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Child Abuse Commission

Justice Peter McClellan deserves to be the Australian of the Year for his relentless pursuit of prestigious leaders under scrutiny by the Commission into Institutional Responses to Child Sexual Abuse. He tread where angels fear to tread.  McClellan proved to be a chair intolerant of disingenuity, and made it clear that status could not buy immunity. He challenged pillars of the community and senior church figures, including Arch-bishop George Pell, Australia's most senior Catholic and third in line in the world,over claims they did not know abuse was occurring.  One of Pell's most bizarre defences was "why pick on us? We are not the only ones".  True, but not the most absolving one.

According to Anne Manne in the Monthly, in his 2013 opening address, Justice McClellan said that bearing witness to survivors would be a large part of the commission’s role. That was evidenced by how respectfully all victim’s pain was received by those listening. By the time of the final hearing on 27 March 2017, many survivors paid tribute to McClellan. He has been an outstanding chair. Fair-minded and prodigiously hardworking, McClellan is a plain-speaking man who does not genuflect towards powerful, high-status officials. He has acute moral judgement, and is quick to pounce on the dissembling, the self-deception, the obfuscation, the fudging with euphemism, and the plain old-fashioned lying. 

The philosopher Raimond Gaita has written of the need for wrongdoers to be drawn to “a serious, lucid responsiveness to the moral significance” of what they have done. 

McClellan repeatedly did this by presenting the perpetrator or protector with their actions in simple, stark terms.

Richard Ackland argues "there should be a special place in heaven reserved for Peter McClellan and the team from the royal commission. Talk about a determination to strip bare the unctuous cant of the churches and their enablers".

In a recent public speech McClellan laid the blame for the tolerance of this abuse on Institutional leaders but also on those who were aware of the abuse and said or did nothing.

One of the many positive paradigm shifts of the Royal Commission into Institutional Responses to Child Sexual Abuse  is the increased sensitivity around the treatment of victims (survivors) especially in our courts.  Peter McLellan has reset the system by assimilating past trauma into the national psyche, making it acceptable to listen to the victims and believe the hurt, anger and pain and not allow it to be re-enacted to feather the nests of unscrupulous desperate depraved lawyers.  Evan Whitton tells of victims vomiting in the witness stand. 

We, the people, must use our power to ensure that that endemic culture is not allowed to raise its ugly head again.

What amazes me is the parade of principals from our most expensive, elite and prestigious private schools acknowledging their failure to act but mounting a defence that in the nineties they were not aware of mandatory reporting. Mandatory reporting was implemented in 1988 and further reinforced by 1997. Where were they?

The contrast between Julia Gillard and Barry O’Farrell’s action and the inaction of previous governments is stark.

Persistent rumours of networks of protected predators in high places had abounded for decades without official response.

While in opposition in 1994, Bob Carr had taken strong action against Deirdre Grusovin, for using Parliamentary privilege to crusade against paedophilia, by raising the spectre of conspiracies by networks of protection rackets extending from the police to politics and the judiciary. She paid a high price, losing her front bench spot when she was prevented from proving her allegations.

After Carr was elected, Franca Arena raised similar allegations. When John Della Bosca won a defamation case over Franca Arena, Premier Bob Carr publically congratulated him by renouncing the “catch-all allegations” of fanatical forces.   John Hatton, an Independent member of the legislature spent years raising issues of corruption in the legal system.

In 2013, when Newcastle’s intrepid and relentless reporter, Joanne McCarthy, took her concerns to the NSW Parliamentarians, nobody was interested.  

Peter Fox, a Hunter Valley policeman, spent years against official resistance, investigating institutional sexual abuse.  It was only when he heard Premier Barry O’Farrell assure the public that the police had the situation under control, that Fox went public on the Police failings.  Next day O’Farrell announced a state investigation, but then the Prime Minister, Julia Gillard upstaged him by announcing a National Royal Commission.

Among the exhibits presented to the royal commission were some explosive file notes written by John Cleary, the Newcastle Anglican Church diocese’s business manager from 2007 to March 2017. Cleary is a recipient of the Lake Macquarie Citizen of the Year Award, for his work exposing child sexual abuse. The file notes are handwritten records of meetings that Cleary attended with diocesan council member and solicitor Keith Allen, which took place from 2013 to 2015. The records reveal moments of candour about clergy and child sexual abuse, which occurred well before Cleary’s time. Allen was one of the most powerful members of the laity, and was portrayed by Herft at the commission as a general church busybody with his finger in many church pies. Allen also had the ear of Appleby, and successive bishops Holland and Herft. 

Allen was at the very centre of an “old guard”, a self-appointed group of protectors from the professional class in Newcastle’s civil society – lawyers, accountants, business people and politicians who seemed to gain social status and a sense of importance from their closeness to the diocese’s clergy. According to Cleary, Allen boasted at a meeting on 26 March 2015 that he had “big church connections”. Allen had also allegedly bragged that he “saved three priests from a fate worse than death” and that he made “no apologies for this” because he “protected his bishop and the diocese by doing this”. 

