Saturday 16th, November, 2024: High Court Judgement, Catholic Church and Child Sex Abuse, Michael Magazanic

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You're on Saturday, sunny, sunny Saturday magazine. Welcome to the programme. This is Fiona Paul and Macka. Who's our next guest? Our next guest is Michael Magazanik. Michael is a partner at Right to Side Legland. I need to give a little trigger warning to people here.

The issue we're talking about is related to child sexual abuse, particularly within institutions. So please, if this issue is going to cause you concern, go and make a cup of tea or not listen. Good morning, Michael Magazanek. How are you on this Saturday? I'm well. Thank you, Matt. How are you? I'm pretty good. The High Court this week brought down a judgment as a result of an appeal

bought. Can you explain to us what that appeal was about and then what the judgment was that the High Court landed? Absolutely. This concern, the case of a boy who was abused by a notoriously abusive priest. The priest's name was Coffey. The boy had a student in DP. He's a man now, of course. He won a trial, so he held the

the diocese of Ballarat responsible trial. He won again on appeal and then the Catholic Church appealed to the High Court. And really the fight was about one thing. Could the Catholic Church be held responsible for the abuse committed by this priest when the priest was not strictly an employee? Priests are not employees. They don't sign contracts of employment.

But of course, in the real world, they're 24-7 employees. They're much more than an employee. They give their life to the church. They're on duty 24-7. They wear a uniform. They have to apply. So it was this ridiculous arcane legal dispute over whether they're technically employees or not. In recent years, we've had five Victorian judges say it doesn't matter if they're employees or not. It's so close to employment that the church has got to wear responsibility for them. But the High Court turned all that around.

and said the church was not responsible for that priest's criminal offending because he was not strictly an employee. Now you can imagine the survivor community was devastated and the churches of course. Effectively the churches through this decision are getting a free path for pedophile priests. That's what it comes down to. Now we've seen the Victorian government

has changed a lot of legislation in recent years that provides greater avenues for survivors to seek redress. And I do feel comfortable that the Victorian government will legislate to counter this because basically the high court said that the states

need to change their legislation? Is that correct? Completely correct. The High Court said that the positive from the High Court decision, the only positive from a pretty bleak decision so far as survivors go, is that they said it's not for us to fix this situation. It's for the legislatures or the parliaments to fix it. And they said it squarely. That's the term they use. It's squarely in their hands. So the High Court was really issuing an invitation to governments around Australia to fix the law.

And as you say, David, the Victorian government does have a really strong record of track reform in this area. Sorry, strong record of reform in this area. It's really been progressive. And I agree with you. I'm optimistic that the Victorian government particularly, but other governments as well will move quickly. As you know, there's a meeting. It's called SCAG, S-C-I-G standard. It's a great term. It is fantastic. And they're meeting. So all the nations, the Attorney General of the State,

and the federal Attorney General meeting this coming week. And we would be hoping for an a statement, a principle at least from them saying that we will move quickly to fix this because the real risk is that there's a lot of lawyers out there representing a lot of survivors. Not all those lawyers are good. And the church is going to be hoping for a whole lot of bargains while this law is in place. You know, basically the churches and the religious orders will be ripping off abuse survivors.

making hay while the sun shines. So the High Court has made a legal decision. I understand that. My words, they have not made a moral decision. So to say, you know, a church, religious organization or whatever, particularly for regard to priests, they employ them. So they hire them, they fire them, they house them, they feed them,

They direct them into how they will do their job. They tell them what to wear. They tell them what to say. They provide pensions for them. They provide homes for them when they retire, yet they're not employees. I mean, you can't make this sort of shit up. You can't. It's mad. It's sort of Harry Potter universe, isn't it? It's ridiculous. The idea that they're not greater than employees is impossible to reconcile with.

So, Michael, the process is if governments and different territories and state governments decide, yes, this needs to be addressed. That will take time. There is a little bit of history in this in, and particularly in Victoria, you can tell me better about other states because I know you've run a lot of cases in other states.

