Ellis, John --- "Behind the headlines: A personal reflection on the Royal Commission" [2019] PrecedentAULA 67; (2019) 155 Precedent 4

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BEHIND THE HEADLINES

A PERSONAL REFLECTION ON THE ROYAL COMMISSION

By John Ellis

By the time the Royal Commission into Institutional Responses to Child Sexual Abuse was announced by Prime Minister Julia Gillard on 12 November 2012, it had been just on five years since the High Court refused me special leave to appeal the NSW Supreme Court’s decision dismissing the proceedings I had brought against the Catholic Archdiocese of Sydney for the sexual abuse I suffered as a teenager and young adult, at the hands of a catholic priest.

‘TOWARDS HEALING’ – TAKING ON THE CATHOLIC CHURCH

Over those years, my eyes had begun to open. A decade earlier, when I naively entered the Catholic Church’s ‘Towards Healing’ process seeking accountability from the Church, I accepted without question that the Church strove towards the principles set out in its ‘Towards Healing’ protocol: truth; humility; healing for the victims; assistance to other persons affected; a just response to those who are accused; an effective response to those who are guilty of abuse; and prevention of abuse. At that time, I was a practising catholic.

I staggered punch-drunk through the ‘Towards Healing’ process and litigation against the church for the next six years. I was blocked, belittled and re-traumatised. I was changed. Yet through all of that, I had no real understanding of how widespread and deep-rooted the scourge of child abuse had been in our nation; how morally bankrupt not only the Catholic Church, but also a host of other institutions, had been; and how entrenched the culture of cover-up and protection of perpetrators and their institutions was. I went all the way to the High Court believing that I had been one of a few victims of this type of abuse, in the wrong place at the wrong time, unlucky.

During World Youth Day in Sydney in 2008, Pope Benedict XVI, as leader of the Catholic Church, promised that: ‘[v]ictims should receive compassion and care, and those responsible for these evils [would] be brought to justice’.^[1] This was, he said, ‘an urgent priority to promote a safer and more wholesome environment, especially for young people’.^[2] He referred to the Catholic Church in Australia’s then engagement in a process ‘of purification’ towards bringing about ‘healing’, ‘reconciliation’ and ‘fidelity to the moral demands of the Gospel’.^[3]

OUR WORK WITH SURVIVORS – A DECADE IN THE WILDERNESS

In the years that followed, my wife Nicola and I represented hundreds of victims of abuse involving the Catholic Church and other institutions. Our first clients were a group of 60 of the more than 100 men who had been abused by John Denham, a priest in the Maitland-Newcastle diocese. Even then, we believed that once those claims were resolved, that would be the end of this part of our work. We were wrong. More victims came forward and the stories of how the institutions had responded became increasingly horrifying.

Alongside this personal experience, the reports of the various Irish Commissions of Inquiry^[4] were published, and first Victoria and then NSW commissioned inquiries into aspects of abuse within the Catholic Church.

Our work also brought us into contact with ‘Forgotten Australians’^[5] and we became aware of the earlier Forde Inquiry in Queensland (1998–1999), the Commonwealth Senate Inquiry (2004) and the Mullighan Inquiry in South Australia (2008). While these had touched on the extent of abuse in care and led to the 2009 national apology to Australian-born children and former child migrants in care by Prime Minister Kevin Rudd, few practical benefits ensued for survivors. There were meagre redress schemes in Queensland, Western Australia and Tasmania, and some institutions, such as the Salvation Army, adopted their own redress schemes. The legal systems of all states and territories had done little, however, to provide survivors of abuse with any realistic access to justice. The state of NSW was particularly ruthless in defending claims brought by survivors.^[6]

WHY WE NEEDED A NATIONAL ROYAL COMMISSION

The gross immorality of institutions who had the care of children (including state governments, whose moral responsibility for their vulnerable citizens was arguably greater than that of any of the religious institutions) in using the processes of the legal system to deny the claims of survivors eventually made a national Royal Commission inevitable. Through the course of 2012, I became convinced that this would come about.

The Irish jurist and nationalist politician Laurence Ginnell wrote in his 1894 text on Brehon Law (early Irish law), in a commentary on the English legal system’s efforts to separate law and morality:

‘Theirs is trouble ill-bestowed and vainly, because its object is unnatural. Until human nature itself is changed, law and morality will, in spite of lawyers’ theories, be in fact and be generally considered closely related.’^[7]

There was (well before 2012) a great moral imperative for our nation to hold a thorough Royal Commission with two unifying themes. First, it had to be a public inquiry: the nation needed to know about its findings in all their horror. Secondly, it had to bring about real change by achieving justice for survivors, and by aligning law with morality.

