Greens MP tables bill to scrap Ellis defence in Queensland to open up churches to legal action

Queensland would follow other states and abolish a legal loophole used by churches to evade lawsuits by child sexual abuse survivors, under a bill introduced by the state's sole Greens MP, Michael Berkman.

Key points:

  • The Ellis defence protects institutions from damages claims if their assets are held in trust
  • Michael Berkman's bill goes further than the Royal Commission recommendations, by making liability retrospective
  • Victim advocates applaud the move, following similar reforms in NSW, Victoria and the ACT

Mr Berkman has tabled the Civil Liability (Institutional Child Abuse) Amendment Bill 2018, in what he said was an urgent bid to overturn the so-called Ellis defence, which protects institutions from damages claims if their assets are held in trust.

He said the Palaszczuk Government was yet to commit to the reform, despite the Royal Commission into Institutional Child Sex Abuse recommending it be in place before a National Redress Scheme gets underway in Queensland within months.

Without the change, survivors would be "left to make decisions about redress payments under the scheme without all options on the table," Mr Berkman said.

"Queenslanders will not accept institutions hiding behind complex legal structures to avoid justice," Mr Berkman said.

"This bill is now urgent — these changes need to be made immediately after two years of inaction since the most recent government issues paper.

"Justice for survivors of abuse is above politics, and I'd encourage the Government and Opposition to do the right thing and work with me on these amendments."

John Ellis wearing glasses and a hat looking pensive


The Ellis defence is named after former altar boy and lawyer John Ellis, who sued the Catholic Church only to face a court ruling in 2007 that it did not legally exist because its assets were held in trust.

Victim advocates applauded the move to remove the Ellis defence, following similar reforms in New South Wales, Victoria, Western Australia and the ACT.

A lawyer, who asked not to be named, told the ABC the reform had a dramatic effect on a recent WA case involving a 74-year-old man who was sexually abused in a Christian Brothers institution.

With the Ellis defence no longer available, the man received a $1 million settlement on the eve of a trial.

"This reform works — in terms of our ability to bring institutions to account," the lawyer said.

The ABC has obtained Mr Berkman's private member's bill, which goes further than the royal commission recommendations, by making liability retrospective.

It would also extend redress to victims of serious physical abuse and any other related abuse.

The Queensland Government's 2016 decision to exclude survivors of physical and psychological abuse from reforms lifting time limits on lawsuits was criticised by Allan Allaway, a child abuse victim named by Premier Annastacia Palaszczuk as a friend and inspiration for the reforms.

Queensland Child Sexual Abuse Legislative Reform Committee member Kelvin Johnston said the draft laws combined the best parts of reforms from other states and was "a great step for making those vicariously liable for abuse accountable".

"It makes Queensland really shine if they [Parliament] adopt it — we need to put politics aside and adhere to the royal commission recommendations," Mr Johnston said.

"The thing I see is people who have been sexually abused, and psychologically abused, it goes hand-in-hand.

"What I see is, it's unfair the way the civil jurisdiction treats one form of abuse versus another."

Mr Berkman's bill would make unincorporated institutions, trusts and incorporated institutions liable for damages claims unless the institutions can prove they took reasonable steps to prevent abuse.

The draft legal amendments would make a trustee of an institution's property "responsible in law for any liability arising out of a breach of the institution's duty of care, whether the breach happened before or after the trustee became trustee of the trust property," the bill said.

"However, the liability of the trustee under this section, including liability for costs, is limited to the value of the trust property."

ABC News, Josh Robertson, 31 October 2018

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