Speaker 1: I'm Ruby Jones and you're listening to seven AM. A
Speaker 1: year ago, the High Court handed down a decision that
Speaker 1: was a blow to survivors of child sexual abuse everywhere.
Speaker 1: In a case against a man who was abused as
Speaker 1: a little boy, the Catholic Church's Diocese of Ballarat argued
Speaker 1: they couldn't be sued for the actions of one of
Speaker 1: their priests because priests are employed by God, not by
Speaker 1: the Church. The ruling in the church's favor left thousands
Speaker 1: of survivors devastated, but the Court said it was now
Speaker 1: up to parliaments to act. Recently, the Act Government went first,
Speaker 1: legislating to overrule the High Court decision in a major
Speaker 1: win for victim survivors. Today, lawyer and advocate Judy Corton
Speaker 1: on when the other states will follow and how the
Speaker 1: Catholic Church will fight back. It's Friday, November fourteenth, all right,
Speaker 1: so duty to begin with. Let's talk about the Bird case.
Speaker 1: How did the Catholic Church argue its side?
Speaker 2: Now, the church was not saying that the sexual abuse
Speaker 2: didn't happen. They accept it and admitted that one of
Speaker 2: their priests did commit those crimes. What they argued was
Speaker 2: that because the church argues that priests are not employed
Speaker 2: in a normal employment relationship. Therefore the diocese of the
Speaker 2: church could not be held legally liable. There are two
Speaker 2: main types of legal liability in these claims. One is
Speaker 2: called negligence, and for negligence we have to prove that
Speaker 2: an institution breached its duty of care to a child.
Speaker 2: So if we can't find the evidence that a duty
Speaker 2: of care was breached in other words, there had been
Speaker 2: prior complaints, we cannot a claim that the institution was negligent.
Speaker 2: That used to leave a second legal hook, called a
Speaker 2: vicarious liability, where we don't have to prove the church
Speaker 2: was at fault at all. We have to show that
Speaker 2: the relationship between the pedophile or the offending priest, for example,
Speaker 2: and the institution was one of employment. Now, up until
Speaker 2: this High Court decision in Canada in nineteen ninety nine,
Speaker 2: the UK twenty ten to twenty twelve and subsequently have
Speaker 2: found that a Catholic archdioces, for example, can be vicariously
Speaker 2: liable in that the relationship between the offending priest and
Speaker 2: the institution is one that is akin to an employment relationship.
Speaker 2: The High Court didn't agree with that everyone assumed the
Speaker 2: High Court would take on the law from all the
Speaker 2: other common law jurisdictions. That didn't happen. The High Court
Speaker 2: agreed with the Catholic Church. Priests, brothers, nuns, Catholic clergy
Speaker 2: are not employed. Therefore there's no vicarious liability and if
Speaker 2: we don't have negligence, there is no claim.
Speaker 1: Right, okay. And so when that decision came down, obviously
Speaker 1: it would have affected the individual bringing the case, But
Speaker 1: what about other people in a similar position. What's the
Speaker 1: precedent that was set there?
Speaker 2: So not only does it affect people who were assaulted
Speaker 2: by Catholic clergy, you know, Christian brothers and nuns and
Speaker 2: so on, there is a huge cohort of people who
Speaker 2: are volunteers, for example, that have also now been carved out.
Speaker 2: So for example, the Scouts, Salvation Army, there are volunteers
Speaker 2: in all sporting organizations. Basically wherever children gather, pedophiles will go.
Speaker 2: So there's another huge cohort of saviva victims who have
Speaker 2: no access now to justice. Example, I use if you
Speaker 2: have two brothers from one family going to a Christian
Speaker 2: brother's primary school. One is raped by a Christian brother,
Speaker 2: the other by a lay teacher. The boy that's raped
Speaker 2: by the lay teacher will have access to justice, but
Speaker 2: not the other. So we have two tiers of justice.
Speaker 2: Since that High Court decision, we have had many many,
Speaker 2: a third of my practice alone, a third of people
Speaker 2: have been directly impacted by the Bird decision.
Speaker 1: And so when you look at the way the Catholic
Speaker 1: Church approached this, the defense that they mounted, and the
Speaker 1: way that they took that all the way to the
Speaker 1: High Court, what does that say to you about the
Speaker 1: way this particular institution is thinking about how to respond
Speaker 1: to its responsibility when it comes to child sexual abuse
Speaker 1: that's happened.
