WEBVTT - How the Catholic church fights abuse survivors

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<v Speaker 1>I'm Ruby Jones and you're listening to seven AM. A

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<v Speaker 1>year ago, the High Court handed down a decision that

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<v Speaker 1>was a blow to survivors of child sexual abuse everywhere.

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<v Speaker 1>In a case against a man who was abused as

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<v Speaker 1>a little boy, the Catholic Church's Diocese of Ballarat argued

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<v Speaker 1>they couldn't be sued for the actions of one of

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<v Speaker 1>their priests because priests are employed by God, not by

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<v Speaker 1>the Church. The ruling in the church's favor left thousands

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<v Speaker 1>of survivors devastated, but the Court said it was now

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<v Speaker 1>up to parliaments to act. Recently, the Act Government went first,

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<v Speaker 1>legislating to overrule the High Court decision in a major

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<v Speaker 1>win for victim survivors. Today, lawyer and advocate Judy Corton

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<v Speaker 1>on when the other states will follow and how the

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<v Speaker 1>Catholic Church will fight back. It's Friday, November fourteenth, all right,

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<v Speaker 1>so duty to begin with. Let's talk about the Bird case.

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<v Speaker 1>How did the Catholic Church argue its side?

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<v Speaker 2>Now, the church was not saying that the sexual abuse

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<v Speaker 2>didn't happen. They accept it and admitted that one of

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<v Speaker 2>their priests did commit those crimes. What they argued was

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<v Speaker 2>that because the church argues that priests are not employed

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<v Speaker 2>in a normal employment relationship. Therefore the diocese of the

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<v Speaker 2>church could not be held legally liable. There are two

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<v Speaker 2>main types of legal liability in these claims. One is

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<v Speaker 2>called negligence, and for negligence we have to prove that

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<v Speaker 2>an institution breached its duty of care to a child.

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<v Speaker 2>So if we can't find the evidence that a duty

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<v Speaker 2>of care was breached in other words, there had been

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<v Speaker 2>prior complaints, we cannot a claim that the institution was negligent.

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<v Speaker 2>That used to leave a second legal hook, called a

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<v Speaker 2>vicarious liability, where we don't have to prove the church

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<v Speaker 2>was at fault at all. We have to show that

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<v Speaker 2>the relationship between the pedophile or the offending priest, for example,

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<v Speaker 2>and the institution was one of employment. Now, up until

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<v Speaker 2>this High Court decision in Canada in nineteen ninety nine,

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<v Speaker 2>the UK twenty ten to twenty twelve and subsequently have

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<v Speaker 2>found that a Catholic archdioces, for example, can be vicariously

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<v Speaker 2>liable in that the relationship between the offending priest and

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<v Speaker 2>the institution is one that is akin to an employment relationship.

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<v Speaker 2>The High Court didn't agree with that everyone assumed the

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<v Speaker 2>High Court would take on the law from all the

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<v Speaker 2>other common law jurisdictions. That didn't happen. The High Court

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<v Speaker 2>agreed with the Catholic Church. Priests, brothers, nuns, Catholic clergy

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<v Speaker 2>are not employed. Therefore there's no vicarious liability and if

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<v Speaker 2>we don't have negligence, there is no claim.

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<v Speaker 1>Right, okay. And so when that decision came down, obviously

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<v Speaker 1>it would have affected the individual bringing the case, But

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<v Speaker 1>what about other people in a similar position. What's the

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<v Speaker 1>precedent that was set there?

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<v Speaker 2>So not only does it affect people who were assaulted

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<v Speaker 2>by Catholic clergy, you know, Christian brothers and nuns and

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<v Speaker 2>so on, there is a huge cohort of people who

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<v Speaker 2>are volunteers, for example, that have also now been carved out.

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<v Speaker 2>So for example, the Scouts, Salvation Army, there are volunteers

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<v Speaker 2>in all sporting organizations. Basically wherever children gather, pedophiles will go.

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<v Speaker 2>So there's another huge cohort of saviva victims who have

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<v Speaker 2>no access now to justice. Example, I use if you

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<v Speaker 2>have two brothers from one family going to a Christian

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<v Speaker 2>brother's primary school. One is raped by a Christian brother,

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<v Speaker 2>the other by a lay teacher. The boy that's raped

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<v Speaker 2>by the lay teacher will have access to justice, but

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<v Speaker 2>not the other. So we have two tiers of justice.

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<v Speaker 2>Since that High Court decision, we have had many many,

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<v Speaker 2>a third of my practice alone, a third of people

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<v Speaker 2>have been directly impacted by the Bird decision.

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<v Speaker 1>And so when you look at the way the Catholic

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<v Speaker 1>Church approached this, the defense that they mounted, and the

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<v Speaker 1>way that they took that all the way to the

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<v Speaker 1>High Court, what does that say to you about the

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<v Speaker 1>way this particular institution is thinking about how to respond

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<v Speaker 1>to its responsibility when it comes to child sexual abuse

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<v Speaker 1>that's happened.

