The Catholic Church has attempted to revive the controversial “Ellis defence,” a legal strategy that previously shielded it from being sued for damages by victims of sexual abuse. This move, uncovered by an ABC investigation, has sparked renewed debate over the church’s legal responsibilities and the rights of abuse survivors.
The “Ellis defence” was a legal loophole that argued the church could not be sued because it did not exist as a legal entity. This loophole was closed by the Victorian government in 2018 following condemnation from the child sexual abuse royal commission. Under current laws, the church must nominate a representative to be sued, with Archbishop Peter Comensoli serving in this role in Melbourne. He is not accused of any wrongdoing.
Legal Challenges and Court Rulings
In 2022, the church attempted to reinstate the “Ellis defence” during legal proceedings overseen by Archbishop Comensoli. However, the Victorian Supreme Court dismissed the church’s argument, with the victim’s lawyers describing it as a “distorted construction” of the legislation. This case is part of a significant increase in historical abuse cases against the church, with at least 84 individuals currently suing over alleged abuse by priests or church officials.
The ability of many victims to seek compensation has been complicated by a recent High Court ruling in Bird v DP, which determined that churches cannot always be held liable for priests’ actions, as they are not considered employees. This decision has yet to be addressed by new legislation, despite government promises to close the loophole.
Advocacy and Legislative Delays
Advocates, including Steve Fisher of Beyond Abuse, have been vocal in urging state and territory attorneys-general to amend the law. Fisher expressed frustration over the lack of progress, stating, “The fact that they haven’t done it already and it’s been almost a year is really ringing alarm bells.”
Since the Victorian government’s 2018 legislation requiring religious institutions to nominate a “proper defendant,” the number of institutional abuse cases has surged. Despite this increase, public information remains scarce, as many cases settle out of court or are not included in public databases.
Church’s Legal Tactics and Financial Implications
The church’s attempts to exploit legal loopholes have been evident in several cases, including a 2022 attempt to narrow the scope of the Legal Identity Act. This involved a case where a parent claimed their son was abused by George Pell, leading to his death from a heroin overdose. The church argued the law only applied to primary victims, but the court rejected this interpretation.
Financially, the stakes are high for the church. In November 2023, a jury awarded $4.1 million to “TJ,” an altar boy abused by priest Vincent Kiss. The church initially contested the abuse claims but later conceded. The Court of Appeal reduced the payout to $1.5 million, highlighting the financial complexities of these cases.
Impact on Victims and Institutional Responses
The High Court’s Bird ruling has intensified the challenges faced by victim-survivors. While the Victorian government has pledged to address the ruling with new legislation, progress has been slow. This delay has drawn criticism from advocates who argue that it compounds the trauma experienced by survivors.
In response, Archbishop Comensoli’s office has emphasized its commitment to addressing historical abuse. A spokesperson stated, “The archdiocese is unequivocally committed to attending to the harm done to innocent children through historic child abuse by archdiocesan personnel.”
“We have always sent a clear message to survivors of child abuse: we stand with you in your fight for justice — and we always will,” said Victorian Attorney-General Sonya Kilkenny.
Looking Forward
The ongoing legal battles and legislative delays underscore the complex landscape surrounding institutional abuse cases. While the church has expressed a desire to settle cases early, the slow pace of legal reform continues to frustrate victims and advocates alike.
As the legal and public discourse evolves, the focus remains on ensuring justice for survivors and holding institutions accountable. The coming months will be crucial in determining how effectively these issues are addressed and whether new legislation will finally close existing loopholes.
