Is the Ellis Defence moral?

As the trustees merely own the property within which the abuse occurred and have no responsibility whatsoever for appointing or supervising the perpetrator, they cannot be held responsible for the abuse he committed. Of course, victims are perfectly free to sue the perpetrator or the unincorporated part but they have no assets (the Trust has them all and anyway priests take a vow of poverty) so there is nothing to be gained by it.

It seems that where sexual abuse of children is concerned in NSW, the Catholic Church has two parts: one that does the damage and one that owns the wealth. And ne'er the twain shall meet. As Mr Shoebridge added: "Mr Ellis took his case to the High Court, which refused him special leave."

The situation now seems to be that in cases where accusations of sexual abuse can be sustained, the Catholic Church advises victims that if they sue, they will founder on the Ellis defence. Instead, it offers them a token sum in settlement provided they enjoin themselves to relinquishing all rights to further claims on the church. These sums are thought to seldom exceed a few thousand dollars, nothing like the millions of dollars awarded by courts in some countries to under-age victims of sexual abuse by priests, and laughably inadequate in comparison with the $850,000 said to have been awarded to the mature and professionally competent Kristy Fraser-Kirk for having been merely harassed by her boss at David Jones.

It's easy to sympathise with the Church's efforts to minimise the damages it must pay as it clearly would prefer to spend its wealth furthering its religious mission but it needs to take care that it doesn't cross the line which many Australians think marks where the crack of the whip stops being fair.  Listen to what the lawyer, Angela Sidrinis, had to say on ABC Radio National's Background Briefing on 7 March 2010:

"As your listeners may know, James Hardie tried to avoid its liabilities in this country by incorporating offshore. And there was a huge public outcry, and in the end the government stepped in and ensured that James Hardie put processes in place so that they couldn't avoid their liabilities here. The Catholic Church, in my view, in pursuing what we loosely call the Ellis Defence, is doing exactly what James Hardie did. But of course, what makes it worse is that James Hardie is unashamedly a company that seeks to make profit and to protect profit for its shareholders. The Catholic Church on the other hand, which constantly takes the moral high ground about what is right and what is wrong in our society, is conducting itself in the same way, but because of who the Catholic Church is, and who they profess to be, it becomes even more morally reprehensible and outrageous."

The Church must also be worried by a recent case in the U.K. in which the High Court rejected the its claim that its priests were not its employees. The BBC reported on 8 November 2011 that, "The High Court has ruled the Roman Catholic Church can be held liable for the wrongdoings of its priests."

As the presiding judge rather scathingly pointed out when summarising the relationship between the abuser priest and the Church, "He [the priest] was provided with the premises, the pulpit and the clerical robes. He was directed into the community with that full authority and was given free rein to act as a representative of the church. He had been trained and ordained for the purpose. He had immense power handed to him by the defendants [the trustees of the Roman Catholic diocesan trust]. It was they who appointed him to the position of trust, which (if the allegations be proved) he so abused."

This does not establish that "The Catholic Church" in NSW is a single legal entity just as responsible for the evil as for the good done in its name by its "unincorporated associations". But it surely strengthens the case and makes it even harder to understand why the Court of Appeal and the High Court favoured Cardinal Pell's view that its wealth is beyond the reach of its victims.

Irrespective of what the law might say, it's a fair bet that the Catholic Church has a snowflake's chance in Hell of winning the approval of the average Aussie when it invokes the Ellis defence.