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<v Speaker 2>What the churches have demonstrated is that they do not

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<v Speaker 2>give a rats about victims of They treat these as

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<v Speaker 2>commercial matters. There is no compassion, it's everything, but you

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<v Speaker 2>know that Christianity that they are supposed to practice. And

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<v Speaker 2>on that point, each year, the beginning of the legal year,

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<v Speaker 2>beginning of the judicial year, there is something called a

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<v Speaker 2>red mass. Members of the legal profession, parliamentarians who are

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<v Speaker 2>Catholics attend this maths. And what I find quite extraordinary

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<v Speaker 2>as we have the Catholic Church engaging lawyers to be

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<v Speaker 2>highly legalistic, highly adversarial to further crush these victims survivors.

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<v Speaker 2>We have Bishop Vincent earlier this year saying, and I'll quote,

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<v Speaker 2>as we pray for the guidance of the Holy Spirit

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<v Speaker 2>on our work at this Red Mass, we recommit ourselves

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<v Speaker 2>to God's vision of justice, mercy and the fullness of

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<v Speaker 2>life for all humanity.

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<v Speaker 3>Let it be a time in which we as a

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<v Speaker 3>church reclaim the powerlessness of Christ and the fundamental ethos

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<v Speaker 3>of care for the week, justice for the excluded. Then

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<v Speaker 3>we can truly be servants of justice, the conduits of

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<v Speaker 3>mercy and signs of hope.

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<v Speaker 2>For now, it's not for all humanity at all. You know,

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<v Speaker 2>there is no justice often for the vulnerable, the harmed,

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<v Speaker 2>the psychiatrically harmed, victim survivors.

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<v Speaker 1>Coming up justice for victim survivors in one small part

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<v Speaker 1>of the country, and so Judy. When the High Court

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<v Speaker 1>found in the Catholic churches favor, it called on state

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<v Speaker 1>and territory governments to act that it was our parliaments

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<v Speaker 1>that needed to address this. It was now out of

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<v Speaker 1>the Court's remit. Recently we have started to see that begin.

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<v Speaker 1>So tell me about what's been happening.

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<v Speaker 2>Sure, you're right, the High Court has handballed, if you like,

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<v Speaker 2>or suggested that state and territory parliaments now deal with

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<v Speaker 2>this problem. In other words, we need legislation to reverse

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<v Speaker 2>that High Court decision. The Act Parliament passed a bill

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<v Speaker 2>unopposed a couple of weeks ago, and this bill, I

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<v Speaker 2>won't call it the big beautiful bill, but it is

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<v Speaker 2>a bill that does tick all the requisite boxes for

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<v Speaker 2>victim survivors.

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<v Speaker 4>This bill is required to ensure survivors who are abused

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<v Speaker 4>by people in positions akin to employment are able to

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<v Speaker 4>access justice. It is necessary because without it, institutions that

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<v Speaker 4>have had children abusing their care can avoid responsibility for

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<v Speaker 4>the actions of those they effectively employed.

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<v Speaker 2>So first thing this bill does is it will apply retrospectively.

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<v Speaker 2>It has to do otherwise it's futile. It redefines the

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<v Speaker 2>role of someone who is an employee and it says

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<v Speaker 2>I'm not going to use a word for word, but

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<v Speaker 2>it says basically, a person who is akin to an

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<v Speaker 2>employee is a person who carries out the role of

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<v Speaker 2>the purposes of the institution and for the benefit of

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<v Speaker 2>the institution.

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<v Speaker 4>We are discussing today will have the effect that children

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<v Speaker 4>who are abused by people carrying out a role in

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<v Speaker 4>the organization or activities for the benefit of the organization

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<v Speaker 4>can access justice.

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<v Speaker 2>Now, that could be someone who's a volunteer. It could

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<v Speaker 2>be a priest, it could be a teacher, it could

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<v Speaker 2>be anyone belonging to an organization or institution. No particular

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<v Speaker 2>group is carved out. Every case will be taken on

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<v Speaker 2>its facts, and the court will determine whether that person

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<v Speaker 2>is akin to an employee and whether or not the

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<v Speaker 2>institution provided that person with the power of the authority

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<v Speaker 2>and the occasion to commit the crime. The other really

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<v Speaker 2>critical element of the Act Bill is it gives the

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<v Speaker 2>courts the power to throw out or set aside any

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<v Speaker 2>settlements that have been unfair and unjust on the back

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<v Speaker 2>of that Bird decision. So that's what we've got in

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<v Speaker 2>the Act Bill, and it's a model bill, I would

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<v Speaker 2>say for the whole country.

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<v Speaker 1>Okay, So it sounds like then, at least in cambro

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<v Speaker 1>there will be this avenue for survivors. But where is

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<v Speaker 1>the rest of the country up to When it comes

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<v Speaker 1>to looking at legislation.

