is merely a further example of the failure to take any useful or effective action in the most serious of cases, and proof that the Church cannot be trusted to improve its own poor record of misconduct.'

Liability for personal negligence, vicarious liability and strict liability for breach of non-delegable duty

In February 2003, the High Court of Australia gave decisions in three cases relating to child sexual abuse perpetrated by teachers in state schools. The Cases are NSW v Lepore, Sarin v Queensland, and Rich v Queensland.

The Court considered three heads of tortious liability of school authorities which happen to employ a teacher who is a child abuser.

First, the employer has the duty to take reasonable care when employing and supervising the teacher. As Chief Justice Gleeson put it: 'A school authority may have been negligent in employing a particular person, or in failing to make adequate arrangements for supervision of staff, or in failing to respond appropriately to complaints of previous misconduct, or in some other respect that can be identified as a cause of the harm to the pupil. The relationship between school authority and pupil is one of the exceptional relationships which give rise to a duty in one party to take reasonable care to protect the other from the wrongful behaviour of third parties even if such behaviour is criminal. Breach of that duty, and consequent harm, will result in liability for damages for negligence.'

Second, there are some circumstances when the employer will be vicariously liable for the wrongdoing of the teacher in the course of their employer. As Chief Justice Gleeson put it:

It is the element of protection involved in the relationship between school authority and pupil that has given rise to difficulty in defining the circumstances in which an assault by a teacher upon a pupil will result in vicarious liability on the part of a school authority. The problem is complicated by the variety of circumstances in which pupil and teacher may have contact, the differing responsibilities of teachers, and the differing relationships that may exist between a teacher and a pupil. Some teachers may be employed simply to teach; and their level of responsibility for anything other than the educational needs of pupils may be relatively low. Others may be charged with responsibilities that involve them in intimate contact with children, and require concern for personal welfare and development.

He went on to say:

It cannot be said that the risk of sexual abuse ought to be regarded as an incident of the conduct of most schools, or that the ordinary responsibilities of teachers are such that sexual assaults on pupils would normally be regarded as conduct (albeit serious misconduct) within the scope of employment. However, there are some circumstances in which teachers, or persons associated with school children, have responsibilities of a kind that involve an undertaking of personal protection, and a relationship of such power and intimacy, that sexual abuse may properly be regarded as sufficiently connected with their duties to give rise to vicarious liability in their employers.

Third, there is the non-delegable duty of the employer to provide a safe system for the provision of education to children. This duty was most clearly enunciated by Justice Lionel Murphy in Introvigne when he identified the duties of an education authority as duties '[t]o take all reasonable care to provide suitable and safe premises ... to provide an adequate system to ensure that no child is exposed to any unnecessary risk of injury; and ... to see that the system is carried out.' — quoted by Gaudron J. 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.

Now there have been recent developments in the law in Canada and the UK somewhat at variance with the Australian approach. The UK Supreme Court has expressed passing surprise at the Australians. In Catholic Child Welfare Society v FC and the Institute of the Brothers of the Christian Schools, Lord Phillips writing for the Court in November 2012 said, 'For completion I should add that the High Court of Australia, when considering whether a school authority could be vicariously liable for sexual assault committed on a pupil by a teacher, has shown a bewildering variety of analysis (Lepore). Only Gleeson CJ and Kirby J were prepared to consider following the approach of the Canadian and English decisions.'

The UK Supreme Court was satisfied that the relationship between teaching brothers and their Institute 'was sufficiently akin to that of employer and employees to satisfy stage 1 of the test of vicarious liability' including that 'the employee will, to a greater or lesser degree, have been under the control of the employer'. In this case, the brothers teaching in St Williams, established as a reformatory school and later classed as 'an assisted community home' for children in the care of the local authority were employed directly by the Middlesbrough Defendants but the court was prepared to consider a case of dual vicarious liability including the religious institute which was based in Rome and divided into provinces. The local diocese went to court claiming that liability should be shared by the religious congregation, and it succeeded.

Lord Phillips said:

In the context of vicarious liability the relationship between the teaching brothers and the Institute had many of the elements, and all the essential elements, of the relationship between employer and employees:

i. The institute was subdivided into a hierarchical structure and conducted its activities as if it were a corporate body.
ii. The teaching activity of the brothers was undertaken because the Provincial directed the brothers to undertake it. True it is that the brothers entered into contracts of employment with the Middleborough Defendants, but they did so because the Provincial required them to do so.
iii. The teaching activity undertaken by the brothers was in furtherance of the objective, or mission, of the Institute.
iv. The manner in which the brother teachers were obliged to conduct themselves as teachers was dictated by the Institute's rules.

The relationship between the teacher brothers and the Institute differed from that of the relationship between employer and employee in that:

i. The brothers were bound to the Institute not by contract, but by their vows.
ii. Far from the Institute paying the brothers, the brothers entered into deeds under which they were obliged to transfer all their earnings to the Institute. The Institute catered for their needs from these funds.

He concluded: 'Neither of these differences is material. Indeed they rendered the relationship between the brothers and the Institute closer than that of an employer and its employees.'

In relation to stage 2, 'the connection between the brothers' acts of abuse and the relationship between the brothers and the Institute', Lord Phillips concluded:

Vicarious liability is imposed where a defendant, whose relationship with the abuser put it in a position to use the abuser to carry on its business or to further its own interests, has done so in a manner which has created or significantly enhanced the risk that the victim or victims would suffer the relevant abuse. The essential closeness of connection between the relationship between the defendant and the tortfeasor and the acts of abuse thus involves a strong causative link.

