Page 3953 - Week 10 - Thursday, 20 September 2018

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Civil Law (Wrongs) (Child Abuse Claims Against Unincorporated Bodies) Amendment Bill 2018

Debate resumed from 16 August 2018, on motion by Mr Ramsay:

That this bill be agreed to in principle.

MR HANSON (Murrumbidgee) (4.11): The Canberra Liberals will be supporting this bill. The bill is intended to implement recommendation 94 of the Royal Commission into Institutional Responses to Child Sexual Abuse in its Redress and civil litigation report.

There are several clauses but one purpose, that is, to ensure that victims are able to sue a readily identifiable entity, or what is called a “proper defendant”, to meet claims from a personal injury that arises from institutional child abuse. It is a purpose that we support and a bill that we believe will provide a recourse that some have been denied.

The bill addresses the situation that arose in the case of Trustees of the Roman Catholic Church for the Archdiocese of Sydney and Ellis & Anor which led to the creation of the so-called “Ellis defence”. It is worth noting that while that is a common name for the sort of defence that this bill seeks to remove, it was not a defence John Ellis raised; it was a defence used against him.

In the Ellis case it was held that while all the property was held by the trustees in each diocese, who were each incorporated under 1936 New South Wales legislation, those trustees were not responsible for the conduct of individuals. Therefore there was no legal entity available to be sued apart from the particular offending individuals themselves. In John Ellis’s case, that person was dead. This defence has been affirmed, or at least not overturned, in other cases involving bodies such as schools. This loophole was discussed at length at the royal commission, which recommended its closure. That is now being addressed across the country, and this bill does that.

As we always do, we have consulted on this bill with stakeholders, and I thank those who provided feedback. As well as legal professionals, I note the public comments and published position of the Archbishop of the Catholic Archdiocese of Canberra and Goulburn, who said that they “always proffered”—that is, they put up—“a proper defendant when responding to any claims”. Sydney Archbishop Anthony Fisher recently said in a statement:

We support having a clear entity as a proper defendant, for claims.

Many legal commentators have also called for redress to this defence.

The scrutiny report made several comments, and I thank the Attorney-General for providing his response. I agree with those responses. I also note the committee’s comment that the bill could be applied to broad applications of associations. We accept the government response on this point, in particular, and we are prepared to err on the side of caution with these responses to the royal commission.

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