SUBM.1042.005.0001
ROYAL COMMISSION INTO INSTITUTIONAL CHILD ABUSE – CASE STUDY 42 THE ANGLICAN DIOCESE OF NEWCASTLE, THE ANGLICAN CHURCH OF AUSTRALIA SUBMISSIONS FOR BISHOP BRIAN FARRAN INTRODUCTION 1. These submissions are made on instructions from Bishop Farran in relation to matters with which he was concerned during his tenure as the Bishop of the Newcastle Diocese of the Anglican Church (“the Diocese”). The submissions comment on the evidence of relevant witnesses and develop recommendations made by Bishop Farran for the protection of children in institutional environments, including church congregations. 2012 AMENDMENTS TO THE PROFESSIONAL STANDARDS ORDINANCE 2. The Commission should find that the amendments to the Professional Standards Ordinance in 2012 were, in hindsight, poorly conceived in that section 77 did potentially weaken the rights of survivors of abuse to have to obtain consent to be present when findings were delivered. Witness Michael Elliott identified the proponents of that change as Assistant Bishop Stuart, “various committees”, the Reverend Stephen Williams and Cec. Shevill1. It is clear that Bishop Farran’s only personal interest in the change was to be able to receive Board findings and recommendations directly, rather than via the media2. 3. The attribution by Mr Elliott of responsibility for the change reflects (exactly what one would expect) a process of drafting and review by a number of persons in the Diocese. 4. Mr Cleary’s claim that the 2012 amendments destroyed or dismantled the professional standards regime3 is palpably incorrect. His own involvement in contributing to discussion about possible change the Professional Standards Ordinance in 2012 reflects the benign genesis and evolution of that change, being the direction of the Diocesan Council4. There is simply no evidence that the Transcript 11 August 2016, 17057 34 ff Transcript 17 November 2016, 23252 at 28-­36 3 Transcript 23 November 2016, 23545 at 36 and 41 4
Exhibit 10 (STAT.1087.001.0001_R) Statement of Witness John Cleary dated 24 July 2016 at 110 and 111 1
2
SUBM.1042.005.0002
change was designed to weaken either the rights of survivors or the professional standards process. 5. Mr Cleary’s evidence that Justice Sackar’s judgment validated the then existing Ordinance5 shows a fundamental misunderstanding of the nature of the justiciable controversy determined by his Honour. WITNESSES CKU AND CKR 6. Counsel Assisting proffers the finding6 that there was a failure to provide consistent pastoral care and support to both CKU and CKR at the time of the criminal prosecution of CKU’s abuser, Ian Barrack in 2005/2006. Whilst such a finding is justified, that, of itself, does not explain the failing or reflect the remedial action which was taken to address it. 7. Bishop Farran commenced his episcopacy in mid 2005. He first met with CKR on 6 October 20057. Bishop Farran’s evidence is that he thought that CKR had been “fobbed off” in her attempts to meet with him as the view was taken that Bishops no longer dealt with these things8. At the time and for the prior relevant period, Mr Phillip Gerber was the Director of Professional Standards. It is clear that a review was conducted of the handling of the relevant complaint and that remedial action was initiated and maintained by Bishop Farran through the provision of the Reverend Rosemary Gilham as a support person, the personal engagement by Bishop Farran with CKR and the publication of an apology to CKU as requested by CKU9. 8. It can be seen that CKU and CKR had different perspectives and needs, particularly in relation to engagement with the Church. From the time of his involvement in the matter, Bishop Farran endeavoured to respect and support those different needs and perspectives. 9. It may be fairly said that a positive change was made in the attempts of the Diocese to provide pastoral care and support to both CKU and CKR from October 2009. 5
Transcript 23 November 2016, 23544:41 – 23545:1;; Transcript 24 November 2016, 23583:12-­16. Submissions of Counsel Assisting dated 22 December 2016 (AF104) 7 Transcript 17 November 2016 p. 23223 at 13ff 8 ibid.at 23ff 9 Transcript 17 November 2016 p. 23226 at 11ff
6
2
SUBM.1042.005.0003
10. Accordingly, it is submitted that a more appropriate finding in this respect would be that: “The initial response of the Diocese in providing pastoral care to CKU and CKR was inadequate.” CONSIDERATION BY BISHOP FARRAN OF THE FINDINGS OF THE PSB RELATING TO MESSRS LAWRENCE, HOARE, DUNCAN, STURT AND GOYETTE 11. It is uncontroversial that in 2009, when serious allegations of sexual impropriety were first made against the above men, Bishop Farran acted quickly and effectively to suspend the rights of the clergy involved to conduct ministry. This was a necessary step in the protection of members of the Church congregation. From that point in time, Bishop Farran was placed in the public spotlight with his actions subject to public scrutiny. Bishop Farran knew that his own life was going to be “hell”10. 12. A vociferous group of Cathedral parishioners which included Mr Robert Caddies sought through the Newcastle Herald to discredit Bishop Farran (punish was Caddies’ word in his oral evidence) and to undermine the validity of the Diocesan Professional Standards regime. Bishop Farran had to endure this public persistent criticism. 13. Evidence provided to the Commission now details the extended path involved in responding to the recommendations of the Board, including protracted proceedings in the Supreme Court. It is now understood that Bishop Farran took legal advice from Justice Young as to when he could act on the Board’s recommendations and consulted with the survivor involved, CKH, before reaching his decision. 14. To suggest that Bishop Farran “equivocated” prior to reaching his decision is unfair and unhelpful in that it ignores the full range of considerations that fell to Bishop Farran to take into account at the time. Bishop Farran clearly had reservations about implementing the recommendations of the Board in full. The important question is: Why was that so? 15. The positions of Messrs Cleary and Elliott (as Secretary to the PSB and Director of Professional Standards respectively) explain why each felt compelled to support the Board’s recommendations in their entirety however, neither witness seemed to comprehend the actual responsibilities placed upon Bishop Farran to 10