In announcing the Royal Commission, Prime Minister Gillard was clear about the work she wanted it to do and the government’s commitment to take the time to get it right. She said:

‘This I hope will help the healing, but I specifically hope that its recommendations will help us ensure that this never ever happens again ... I think we all want to do everything we can to ensure that we do not see in the future institutions fail to respond if there are allegations of child abuse in their midst.’^[8]

I was mindful of the 10 years of the Irish Inquiries. Given the breadth of the suggested terms of reference and what was already known about the extent of abuse in Australia and the number of institutions involved, it was clear that an Australian Royal Commission would need to be extremely focused and somewhat selective in the way it approached its work. It was unlikely that it would be given the decade or so needed to explore every issue.

MY PERSONAL EXPERIENCE OF THE ROYAL COMMISSION

It became clear early in the life of the Commission that there would be at least three major and equally important aspects of the work: private sessions with survivors; public hearings; and a research agenda.

The selection of the Commissioners was inspired. The Prime Minister had spoken about the need for a range of expertise, and the need for more than one Commissioner. As the Commission proceeded, the number of survivors requesting private sessions surprised most of us. The Commission committed to having private sessions with all survivors who had registered with it by the cut-off date. Had there not been six Commissioners, keeping this commitment would not have been possible.

I had the opportunity to engage with each of the Commissioners. Each of them approached their work from a foundation of empathy and validation. In private session, they were attentive, interested, engaged, affirming of the experience of the survivors, and very conscious of their role as the nation’s ears as each survivor bore witness. The survivors I attended private sessions with left feeling heard, validated and cared for with compassion. The ‘thank you’ card provided after the session has been kept by many as a treasured possession. The ‘Message to Australia’^[9] remains as a tribute to the survivors and a public record of their experiences.

At first, I received the news of the Royal Commission in a professional capacity: in terms of what it would mean to the many survivors that we had worked with. It was many months before I registered with the Commission on my own behalf. Like many survivors, I saw my own experiences as insignificant in the face of the enormous destruction of other lives over countless decades. I did eventually register and I attended a private session with the Hon Justice Peter McLellan AM and Gail Furness SC. After many years of focusing on other survivors and advocating for them to achieve meaningful responses from institutions, it was sobering to reflect on how shameful the response of the Catholic Archdiocese of Sydney to my own abuse had been.

Case Study 8

In March 2014, I was a witness in Case Study 8. Unlike most of the other case studies (which focused broadly on a particular institution or an aspect of the responses of institutions), this case study was directed exclusively at my own experience of both ‘Towards Healing’ and civil litigation.

It was a long two weeks. Preparing and giving my evidence was harrowing. Many times, I wished that I didn’t have to do it. The Prime Minister had identified how the biggest healing for some people was a public airing of what had happened to them and that for others telling their story publicly would be their version of hell.^[10] As an intensely private person, I fell into the latter category. In hindsight, I see how pivotal it was that I did give my evidence in public. From the many people who have approached me out of the blue over the last six years, I see now what an obligation I had to tell my story in that most public of ways on behalf of the tens of thousands of survivors who could not do that. It was an honour and a privilege to do so.

Sitting through the dissection of the five years of the ‘Towards Healing’ process and the court cases, and having each person involved confronted with their part in the denial of justice was validating. However, I cannot say that I remember much of the detail. It was an intense and exhausting experience. George Pell gave evidence on the last few days. His statement of regret at the conclusion of the hearing without looking at, or addressing, me (to the muffled urges of those attending the hearing to do so) was surreal. I met with George privately before he left for Rome and the rest is now history.

TOWARDS A MORAL MODEL OF JUSTICE – HOW THE ROYAL COMMISSION WENT ABOUT ITS WORK

One significant aspect of the case studies (both my own and those in which I represented other survivors^[11]) was having the Commission address what Nicola and I had been exploring for nearly a decade – what does true justice for survivors require and how can a process for legal accountability of institutions avoid the re-traumatisation that many survivors had experienced when seeking such accountability?