Victorian Government has made some of the parts of legislation where they've done amendments around historical child sexual abuse. They've overridden previous laws, effectively making their new ruling retrospective. Is that correct? Correct. And the churches have historically been well protected from litigation and those sort of fortresses and

And, you know, barbed wire fences and moats have been progressively stripped away from the churches. And one big move was that it was just impossible to sue the churches because of something called the Ellis Defense in that it's another legal fiction, David. It's, you know, churches are not companies. They are unincorporated associations. And the law regards them as not existing a law. So you just couldn't sue them. So the Victorian government fixed that by legislation in 2018.

And so churches can't hide behind that anymore. So the governments around Australia can fix this pretty easily. I mean, there's complicated ways to fix it. There's simple ways to fix it. But they could just pass a law saying that in any analysis of vicarious liability, what's going on here, priests and religious, you know, brothers and nuns and sisters are all regarded as employees. I mean, that's probably a bit too simple, but there are certainly relatively straightforward ways to fix this and it can be done quickly.

And, you know, I remember that in 2018, Michael, you and I had long discussions about that. And, you know, we all advocated. Some might say pressured, but let's say advocated for those changes to actually happen. So what do you say to people? You know, not just survivors. What do people need to do? Do you want people to contact

their local MP or the Attorney General in wherever they live, to say, you need to fix this. Is that what you want people to do? Absolutely, totally. People should contact their MPs and say, this has to be fixed and it has to be fixed quickly. There's a moral reason for it. It's ludicrous that churches, we've had a Royal Commission, it's shone a bright spotlight on the extent to which

on just a massive scourge of sexual abuse in religious orders in this country. So there's a moral reason to fix this. There's also, for the government, there's a straightforward financial reason. If churches get this free pass, survivors will be looking to sue governments wherever possible. And the other issue is, David, every properly compensated sexual abuse survivor, properly compensated, is off welfare. So there's a saving. There's actually a

It's a second-order issue. There's a financial motivation for government here, but the moral issue is the driving one. Churches should not get off the hook because of the legal fiction, and people should tell their MPs that. Have you, in all the cases that you've run in the past, Michael, and for disclosure, Michael represented me? Are you now hearing in terms of cases that you've got currently running?

Do you get a sense from these institutions? My words, not yours, that they're rubbing their hands together thinking, oh, this is good. Oh, the institutions that allotted, there's 100% no question about it. They held the rip hand for decades and decades, and they were just impervious to legal assault.

um, or legal, you know, legal claims bought by survivors. As I've said, those, those defenses have been stripped away. And this is, this is an unexpected win for them. Nobody expected. I mean, I watched that high court case. Yeah. One of the viruses who were involved in that high court case, nobody, everyone involved, everyone watching, nobody expected to go this way. So this is a really unexpected win for the churches. And yes, they are delighted.

But even they would know that this is against the running history now. The running history is in favour of the survivors and in favour of a fair legal landscape and politicians don't anymore see any advantage. I wouldn't think you might have a, I think you'd agree with me. I don't think politicians see any advantage in siding with pedophile priests.

Well, I would say yes, you're correct. Some of them will say, well, Macke, the devil is in the detail. I say it's pretty simple. Either you are against child sexual abuse, you want to protect institutions that provide sanctuary to pedophiles. And if you are, then yeah, vote against the legislation.

I think this will land hopefully in the right place. I hope it doesn't take too long. It's a really, really serious issue. It has huge implications for survivors. It has huge implications for the communities we all live in. So I hope it lands in the right place. I want to thank you, Michael, for giving up some of your Saturday, but also for the work you do. Delivering justice.

is something that few people get to do and you do it, so thank you.

Thank you. Thank you. Cheers. You are on Saturday magazine, Joy 94.9 with Mac and Fiona coming up, a slight change of pace. We're going to be speaking with Archie from Queer Town, who I don't know if he's brought his award in with him, but he's going to join us. He, he and Queer Town one, the LGBTQIA plus category in the Melbourne Awards. Stay with us.

Thanks for listening to another Joy podcast brought to you by Australia's LGBTQIA Plus Community Media Organization. Joy, help us keep joy on air. Head to joy.org.au. Joy, a diverse sound for a diverse community.