Transcript 17 November 2016, 23257 at 35ff 3
SUBM.1042.005.0004
do more than just “rubber stamp” the Board’s recommendations. The application of a proper discretion by Bishop Farran at the time was appropriate, particularly in a climate of open public hostility towards him and when litigation had already been taken by two of the respondents. A successful legal challenge to a perfunctory exercise of Bishop Farran’s discretion would clearly have been a disaster for both the PSB process and the Diocese. Such implications are not addressed by Mr Cleary or Mr Elliott. 16. Bishop Farran was open with Mr Cleary and others as to his then reasoning11. Minds might differ on how such matters should be weighed against each other (as might occur in response to the verdict of a sentencing judge). It is submitted that what is more important to the Commission than simple hindsight review of the actual exercise of the Bishop’s discretion is understanding the interaction of competing duties and considerations for a Bishop exercising a role in disciplinary matters involving clergy and the implications that arise from such considerations for reform of process in cases of child sexual abuse. THE CASE FOR REFORM 17. It must be acknowledged that individual and systemic failings in the Diocese: a. permitted the abuse of children;; b. hindered or prevented the apprehension of offenders;; and c. compromised the ability of survivors to obtain redress, support and healing. 18. There are a number of identifiable reasons why systemic failure occurred, including: a. A “sick” culture within the Church hierarchy which sacrificed truth and protection of the most vulnerable in favour of power, status, relationships and preserving the status and reputation of the Church;; b. An unyielding commitment by some leading members of the laity in the Diocese to the sanctity of the Church and those who practised its ministry. (Bishop Farran observes that this “culture of clericalism”12 had the effect of elevating clergy to a higher “caste” and transferring power to members of the See Transcript 11 August 2016 at 17052 at 36ff and 17 November 2016 at 23254 (22ff) and 23255 (20ff) 12
Child Sexual Abuse and the Churches: A Story of Moral Failure? Professor Patrick Parkinson
Current issues in Criminal Justice Volume 26 Number 1 11
4
SUBM.1042.005.0005
clergy who, in some cases, expected and required deference, if not submission, from parishioners.) c. Opportunistic and cynical abuse of power and trust by abusers (or persons who condoned their behaviour) in the Diocese;; d. An apparent lack of insight into, and concern for, the damage caused by abuse by senior clergy;; and e. A lack of record keeping and data necessary to found a corporate knowledge of possible abusers and the risks which they posed. 19. The introduction of the 2005 Professional Standards Ordinance marked a significant break with past arcane (and seldom used) procedures for dealing with miscreant clergy. It is clear that those reforms were not embraced by all members of the Diocese and that cultural change in the Diocese did not keep pace with the reform explicit in the Professional Standards Ordinance 2005. It is less clear why resistance to reform remained and why such reform was not successfully embedded in the accepted culture of the Diocese at the time. 20. Whatever the reason, the evidence is that some members of the Diocese still resist reform13 and that fact has important implications for how the Royal Commission should assess the best way of protecting the interests of children in the Diocese. It is submitted that the Commission should avoid becoming enmeshed in attempts to devise protection for children in institutional environments such as the Dioceses of the Anglican Church of Australia through direct involvement in either structural or cultural change. Aside from the Constitutional limitation on such an approach14, the experience of the Anglican Diocese of Newcastle makes the case that, even when a comprehensive and transparent internal system for dealing with professional standards is maintained and enacted, conflicting responsibilities of those administering such systems, the overt and covert support of individuals who are the subject of proceedings and the possibility of legal challenge to findings and actions taken in proceedings (particularly by those whose livelihoods are at stake) make the effective use of such systems, problematic. Furthermore, while it must be acknowledged that poor institutional culture and hierarchical structure may constitute risk factors in 13
14
See the evidence of witness Robert Caddies Section 116 of the Constitution 5
SUBM.1042.005.0006