Speaker 2: What the churches have demonstrated is that they do not
Speaker 2: give a rats about victims of They treat these as
Speaker 2: commercial matters. There is no compassion, it's everything, but you
Speaker 2: know that Christianity that they are supposed to practice. And
Speaker 2: on that point, each year, the beginning of the legal year,
Speaker 2: beginning of the judicial year, there is something called a
Speaker 2: red mass. Members of the legal profession, parliamentarians who are
Speaker 2: Catholics attend this maths. And what I find quite extraordinary
Speaker 2: as we have the Catholic Church engaging lawyers to be
Speaker 2: highly legalistic, highly adversarial to further crush these victims survivors.
Speaker 2: We have Bishop Vincent earlier this year saying, and I'll quote,
Speaker 2: as we pray for the guidance of the Holy Spirit
Speaker 2: on our work at this Red Mass, we recommit ourselves
Speaker 2: to God's vision of justice, mercy and the fullness of
Speaker 2: life for all humanity.
Speaker 3: Let it be a time in which we as a
Speaker 3: church reclaim the powerlessness of Christ and the fundamental ethos
Speaker 3: of care for the week, justice for the excluded. Then
Speaker 3: we can truly be servants of justice, the conduits of
Speaker 3: mercy and signs of hope.
Speaker 2: For now, it's not for all humanity at all. You know,
Speaker 2: there is no justice often for the vulnerable, the harmed,
Speaker 2: the psychiatrically harmed, victim survivors.
Speaker 1: Coming up justice for victim survivors in one small part
Speaker 1: of the country, and so Judy. When the High Court
Speaker 1: found in the Catholic churches favor, it called on state
Speaker 1: and territory governments to act that it was our parliaments
Speaker 1: that needed to address this. It was now out of
Speaker 1: the Court's remit. Recently we have started to see that begin.
Speaker 1: So tell me about what's been happening.
Speaker 2: Sure, you're right, the High Court has handballed, if you like,
Speaker 2: or suggested that state and territory parliaments now deal with
Speaker 2: this problem. In other words, we need legislation to reverse
Speaker 2: that High Court decision. The Act Parliament passed a bill
Speaker 2: unopposed a couple of weeks ago, and this bill, I
Speaker 2: won't call it the big beautiful bill, but it is
Speaker 2: a bill that does tick all the requisite boxes for
Speaker 2: victim survivors.
Speaker 4: This bill is required to ensure survivors who are abused
Speaker 4: by people in positions akin to employment are able to
Speaker 4: access justice. It is necessary because without it, institutions that
Speaker 4: have had children abusing their care can avoid responsibility for
Speaker 4: the actions of those they effectively employed.
Speaker 2: So first thing this bill does is it will apply retrospectively.
Speaker 2: It has to do otherwise it's futile. It redefines the
Speaker 2: role of someone who is an employee and it says
Speaker 2: I'm not going to use a word for word, but
Speaker 2: it says basically, a person who is akin to an
Speaker 2: employee is a person who carries out the role of
Speaker 2: the purposes of the institution and for the benefit of
Speaker 2: the institution.
Speaker 4: We are discussing today will have the effect that children
Speaker 4: who are abused by people carrying out a role in
Speaker 4: the organization or activities for the benefit of the organization
Speaker 4: can access justice.
Speaker 2: Now, that could be someone who's a volunteer. It could
Speaker 2: be a priest, it could be a teacher, it could
Speaker 2: be anyone belonging to an organization or institution. No particular
Speaker 2: group is carved out. Every case will be taken on
Speaker 2: its facts, and the court will determine whether that person
Speaker 2: is akin to an employee and whether or not the
Speaker 2: institution provided that person with the power of the authority
Speaker 2: and the occasion to commit the crime. The other really
Speaker 2: critical element of the Act Bill is it gives the
Speaker 2: courts the power to throw out or set aside any
Speaker 2: settlements that have been unfair and unjust on the back
Speaker 2: of that Bird decision. So that's what we've got in
Speaker 2: the Act Bill, and it's a model bill, I would
Speaker 2: say for the whole country.
Speaker 1: Okay, So it sounds like then, at least in cambro
Speaker 1: there will be this avenue for survivors. But where is
Speaker 1: the rest of the country up to When it comes
Speaker 1: to looking at legislation.