Our learning had been that a process based in respect, integrity, humility and truth can be deeply satisfying for survivors and can lead to meaningful and just responses. Such a process can aspire to generate profound turning points in survivors’ lives. The respect extended to survivors by the Commission was extraordinary. Through each stage of its work, the contribution of survivors was valued and the engagement with them was as far as possible tailored to individual needs, choices and preferences.

As in our work, the Commission needed to manage expectations. Not every issue could be explored in detail. Not every survivor who wanted their story told or their institution publicly named got their wish. Rather the Commission, of necessity, needed to select its case studies based on the issues necessary to enable it to complete its work and make meaningful recommendations. It had to choose representative cases. At the same time, it sought to give survivors a focus on the process rather than any particular outcome.

Meaningful outcomes, of course, were important for the Commissioners. This was not to be yet another inquiry whose final report would gather dust in the basement of an archives repository. To ensure this, it was vital for the Commission to conduct its work in the public eye and to inform the community of its findings. The Commission had a head start in this regard. Its very existence owed much to the persistence and interest of the media. The Commission harnessed this visibility to ensure that governments receiving its reports and recommendations would not be able to hide from the weight of public opinion to fully implement those recommendations.

All public hearings were live-streamed. Some, like case study 8, were televised on the ABC. All were widely reported in the national press. Jurisdictional and geographical barriers were broken down. When I arrived in Western Australia shortly after my public hearing, acquaintances who had previously known nothing of my work or my personal history conveyed what the Royal Commission meant to them personally, or to someone close to them. Communities across the nation started to have different conversations. Survivors, whether they had ever disclosed their abuse or not, felt more accepted and held their heads higher. The National Apology on 22 October 2018 – a recommendation of the Commission – was a culmination of this sense of shared dignity and self-respect. While I knew very well about vicarious trauma, this experience of vicarious recovery and national healing was an unexpected outcome. Most likely, it was not unexpected to the Commission.

MEANINGFUL OUTCOMES

To ensure that necessary reforms did not need to await the finalisation of the Commission (and to allow the Commission to monitor the responses of governments and institutions to its recommendations), reports on each case study were published promptly after the conclusion of the case study (unless doing so may have prejudiced an ongoing criminal investigation). The Commission scheduled a series of public hearings in the last year of the Commission to review the responses of various institutions.^[12]

The Commission published an interim report on 30 June 2014. It issued its reports relating to major legal reforms as early as possible. These included reports on Working with Children Checks (2015), Redress and Civil Litigation (2015) and Criminal Justice (2017). The process to produce the Redress and Civil Litigation report started in the first year of the Commission. It circulated four issues papers, invited submissions, engaged in a series of roundtables, commissioned research, issued a consultation paper and conducted a public hearing (upon which all six Commissioners sat) before issuing its final report in September 2015. That report recommended, inter alia, the establishment of a National Redress Scheme and set an implementation timetable designed to have the Scheme in place before the final reporting of the Commission.

Unfortunately, the Scheme was not implemented until 2018. The process towards reforms in relation to criminal justice and civil litigation in each state and territory did commence during the life of the Commission, although many of the legislative changes were implemented only after the final reporting. Sadly, the Commission’s lofty goal of a consistent national approach to the various issues has not been achieved. For example, while most jurisdictions have now enacted legislation to remove limitation periods for childhood sexual abuse, each state has a slightly different regime. Encouragingly, both Queensland and Western Australia have legislated to allow deeds entered into before the removal of the limitation period to be set aside where it would be just and reasonable to do so. It remains to be seen how the courts will implement these provisions. A restrictive interpretation of the Queensland legislation is set to go on appeal this year.^[13]

Both the National Redress Scheme and the civil reforms are important. The Scheme provides a safety net for persons who would not have a viable civil claim despite the civil reforms, and also provides an alternate path to redress for those who do not wish to engage in a civil claim process. The Scheme has been criticised (including in relation to setting the cap at $150,000 rather than the $200,000 recommended by the Commission) and is still in a process of development and review. Many institutions have not yet joined the Scheme and the provisions for governments to be the funder of last resort for defunct institutions are restrictive and do not provide the hoped-for safety net for many survivors, particularly survivors of defunct sporting organisations.

While some of the civil reforms (such as the removal of limitation periods and the much-needed legislation to remove the option for institutions to plead an ‘Ellis defence’) have already begun to remove barriers to justice for many survivors, other reforms (such as new provisions creating a reverse onus of proof in relation to the liability of institutions for their employees), where implemented, are prospective only and will not benefit survivors of historical abuse. These reforms, of course, are still valuable in terms of the aim of reducing the incidence of child sexual abuse because they encourage institutions to undertake adequate risk assessments and implement effective child protection policies.