There were even more startling revelations in a file note from 5 March 2013, when Allen purportedly told the meeting about all the other times Hatley Gray was known to have committed child sexual abuse. There was the occasion when he had sex with an underage boy on a rectory table full of lamingtons. Cleary reports “Mr Allen thought it was amusing to bring some lamingtons along to a meeting” about the matter. The same file note tells of how Hatley Gray met with underage boys under the railway bridge at Wyong, plied them with cigarettes and alcohol, and “things went on”. Cleary alleges that Allen mentioned five other clergy who knew of Hatley Gray’s behaviour, including Holland and Appleby. In other file notes, Allen is reported as mentioning other clergy who were believed to abuse children yet were never reported. There was the “hanky panky” group at Wallsend (Rushton’s parish at the time). Two priests were “Shevill’s boys”. This meant, Cleary took it, that the bishop of Newcastle from 1973 to 1977, Ian Shevill, had had a sexual relationship with them in the past.

Similar patterns of non response became evident in most highly regarded institutions across Australia.

When Darren Hinch was jailed, in Victoria, for contempt of court for 15 days in 1986 after he publicly revealed a prior conviction of a paedophile priest during his trial, most people believed him to be just another rabid shock jock who deserved his sentence.

In 2014, he was jailed again for 50 days for breaching a suppression order revealing the criminal history of a serial rapist on bail, accused of murdering ABC journalist Jill Meagher.

But when the people of Victoria elected him as their Senator, people began to take more notice of his deeply committed concerns about justice.  He finally acknowledged that he was a survivor of sexual abuse by a priest.

Evidence of bearing witness to survivors appeared in an early hearing by how respectfully victims’s pain was received by those listening.  

Most important, however, in an investigation with so much raw human suffering, has been the kindness and empathy that McClellan displayed to survivors. According to Leonie Sheedy from the Care Leavers Australasia Network (CLAN), McClellan “gets it”. She is sceptical of anyone wearing the mantle of authority and was suspicious of McClellan at first, yet when he came to a CLAN meeting held in a garage, sat down and asked everyone to call him Peter, and then listened attentively all afternoon to survivors, Sheedy was impressed. She became more hopeful.

When Joan Isaacs began to read her statement in a slightly faltering voice the feeling in the hearing room changed. The commissioners lowered their eyes; the lawyers were still; there was absolute silence.

“From 1967 to 1968, I was sexually abused by Father Francis Derriman who was a priest of the archdiocese of Brisbane and chaplain of Sacred Heart Sandgate for those two years. I was aged 14 to 15 at the time of the abuse ...”

And when she finished half an hour later I heard something I have never heard before at a royal commission: applause. McClellan did nothing to reproach the gallery. The applause rolled on. Isaacs said very softly to the room: “Thank you.”

Another victim breaks down in the witness box:

A survivor, Paul Gray, takes the stand. He has a gentle, sad face and a soft voice. As he reads his statement his head is down, his shoulders hunched. He speaks hesitantly, and at times his voice breaks, or he exhales in a sigh.

One day, Paul Gray was taken to Rushton’s house where he was raped. Then he was taken to a camp south of Newcastle called Yondaio where there were at least five men and another boy. At this point in his testimony, Gray gasps and pauses, tears beginning to flow. The camp had been sold to parents as being about boys hunting wildlife with torches, all jolly and innocent fun. In reality, the predators were the priests. And the boys were their prey.

“I recall the men saying, ‘We are going to get you.’ From my previous experience I knew this meant that they were going to sexually abuse me. I was chased by two men to the edge of a cliff and I hid in the bushes. After I was dragged from the bushes, I was raped by the two men. While I was being raped I could hear another boy screaming.”

Gray is now sobbing openly. A support person next to him ministers to him tenderly, giving him water, sitting close, reaching out. The chief commissioner, Justice Peter McClellan, leans over and gently asks if Gray wants a recess or someone else to read his statement.

Gray: No, I need to read it.

McClellan: You want to read it.

Gray: No, I need to read it.

McClellan: Very well.

Gray: It’s important to me.

McClellan: Yes, I understand.

So Gray keeps reading, his sobs growing louder, his chest heaving, tears streaming down his cheeks. He is entirely lucid through all this. It is a keening, a grief-filled lament flowing out into the world. Sometimes he pauses, gathers strength and then reads on. 

When Gray finishes his testimony, he is done with his open, brave weeping. He asks if people would “abide” for a moment of silence for all those who “could no longer face the struggle of carrying the scars of their child abuse another day and chose to end their suffering by taking their own lives”. McClellan agrees.

The courtroom falls silent.              Reported by Anne Manne.

The average time for a victim to be heard was 29 years.

When it came to questioning prominent Barristers, McClellan refused to be cowed:

Richard Ackland contends there is a spellbinding display of the moral vacuum at the heart of two mighty institutions - the Catholic Church and the law.

