The Australian Lawyers Alliance is preparing to meet with the New South Wales attorney general to lobby for reform against the “disgraceful” tactics employed by churches and other institutions to prevent abuse survivors from pursuing justice.
A Guardian investigation – based on interviews with 13 lawyers, analysis of court records, and discussions with survivors and their advocates – found earlier this year that churches and other institutions are now routinely seeking permanent stays in cases where perpetrators have died, arguing they cannot possibly receive a fair trial.
Where successful, the tactic permanently halts a survivor’s claim without any compensation. The mere threat of a stay is also being used to lowball survivors during settlement negotiations.
The tactic effectively relies on the passing of time to deny a survivor access to justice, despite the fact that – in many instances – institutions have themselves been the architects of so much delay, including by concealing abuse from law enforcement, deliberately not keeping documentary evidence and shuffling known paedophiles around the country when detected.
Critics, including Francis Sullivan, the former head of the Catholic church’s response to the royal commission, says the new tactics amount to “another layer of abuse” for survivors, a failure of moral leadership and another example of institutions wrongly prioritising the advice of lawyers and insurance companies.
Dr Andrew Morrison KC, a barrister and ALA spokesperson, described the conduct of institutions in routinely pushing for stays as “disgraceful” and “extraordinary”.
“It is a matter of deep concern to the Australian Lawyers Alliance that abusive institutions are getting away with it, in circumstances where the trial might be less than perfect, but would still be reasonably fair,” he said.
“We’ve already made submissions to the former NSW attorney general and current NSW attorney general and we have a further meeting coming up, on which I’ll be speaking to him about this subject as to a solution.”
Morrison said he plans to present Daley with suggested legislation that would limit the circumstances in which a stay can be sought in historical abuse cases. The changes would prevent, for example, an institution relying on an absence of records to support its claim that it could not possibly receive a fair trial.
“In general these institutions have taken great care not to take records or to make sure that records go missing. In particular, some of them have kept no proper records of complaints made in respect of particular abusers,” he said. “So it’s a disgraceful situation that they should be able to take advantage of that to avoid proper compensation.”
A spokesperson for Daley said the NSW government was awaiting the outcome of a key high court case being heard next week involving GLJ, an abuse survivor who had her claim stayed on the basis that the alleged perpetrator, Lismore priest Father Clarence Anderson, had died.
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In that case, court documents show the church had known of other complaints against Anderson before GLJ’s abuse but failed to remove him from circulation, instead shuffling him through various NSW parishes.
The high court’s decision in her case could reshape the way in which institutions are able to seek stays. But many lawyers believe that legislative reform will be needed regardless of what the high court finds.
The issue of permanent stays was considered by the royal commission. It recommended that institutions retain the power to use stay applications to prevent unfair trials due to delay.
Critics say the royal commission could not have envisaged that they would be used in a routine fashion in cases where perpetrators have died, given it takes on average 22 years for survivors to come forward.
“It’s quite extraordinary the circumstances in which they’re being granted, even in respect of institutions where they knew about abusive people and failed to take any useful action to stop them continuing their abuse,” Morrison said, not referring to any specific case. “That’s an absolute disgrace that they should be able to get a stay of claims against them.”
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