Speaker 2: Victoria, our Attorney General made an announcement a few weeks ago
Speaker 2: that there will be a bill tabled before the end
Speaker 2: of the year. The announcement did say that it would
Speaker 2: be retrospects and it would have what we call the
Speaker 2: set aside provision in it, so for those who have
Speaker 2: settled unfairly and unjustly on the back of bird can
Speaker 2: have another go. What we don't know yet is how
Speaker 2: the Victorian bill is going to look at volunteers. So
Speaker 2: we're hoping to get that bill at well. We've been
Speaker 2: told we'll get the bill before the end of the year,
Speaker 2: so we're going to wait and see the wording of it.
Speaker 2: It should and must I'd say not carve out volunteers
Speaker 2: because that is a huge cohort of pedophiles. So that's
Speaker 2: only two jurisdictions. We haven't heard anything from New South Wales.
Speaker 2: What I will say is that New South Wales, South Australia,
Speaker 2: Tasmania and the Northern Territory have existing legislation vicarious liability legislation.
Speaker 2: But the problem with it it is only prospective. It's
Speaker 2: not retrospective, so it's of no use to anyone that
Speaker 2: was assaulted before the bill was asked what those for
Speaker 2: jurisdictions need to do is they need to amend those
Speaker 2: pieces of legislation, make them retrospective, including that set aside provision,
Speaker 2: and make sure that they don't carve out, as I say, volunteers,
Speaker 2: the examples been set by the Act. They're very brave
Speaker 2: in the Act. They've stood up, proud and tall and
Speaker 2: supported survivor victims. So states do need the courage to
Speaker 2: stand up. This is what we expect of our parliamentarians
Speaker 2: to stand up and do the right thing. By thousands
Speaker 2: and thousands of very traumatized people who were sexually assaulted
Speaker 2: and rapist children.
Speaker 1: And you've spent your life fighting for those people, for
Speaker 1: people who were assaulted, often by people associated with the
Speaker 1: Catholic Church. And so as a result, you've also seen
Speaker 1: the ways in which this institution fights back. So when
Speaker 1: it comes to this legislation in the Act and potential
Speaker 1: other legislation in other states, how do you think the
Speaker 1: Church is going to respond to these laws? What is
Speaker 1: the next move for them?
Speaker 2: Well, Monce's legislation is legislation, but of course they will
Speaker 2: continue vigorously fighting and defending every individual claim. So each
Speaker 2: claim is a battle, a huge battle, and they fight
Speaker 2: it to the end. It's okay we fight it when
Speaker 2: I'm for never giving up, but they shouldn't be such
Speaker 2: big battles. Bishop Bird should never have taken that all
Speaker 2: the way to the High Court. The costs, the costs,
Speaker 2: the financial costs, the people. You know, some of our
Speaker 2: clients when they found out, became suicide or we had
Speaker 2: one client who was on suicide watch for weeks. It
Speaker 2: is causing an enormous amount of harm and there are
Speaker 2: a lot of people involved. I estimate, I don't know
Speaker 2: the actual number, but I estimate in Victoria alone there
Speaker 2: would be about two thousand people who have been impacted
Speaker 2: by the Bird decision. So what does that mean around
Speaker 2: the country. It's very hard to say, but many thousands
Speaker 2: of people. And it has created, as I say, this
Speaker 2: dual system of justice or injustice as it turns out.
Speaker 1: Well, Judy, thank you so much for your time.
Speaker 2: Great, thank you very much.
Speaker 1: Also in the news, the Liberal Party has scrapped net zero,
Speaker 1: as widely expected. One source told the ABC the party
Speaker 1: would keep language in its climate policy that suggests that
Speaker 1: zero would be a welcome outcome, but will abandon it
Speaker 1: as a formal goal. The move follows the National's earlier
Speaker 1: decision to walk away from the target. The Liberal Party
Speaker 1: will meet with them National's colleagues on Sunday. And Neo
Speaker 1: Nazi Thomas Saul has been released from prison. The thirty
Speaker 1: two year old was deemed too dangerous to live in
Speaker 1: the community just two months ago. It was also found
Speaker 1: at the time that there was a risk he could
Speaker 1: interfere with witnesses in a criminal case if given the opportunity.
Speaker 1: Saul faces twenty one charges, including violent order and a fray,
Speaker 1: and is one of more than a dozen people charged
Speaker 1: over the attack on Camp Sovereignty, a sacred place for
Speaker 1: First Nations people. I'm Ruby Jones. This is seven am.
Speaker 1: Thanks for listening.