These are the criteria that establish the necessary 'close connection' between relationship and abuse. I do not think that it is right to say that creation of risk is simply a policy consideration and not one of the criteria. Creation of risk is not enough, of itself, to give rise to vicarious liability for abuse but it is always likely to be an important element in the facts that give rise to such liability.

Since the 2003 High Court decisions, the Supreme Courts of both Canada and the UK have held that the relationship between a bishop and a diocesan priest is akin to an employment relationship 'inasmuch as the priest took a vow of obedience to the bishop, the bishop exercised control over the priest, including the power of assignment, the power to remove the priest from his post and the power to discipline him.'

Some matters of legal liability will undoubtedly require further clarification in litigation pursued all the way to the High Court. Just as the Commonwealth government prides itself as always acting as a model litigant, so too should organisations such as the Catholic Church. In particular, the Church should: pay legitimate claims without litigation where it is clear that liability is at least as much as the amount to be paid; endeavour to avoid, prevent and limit the scope of legal proceedings wherever possible being open to alternative dispute resolution; not require a complainant to prove a matter which the Church knows to be true; not contest liability if the Church knows that the dispute is really about quantum; not take advantage of a claimant who lacks the resources to litigate a legitimate claim; and not rely on a technical defence unless the Church would be prejudiced by the failure to comply with the particular requirement.

Conclusion

Those who exercised high office in our Church before 1996 will need to apprise the royal commission of the clerical structures and culture which precluded them from taking further action to arrest child abuse in the Church prior to the institution of Towards Healing and the Melbourne Response. For example, in his written submission to the Victorian Inquiry Cardinal Pell stated, 'As an auxiliary bishop to Archbishop Little I did not have the authority to handle these matters and had only some general impressions about the response that was being made at that time, but this was sufficient to make it clear to me that this was an issue which needed urgent attention and that we needed to do much better in our response.' Back in 1988, Archbishop Little had set up 'a confidential subcommittee' consisting of a lawyer, a psychiatrist and a priest and in 1992, Fr Denis Hart (as he then was) first began to hear that priests were engaging in sexual abuse. When speaking of his installation as Archbishop of Melbourne on 16 August 1996, Cardinal Pell wrote to the parliamentary committee saying: 'At this time, the media was full of accounts detailing sex abuse in the Catholic community.' Meanwhile in Sydney in the Ellis litigation to which Cardinal Pell was initially a defendant, Justice Mason, President of the New South Wales Court of Appeal, had cause to refer to the affidavit of Fr John Usher referring to the Archbishop of Sydney, Cardinal Freeman 'and a number of Auxiliary Bishops as 'the persons within the Archdiocese with canonical/spiritual authority in relation to (the wrongdoer, Fr Duggan) in respect of the period''. Justice Mason later referred to the evidence 'showing that it was the former Archbishop, in consultation with the Archdiocesan Council, and not the Trustees, who appointed and supervised Fr Duggan.' These issues of authority and knowledge are in desperate need of clarification for the good of all parties and for the good of the Church. If there were different structures and practices in the major archdioceses with auxiliary bishops, for example between Melbourne and Sydney, then this needs to be clarified publicly and promptly.

There is obviously also a need to admit error and rectify the way some lawyers have acted in the name of the Church in the past. The Ellis case which has generated a lot of publicity in recent times is a real blot on the Church's record in light of the letter sent by Monsignor John Usher, Chancellor of the Archdiocese of Sydney, to Mr John Ellis on 6 August 2009 stating that he was distressed to learn that the Archdiocesan lawyers had never responded to an offer of compromise and that the Cardinal 'will do all in his power to ensure that this sort of legal abuse is never repeated again'. Appearing before the royal commission, church bodies will need to enunciate a principled position on the maintenance of legal professional privilege. Given the undoubted instances of legal obfuscation in the past, I have suggested that there be a general waiver of privilege in the interests of transparency but with an exception being made for documents between lawyer and client in relation to matters still pending in the courts. The questions of legal privilege will be complex in this royal commission because the law of privilege varies between States and between States and the Commonwealth, bearing in mind that this is in effect seven royal commissions all rolled into one.

Let's be in no doubt that the Australian Catholic Church needed help from the State and from civil society so that we might get our house in order in dealing with child abuse which had been occurring at a most unacceptable rate and which had been addressed in too incremental a way. The royal commission established by the Gillard government is a very cumbersome device for dealing with the matter within the Australian federation. The commission is going to need a new generation of political patrons. Its remit is impossibly broad. Like the Royal Commission into Aboriginal Deaths in Custody it will pursue many tracks of academic research but the real test will be its capacity to provide satisfaction to victims and the reassurance to the community that institutional responses have been improved as best they might.

For the Catholic Church, this commission will continue to be a difficult exercise, in part because of the bias of some of the media and some of the key actors — for example, the Victorian Police Force whose performance before the Victorian parliamentary inquiry was a partisan disgrace providing a submission 'limited to comment regarding religious organisations, in particular the Catholic Church', and described by Peter O'Callaghan QC as 'plainly wrong and seriously misconceived', and Newcastle's Inspector Peter Fox who allowed his personal crusade to displace his usual obligations as a police officer.18 But over time, we should be confident that the truth will out. 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.

Fr Frank Brennan SJ is professor of law at Australian Catholic University, and adjunct professor at the College of Law and the National Centre for Indigenous Studies, Australian National University.