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<v Speaker 2>Victoria, our Attorney General made an announcement a few weeks ago

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<v Speaker 2>that there will be a bill tabled before the end

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<v Speaker 2>of the year. The announcement did say that it would

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<v Speaker 2>be retrospects and it would have what we call the

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<v Speaker 2>set aside provision in it, so for those who have

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<v Speaker 2>settled unfairly and unjustly on the back of bird can

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<v Speaker 2>have another go. What we don't know yet is how

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<v Speaker 2>the Victorian bill is going to look at volunteers. So

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<v Speaker 2>we're hoping to get that bill at well. We've been

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<v Speaker 2>told we'll get the bill before the end of the year,

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<v Speaker 2>so we're going to wait and see the wording of it.

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<v Speaker 2>It should and must I'd say not carve out volunteers

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<v Speaker 2>because that is a huge cohort of pedophiles. So that's

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<v Speaker 2>only two jurisdictions. We haven't heard anything from New South Wales.

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<v Speaker 2>What I will say is that New South Wales, South Australia,

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<v Speaker 2>Tasmania and the Northern Territory have existing legislation vicarious liability legislation.

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<v Speaker 2>But the problem with it it is only prospective. It's

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<v Speaker 2>not retrospective, so it's of no use to anyone that

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<v Speaker 2>was assaulted before the bill was asked what those for

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<v Speaker 2>jurisdictions need to do is they need to amend those

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<v Speaker 2>pieces of legislation, make them retrospective, including that set aside provision,

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<v Speaker 2>and make sure that they don't carve out, as I say, volunteers,

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<v Speaker 2>the examples been set by the Act. They're very brave

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<v Speaker 2>in the Act. They've stood up, proud and tall and

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<v Speaker 2>supported survivor victims. So states do need the courage to

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<v Speaker 2>stand up. This is what we expect of our parliamentarians

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<v Speaker 2>to stand up and do the right thing. By thousands

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<v Speaker 2>and thousands of very traumatized people who were sexually assaulted

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<v Speaker 2>and rapist children.

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<v Speaker 1>And you've spent your life fighting for those people, for

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<v Speaker 1>people who were assaulted, often by people associated with the

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<v Speaker 1>Catholic Church. And so as a result, you've also seen

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<v Speaker 1>the ways in which this institution fights back. So when

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<v Speaker 1>it comes to this legislation in the Act and potential

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<v Speaker 1>other legislation in other states, how do you think the

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<v Speaker 1>Church is going to respond to these laws? What is

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<v Speaker 1>the next move for them?

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<v Speaker 2>Well, Monce's legislation is legislation, but of course they will

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<v Speaker 2>continue vigorously fighting and defending every individual claim. So each

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<v Speaker 2>claim is a battle, a huge battle, and they fight

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<v Speaker 2>it to the end. It's okay we fight it when

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<v Speaker 2>I'm for never giving up, but they shouldn't be such

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<v Speaker 2>big battles. Bishop Bird should never have taken that all

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<v Speaker 2>the way to the High Court. The costs, the costs,

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<v Speaker 2>the financial costs, the people. You know, some of our

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<v Speaker 2>clients when they found out, became suicide or we had

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<v Speaker 2>one client who was on suicide watch for weeks. It

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<v Speaker 2>is causing an enormous amount of harm and there are

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<v Speaker 2>a lot of people involved. I estimate, I don't know

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<v Speaker 2>the actual number, but I estimate in Victoria alone there

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<v Speaker 2>would be about two thousand people who have been impacted

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<v Speaker 2>by the Bird decision. So what does that mean around

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<v Speaker 2>the country. It's very hard to say, but many thousands

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<v Speaker 2>of people. And it has created, as I say, this

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<v Speaker 2>dual system of justice or injustice as it turns out.

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<v Speaker 1>Well, Judy, thank you so much for your time.

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<v Speaker 2>Great, thank you very much.

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<v Speaker 1>Also in the news, the Liberal Party has scrapped net zero,

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<v Speaker 1>as widely expected. One source told the ABC the party

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<v Speaker 1>would keep language in its climate policy that suggests that

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<v Speaker 1>zero would be a welcome outcome, but will abandon it

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<v Speaker 1>as a formal goal. The move follows the National's earlier

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<v Speaker 1>decision to walk away from the target. The Liberal Party

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<v Speaker 1>will meet with them National's colleagues on Sunday. And Neo

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<v Speaker 1>Nazi Thomas Saul has been released from prison. The thirty

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<v Speaker 1>two year old was deemed too dangerous to live in

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<v Speaker 1>the community just two months ago. It was also found

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<v Speaker 1>at the time that there was a risk he could

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<v Speaker 1>interfere with witnesses in a criminal case if given the opportunity.

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<v Speaker 1>Saul faces twenty one charges, including violent order and a fray,

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<v Speaker 1>and is one of more than a dozen people charged

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<v Speaker 1>over the attack on Camp Sovereignty, a sacred place for

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<v Speaker 1>First Nations people. I'm Ruby Jones. This is seven am.

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<v Speaker 1>Thanks for listening.