Judy Courtin Legal

The High Court of Australia fired a merciless arrow through the hearts of victims/survivors of institutional child sexual abuse throughout Australia.

Please write to:
>> The Attorney General in your state or territory.
Here is a list of their names and email addresses, or
>> You can use this pro forma letter. Just add the name of the Attorney General in your state or territory, the date and your name and address.

Case: Bishop Paul Bird and DP (A Pseudonym) [2024] HCA 41

The Court ruled that if a priest, for example, raped a child then the institution to which he belonged could not be found vicariously liable for that crime. This is because that paedophile priest was not ‘employed’ by his own institution. This contrasts starkly with an ‘employed’ school teacher who sexually assaults a child. Because this teacher is ‘employed’, the State can be found vicariously liable. This High Court decision marked a day of mourning for all victims and their families.

Bishop Paul Bird publicly thanked the High Court for their decision.

The Bishop did not apologise to the victims in his Diocese who had been traumatised all over again by this court decision. Neither did he display any compassion for these victims and their families.

This very conservative decision of the High Court flies in the face of much earlier decisions in the UK and Canada. In 1999, Canada held that a Catholic institution was vicariously liable for the sex crimes of its priests. The same occurred in the UK in 2010. It is also out of sync with New Zealand and other Common Law countries.

Our High Court had a choice to expand the law on vicarious liability to be in line with the rest of the Common Law countries. Instead, it chose to abandon Australian victims/survivors of institutional child sexual assaults.

The Supreme Court of Victoria and the Court of Appeal were both satisfied that the Diocese of Ballarat was vicariously liable for the sexual abuse perpetrated by its priest.

Yet the hierarchy of the Church, which extols the biblical teachings of compassion for our most vulnerable, preferred (deliberately chose) to take the matter all the way to the High Court and rely on the ‘black letter’ of the law to absolve themselves of responsibility and protect their assets.

So, what does this mean?

If our client cannot provide the evidence that the church knew about a paedophile priest before our client was sexually assaulted, there can be no claim. There can be no justice. The church, once again, gets away with it.

What might all of this look like in reality?

Let’s look at the example of Ridsdale, the prolific paedophile priest of the Diocese of Ballarat, whom we say would have committed up to a thousand sex crimes against children from the early 1960s until his incarceration in 1994.

The Diocese claims it knew nothing of Ridsdale’s crimes before about 1972.

This High Court decision means that without knowledge (evidence) of prior offending, you will not be able to sue the Church. For example, and as acknowledged by the Royal Commission, much of the incriminating evidence about Ridsdale’s offending, prior to 1972, has been destroyed.

So, anyone who has suffered sexual abuse by Ridsdale before 1972 will be denied the justice and compensation to which they are entitled, because the Church has only admitted knowledge of Ridsdale’s offending from 1972 onwards.

Not only can there be no justice for these people, but the Diocese – by taking this issue to the High Court in the first place and now relying on its decision – is wittingly causing a whole new round of grave abuse and trauma of already highly traumatised and vulnerable people.

This behaviour of the church is unconscionable, immoral and wreaks of greed and abject cruelty. The church continues to abandon victims.

Without prior knowledge of the offender, a priest can now go into a family home to provide pastoral care, which is part of his job, and whilst wearing his clerical collar, rape a child in his own bed, and there will be no justice. A priest can rape a child in his own church, but if the institution had no prior knowledge of offending, there can be no justice.

All of this because the High Court claims there is no employment relationship between a priest and the institution into which he was ordained, appointed and paid to do the work of the church.

Action

This highly consequential retrograde decision of the High Court means victims and their families must once again find the courage to fight for reforms.

Advocates must also dust off their placards and hit the campaign trail again.

In 2011, as part of a broader campaign for urgent reform, I had my first opinion piece published in The Age:  Clergy Victims Need Justice Now – read here – in which I argued, amongst other things, that religious institutions need to be held vicariously liable for the sex crimes of their priests and brothers, in keeping with the rest of the Common Law world.

And so, we have come full circle.

The High Court has invited us to address this issue through the legislature.

We now put our Attorneys General around Australia on notice.

This decision impacts the whole of the country.

Here in Victoria, we will be requesting an urgent meeting with Attorney-General Symes to address this harmful and retrograde decision of the High Court. Our parliaments must, as a matter of urgency, address these harmful injustices with the requisite legislation.

I urge members of our community to please write to the Attorney General to URGENTLY introduce retrospective legislation to right this terrible wrong.

The longer this new legislation takes, the more victims/survivors suffer.

Reminder:

Please write to:
>> The Attorney General in your state or territory.
Here is a list of their names and email addresses, or
>> You can use this pro forma letter. Just add the name of the Attorney General in your state or territory, the date and your name and address.