institutional child abuse, improving such deficiencies cannot guarantee the protection of children15. 21. In essence, it is submitted that the Commission should conclude that if the governments of Australia have the will to adopt measures which are specifically designed to protect children, such measures should be superimposed on institutions dealing with children, regardless of the differing views held by members, or even prevailing institutional culture. The issue of protecting children is simply too important to leave to institutions;; either to initiate necessary change or to achieve compliance with appropriate internal regulation. PROTECTING CHILDREN IN INSTITUTIONAL ENVIRONMENTS 22. There is no doubt that the Commonwealth of Australia has the power to legislate to protect the rights of children. Australia is a signatory to the International Covenant on the Rights of the Child (“CRC”), although, as the Australian Human Rights Commission has noted, no domestic legislation has yet been enacted by the Parliament of Australia to give full effect to Australia’s international obligations16. It should be accepted that a law which is enacted to protect such rights and which does not take, as its object, the regulation of church structure would not infringe section 116 of the Constitution17. 23. Article 19 of the Convention provides that: 1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child. 2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, 15
See: Risk profiles for institutional child sexual abuse A literature review (Report to the Royal Commission by Professor Keith Kaufman and Marcus Erooga & Ors) at p.28 16
See, for example, the submission of the of the Australian Human Rights Commission to the international Committee on the Rights of the Child on Australia’s implementation of the International Convention on the Rights of the Child with reference to the Australian Government’s 4th periodic report – August 2011.
17 Kruger v The Commonwealth (1943) 67 CLR 116 at 40 per Brennan CJ.
6
SUBM.1042.005.0007
investigation, treatment and follow-­up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement. 24. In 1998 the Joint Standing Committee on Treaties for the Parliament of the Commonwealth of Australia published its report on the implementation of the CRC in Australia. That report contained 49 recommendations, some of which relate to the terms of reference of this Royal Commission. It is difficult to understand why important recommendations which were made for the protection of children in Australia 18 years ago were not implemented. Two important recommendations of the Committee (24 and 25) involved the creation of an Office of Children, with attendant functions and responsibilities for the implementation of the CRC in Australia. 25. The Letters Patent to this Royal Commission make specific reference to Article 19.1 of the CRC and require and authorise enquiry into, inter alia: a. what institutions and governments should do to better protect children against child sexual abuse and related matters in institutional contexts in the future;; b. what institutions and governments should do to achieve best practice in encouraging the reporting of, and responding to reports or information about, allegations, incidents or risks of child sexual abuse and related matters in institutional contexts. 26. In his evidence before this Royal Commission, Bishop Farran recommended that the process of disciplining clergy should be removed from the Church18. Having had legal advice, Bishop Farran accepts that the Commonwealth Government cannot legislate to directly intervene in a church in that manner. However, Bishop Farran maintains his strong recommendation that some form of independent regulation, which deals with the protection of children and which compels compliance by churches with such protection, is essential. 27. It is therefore submitted that the Commission should consider recommending a Commonwealth response to its report which includes the following features: a. The establishment of an Office of Children as a new Commonwealth agency for the protection of children and the advancement of their interests;; 18
Transcript 17 November 2016 at 23264-­5 7
SUBM.1042.005.0008
b. The development of national working with children regulation (based on the Child Protection (Working with Children) Act 2012 (NSW)) by the Commonwealth in co-­operation with State and Territory governments. c. A mandatory notification requirement being created for institutions and their officials (as that term is defined in the Commission’s Letters Patent) for any suspected or alleged child abuse (with appropriate exclusions for frivolous and vexatious allegations);; d. The Office of Children having power to refer notifications of child abuse to State and Territory police, the Australian Federal police in respect of its community policing agreement in the ACT as well as State and Territory child protection and education agencies;; e. The Office of Children having power to suspend or cancel a “working with children authority” with such decisions being subject to the Administrative Decisions (Judicial Review) Act 1977 (Cth);; and f. The Office of Children offering: i. training and education programmes for both institutions and children aimed at raising awareness of, and protecting children from, child abuse;; ii. referral services for abuse survivors to counselling, support services and appropriate legal advice;; and iii. a default compensation scheme for survivors of child sexual abuse who are either unwilling or unable to pursue private rights to compensation. CONCLUSION 28. The experience of Bishop Farran in dealing with extensive disclosures of child sexual abuse in the Anglican Diocese of Newcastle is, in itself, a case study on why the imposition of genuinely independent protections for children in institutional settings is necessary. Dated: 9 February 2017 (for) C.P. HEAZLEWOOD and P.A. TIERNEY (Counsel for Bishop Farran) 8