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Legal Privilege:
‘Ellis defence’ will no longer block victims from suing churches, other organisations for child sex offences
news.com.au
Tom Rabe, Phoebe Loomes
January 1, 2019

Source

‘Ellis defence’ will no longer block victims from suing churches, other organisations for child sex offences The Catholic church’s favoured “Ellis defence” has been overturned, allowing survivors of sex abuse to sue.
 
 
a pathway to justice for survivors of abuse that they haven’t had in the past

 

Victims of child sex abuse in NSW can now sue the church after the state government removed a legal roadblock used by institutions to avoid compensating survivors.

From January 1 churches will no longer be able to use the “Ellis defence” as a way of avoiding paying compensation to victims.

In 2007 former altar boy John Ellis lost a landmark civil action against the Catholic Church over child sex abuse after it successfully argued it had no “legal personality” and was not a proper defendant.

Mr Ellis is relieved survivors will now be able to “hold institutions to account”.

“We are now going to see a pathway to justice for survivors of abuse that they haven’t had in the past,” Mr Ellis told AAP.

“It’s been a long, long battle,” Mr Ellis said.

Removing the legal defence was a recommendation of the Royal Commission into Institutional Responses to Child Sex Abuse.

NSW Attorney-General Mark Speakman said the changes to the law meant all survivors of child sex abuse had the same access to compensation through civil litigation — no matter the organisation responsible.

Pope Benedict XVI with Cardinal George Pell in 2008. The Church will no longer be able to invoke the ‘Ellis defence’ in legal proceedings against their organisation. Mark Baker Pope Benedict XVI with Cardinal George Pell in 2008. The Church will no longer be able to invoke the ‘Ellis defence’ in legal proceedings against their organisation. Mark BakerSource:AAP

“We are changing the power balance so survivors can hold institutions accountable for horrific abuse and move forward with their recovery,” Mr Speakman said in a statement.

ELLIS DEFENCE EXPLAINED

Previously, the Catholic Church had invoked the controversial Ellis defence, which allowed the organisation to succeed in all claims of sexual assault against it. This was because the Catholic Church did not technically exist as a legal entity.

The “Melbourne Response Program” was instead set up by the church — its architect was Cardinal George Pell. This system meant that those accusing the church of childhood abuse could not receive payments through the court, but would be paid out by the church. For victims to receive any compensation from the church, they were required to waive their right to sue.

According to Pell, the payments were made “based on justice.”

The Royal Commission findings from testimonies and recording keeping (which the Church directed be kept to a minimum) told a story of church concerns with reputation and finance as opposed to pastoral care.

The church capped the payments for victims at $50,000. This was later lifted to $75,000. According to The Age, it is estimated this saved the church up to $62 million dollars. Ninety-three per cent of the claims were to do with misconduct of priests. The average payment for those paid out by the church was $46,000, whereas those who took them to court averaged a settlement of $270,000 in 2015.

“I have tried to be prudent with money,” Cardinal Pell testified to a state inquiry in 2013. “But my record shows that I have acted compatibly with the general standards of the community and I have tried to be generous.”

 

 


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