DEMISE OF THE ‘ELLIS DEFENCE’

It was particularly personally satisfying to see the ‘Ellis defence’ consigned to the scrapheap of legal history in many jurisdictions. This was the most immoral of legal defences. It was used strategically by many institutions that were set up and structured in a similar manner to the Catholic Church. The legislation to provide for liability of such unincorporated entities (mostly with related corporate personality to hold their property) finally took away some of the pain and disappointment of the failure of the High Court to see the significance and injustice of the Catholic Church’s position. Until then, it had been cold comfort to have been told privately by a former senior judicial officer that he considered that decision to have been an opportunity lost for the nation. I am grateful to all those who played a part in having the Royal Commission established, to the Commissioners and to the politicians who have implemented the recommended reforms for righting this wrong. After years of regret and feeling that I had helped the Catholic Church close the doors to justice for many survivors, I am now finally able to feel proud for having stood in my truth and adhered to the principle that doing what is right is not to be judged by the immediate response.^[14] That this has eventually led to a just outcome has boosted my faith in our legal system and in our nation.

WHERE TO FROM HERE? OUR NATION IN THE AFTERMATH OF THE ROYAL COMMISSION

There remains much to be done to heal the trauma of decades of child sexual abuse within institutions and to achieve justice for the survivors of that abuse. We have not yet even begun to face the frontiers of inter-generational trauma or proper recognition of the impacts of abuse on family members and communities. There is much work to be done to put in place better support services for survivors. There are many recommendations of the Royal Commission still to be implemented and we can expect push-back from some institutions and some attempts to hijack the agenda.

While recognising these future challenges, I cannot help but be encouraged that we will take these on as a nation which has begun to heal itself, to bring together the precepts of law and morality and to move towards true justice for survivors of institutional abuse. We could not have arrived at this point without the Royal Commission into Institutional Responses to Child Sexual Abuse.

John Ellis is a Principal of Ellis Legal, a firm he established with his wife Nicola six years ago to work exclusively for survivors of abuse by clergy and personnel of other institutions. As a survivor of clergy abuse, John brings a lived understanding of the practical and emotional challenges involved in holding powerful institutions accountable. PHONE [phone] EMAIL [e-mail].

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^[1] Words of Pope Benedict XVI during visit to Sydney for World Youth Day, 19 July 2008: Towards Healing: Principles and procedures in responding to complaints of abuse against personnel of the Catholic Church in Australia, January 2010, 2

^[2] Ibid.

^[3] Ibid.

^[4] See <http://www.childabusecommission.ie/> .

^[5] The title of the August 2004 Senate Community Affairs Reference Committee report applied to the estimated 500,000 children and child migrants who experienced care in institutions or outside a home setting in Australia during the 20th century: see <https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Completed_inquiries/2004-07/inst_care/index>.

^[6] See Case Study 19, which examined the conduct of the civil proceedings brought by 15 former residents of Bethcar Children’s Home, Brewarrina, against the state of New South Wales between 2008 and 2013.

^[7] L Ginnell, The Brehon Laws: A Legal Handbook, T Fisher Unwin, 1894, Chapter VII, Section II.

^[8] Department of Prime Minister and Cabinet, Transcript of Press Conference, id. 18906, Canberra (12 November 2012) <https://pmtranscripts.pmc.gov.au/release/transcript-18906>.

^[9] On display at the National Library of Australia and in all state and territory libraries.

^[10] See note 8 above.

^[11] Case Study 23 (Knox Grammar School), Case Study 34 (Brisbane Grammar School and St Paul’s), Case Study 43 (Maitland-Newcastle Diocese) and Case Study 44 (Parramatta and Armidale Diocese).

^[12] Case Studies 47–56.

^[13] TRG v The Board of Trustees of the Brisbane Grammar School [2019] QSC 157.

^[14] ‘It’s the action, not the fruit of the action, that’s important. You have to do the right thing. It may not be in your power, may not be in your time, that there’ll be any fruit. But that doesn’t mean you stop doing the right thing. You may never know what results come from your action. But if you do nothing, there will be no result’: M Gandhi, Harijan, Vol. 7, No. 4, 1946.