Ackland questions the tactics after the church and its lawyers knew, "arguably beyond a reasonable doubt", that Ellis as an altar boy had been abused by Father Aidan Duggan. The truth had been confirmed by the church's own assessor, Michael Eccleston.

But who made the decision to put Ellis through the cross-examination shredder, contesting that he was abused at all?

Was that the product of legal advice or instructions to lawyers from Archbishop George Pell, who had his fingerprints all over the case?

Archbishop Pell claims it was all down to the lawyers. As to the cross-examination of Ellis, he said "it was wrong that it went to such an extent. I was told it was a legally proper tactic, strategy".

This was after he said he thought the lawyers had done "nothing inappropriate".

The lawyers said, in that time-honoured incantation of the profession, "we were acting on instructions".

The Honourable Justice Peter McClelland AM was unrelenting in his examination of two solicitors for the church from the high-end law shop Corrs Chambers Westgarth - Paul McCann and John Dalzell.

 Here's the transcript, with McClelland closing in on McCann:

Q. How do you justify vigorously defending a limitation action in the event that the client accepts that the acts, which might otherwise have been in dispute, are not in dispute?

A. Well, my instructions were that ...

Q. No, I'm talking about you, in your mind?

A. Your Honour, I see myself as a lawyer.

Q. Precisely ...


Q. It wasn't necessary to put in issue, as was done, whether or not it happened?

A. Look, I concede that.

Q. Sorry?

A. I concede that.

Q. Again, I ask you, you do understand, don't you, how extremely hurtful to someone ...

A. Yes.

Q. ... such a tactical exercise in litigation could be?

A. Yes, I can see that, but, as I say, the hands of that trial were with senior counsel, but I accept that I was relevantly the instructing partner.

Q. The course taken should never have happened, should it?

A. The?

Q. The course that was taken in that respect should never have happened, should it?

A. Well, I think it's only a portion of the cross-examination.

Q. Nevertheless, it's a fundamental challenge to Mr Ellis, and it shouldn't have happened, should it?

A. On reflection, probably not.

There it was. Trying to tear Ellis' legs off in court, when his attackers knew the truth of his claim, should never have happened. Notice how McCann momentarily tried to palm it off to the barristers.

It was worse when Dalzell was in the box.

Q. ... You knew that Mr Eccleston had determined that Mr Ellis was telling the truth, didn't you?

A. I did know that, your Honour, yes.

Q. And you knew that your client had nothing to the contrary of that proposition?

A. That's correct, your Honour.


Q. You sat there while your counsel put in issue whether or not Mr Ellis was telling the truth about having been abused; that's the position, isn't it?

A. It is, your Honour, yes.

Q. Can you explain how ethically you could sit there and do that? ...

A. Your Honour, I did know that, and my memory from it is that - you're asking about my ethics, your Honour, and I say this ...

Q. I am. I'm putting squarely in issue how it can be that a solicitor, who has an obligation to the court not to do anything that could mislead in any way ...

A. I'm aware of that, your Honour.

Q. ... can sit behind counsel and allow this to happen?

A moment when a lawyer couldn't hide behind the skirts of the client's instructions. It's positively cringeworthy.

No doubt everyone's full of regrets. They particularly regret getting caught.

Anne Manne again:  The Royal Commission into Institutional Responses to Child Sexual Abuse is unique. Established by Julia Gillard in 2013, by the time it delivered its final report on 15 December 2017, it is the longest-running, and most thorough, investigation of its kind anywhere. There is tremendous interest in it worldwide. There have been other inquiries, in the United Kingdom, Ireland, Canada, New Zealand and the United States, but none has been so comprehensive, detailed and remorselessly forensic in its investigations. The royal commission has examined allegations that the sexual abuse of children occurred at more than 4000 institutions across Australia. There have been 6500 private sessions with people who came forward about their abuse, with 2000 more remaining to be heard. The royal commission sat for 440 days of public hearings, and heard evidence from more than 1200 witnesses. The advantage of a royal commission lies not only in its scope but also in its ability to compulsorily summons individuals, and to cross-examine witnesses under oath. It examined more than 1.2 million subpoenaed documents.

The royal commission is remarkable in another way. It is both reflective of and a powerful contributor to a cultural revolution that has ushered in a new sensibility about child sexual abuse. The old pro-perpetrator regime in religious organisations – the covering up, the protecting of the churches’ hierarchy and reputation, the turning of a blind eye to abusers while sending them to new parishes (and fresh victims) – has been under intense and damning scrutiny. Perpetrators and their protectors are being called to account. The shameful record of disbelieving and silencing victims, and of putting the churches’ wealth into discrediting them in court, has been exposed. The national mood has shifted decisively in favour of believing, listening to and respecting the suffering of survivors.

This is just one of the many sittings of the Commission.  There is a strong repetitive pattern in many other "prestigious institutions" revealing that cultures of protecting their own image takes precedence over the interests of vulnerable children.  Jewish schools, Uniting Churches, Pentecostal Churches - Hillsong and many expensive private schools.  But by far the worst were several Catholic dioceses. See: Catholic responses.

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