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The end of the Ellis defence

NEWS | Tess Holgate
Wednesday 24 February 2016

Far-reaching change in legal tactics by churches has meant that they can no longer skirt responsibility for the crimes or debts of their predecessors.

In late 2015 the Catholic Church of Australia passed new guidelines for church authorities in responding to civil claims for child sexual abuse. They came into effect on January 1, and require the Catholic Church to provide someone for victims of child abuse to sue, if the perpetrator of the crime is deceased.

In an historic outworking of these new guidelines, the Catholic Bishop of Ballarat Paul Bird has agreed to be sued for sex abuse claims dating back to the 1960s, as a stand-in for his predecessor, James O’Collins.

Bishop Bird has volunteered as a defendant, which will allow victims to bring lawsuits against the Ballarat diocese.

Previously, it had been difficult for victims to get their matters heard in court, and many complaints have been settled out of court. In large part this is thanks to the Ellis defence (named for child abuse victim John Ellis who in 2004 lost – on appeal – a lawsuit against the Catholic Church in Sydney and the then Archbishop George Pell, when the court found that neither the Archbishop nor the body corporate of the church could be held responsible for the actions of his abuser, Father Duggan), a loophole that has allowed churches to be considered non-entities, meaning that they cannot be sued as a single entity.

Though the Ellis defence has not been used in any civil case since John Ellis, the threat of it has always stood as a powerful deterrent for any victims seeking compensation.

Bishop Bird appeared at the Royal Commission in the last week of February, but told the ABC, “In some way, the bishop carries the history of the community with them. I’ve inherited the history of the community, for good and for ill, and therefore should be ready to address that history in so far as it needs to be addressed,” Bishop Bird said.

In the Anglican Church, a financial dispute between the Diocese of Bathurst and its bankers produced a similar outcome.

Diocesan representatives argued that the Diocese was not a legal entity and was therefore unable to enter into contracts (a form of the Ellis defence). In late 2015 Justice David Hammerschlag rejected this, and ruled that the church was liable for its debt, and was required to find the money to repay it.

In December, Bishop Stuart Robinson issued a pastoral letter to all Anglican churches in the Diocese of Goulburn-Canberra concerning changes to the conditions under which churches are able to borrow funds from banks.

“Australian banks previously accepted an ‘episcopal pledge’ (a general charge over all Diocesan assets including property, cash and trust accounts) from a Diocese as sufficient security for a loan facility. Banks now require loans to be secured against clearly identified assets and properties rather than a general pledge,” said Bishop Robinson.

Abandoning the Ellis defence means that churches now have to take responsibility for their debts and damages caused by their clergy workforce.

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