Case Study 52 - Transcript - Institutional review of Anglican Dioceses of Grafton, Tasmania

150 Pages·2017·2.47 MB·English

ROYAL COMMISSION INTO INSTITUTIONAL
RESPONSES TO CHILD SEXUAL ABUSE
Case Study CS52
(Day 262)
Level 17, Governor Macquarie Tower
1 Farrer Place, Sydney
On Tuesday, 21 March 2017 at 10.00am
Before:
The Chair: Justice Peter McClellan AM
Before Commissioners: Justice Jennifer Ann Coate
Mr Bob Atkinson AO APM
Mr Robert Fitzgerald AM
Professor Helen Milroy
Mr Andrew Murray
Counsel Assisting: Ms Gail Furness SC
Ms Naomi Sharp
.21/03/2017 (262) 27004
Transcript produced by DTI
1 MS SHARP: Good morning, your Honours, and good morning,
2 Commissioners. I understand there's a new appearance to be
3 announced
4
5 MS ELLYARD: If the Commission pleases, my name is Ellyard
6 and I appear pursuant to leave granted for the General
7 Synod Royal Commission Working Group and, more
8 particularly, Mr Blake; Archbishop Philip Frier, the
9 Primate; and Ms Anne Hywood, the General Secretary.
10
11 THE CHAIR: Thank you.
12
13 MS SHARP: This morning we have a panel of witnesses who
14 will consider issues arising in professional standards. We
15 have Bishop Matthew Brain, we have Ms Audrey Mills,
16 Mr Garth Blake and Mr Michael Shand QC.
17
18 <MATTHEW PETER BRAIN, sworn: [10.05am]
19
20 <AUDREY ROSELENE MILLS, sworn: [10.05am]
21
22 <GARTH OWEN BLAKE, sworn: [10.05am]
23
24 <MICHAEL WARNER SHAND, sworn: [10.05am]
25
26 <EXAMINATION BY MS SHARP:
27
28 MS SHARP: Bishop Brain, could you tell the Commission
29 your full name?
30
31 BISHOP BRAIN: My full name is Matthew Peter Brain.
32
33 MS SHARP: You are presently the Assistant Bishop in the
34 Diocese of Canberra and Goulburn?
35
36 BISHOP BRAIN: That is correct.
37
38 MS SHARP: How long have you held that position?
39
40 BISHOP BRAIN: Since June 2014.
41
42 MS SHARP: Do you have any role in the church at a
43 national level?
44
45 BISHOP BRAIN: I'm a member of the General Synod.
46
47 MS SHARP: Thank you. Ms Mills, could you tell the
.21/03/2017 (262) 27005 PANEL 3.1
Transcript produced by DTI
1 Commission your full name please.
2
3 MS MILLS: Audrey Roselene Mills.
4
5 MS SHARP: You're a member of the Professional Standards
6 Commission?
7
8 MS MILLS: Yes.
9
10 MS SHARP: What is your role on that Commission?
11
12 MS MILLS: I'm a member of that Commission.
13
14 MS SHARP: Do you have any other role in the church at a
15 national level?
16
17 MS MILLS: I'm a member of the General Synod and a member
18 of the Standing Committee.
19
20 MS SHARP: Mr Blake, could you tell the Commission your
21 full name, please?
22
23 MR BLAKE: Garth Owen Blake.
24
25 MS SHARP: You're a barrister practising at the Sydney
26 Bar?
27
28 MR BLAKE: Yes.
29
30 MS SHARP: You're also the Chair of the Professional
31 Standards Commission?
32
33 MR BLAKE: Yes.
34
35 MS SHARP: And you are the Chair of the Anglican Church's
36 Royal Commission Working Group?
37
38 MR BLAKE: Yes.
39
40 MS SHARP: Do you have any other roles in the church at a
41 national level?
42
43 MR BLAKE: I'm a member of the General Synod and a member
44 of the Standing Committee of the General Synod.
45
46 MS SHARP: It is right that you prepared a statement dated
47 18 July 2016 for the Royal Commission for the purpose of
.21/03/2017 (262) 27006 PANEL 3.1
Transcript produced by DTI
1 case study 52?
2
3 MR BLAKE: Yes.
4
5 MS SHARP: Just for your Honours' and Commissioners'
6 reverence, that's in the tender bundle at tab 62.
7
8 MS SHARP: Mr Shand, could I turn to you. Could you tell
9 the Commission your full name, please?
10
11 MR SHAND: Michael Warner Shand.
12
13 MS SHARP: You're a barrister practising at the Melbourne
14 Bar?
15
16 MR SHAND: I am.
17
18 MS SHARP: You are the Chancellor of the Diocese of
19 Melbourne?
20
21 MR SHAND: Yes.
22
23 MS SHARP: You're also an arbitrator?
24
25 MR SHAND: I am.
26
27 MS SHARP: You're a member of the Diocesan Council in
28 Melbourne?
29
30 MR SHAND: Yes.
31
32 MS SHARP: You're also a member of the Provincial Working
33 Group on Professional Standards.
34
35 MR SHAND: Yes, I am.
36
37 MS SHARP: Is it right that you're also a member of a
38 National Professional Standards Working Group?
39
40 MR SHAND: I'm a member of the Professional Standards
41 Commission of the national church.
42
43 MS SHARP: Thank you. You prepared a statement for the
44 purpose of this Royal Commission dated 9 March 2017?
45
46 MR SHAND: Yes.
47
.21/03/2017 (262) 27007 PANEL 3.1
Transcript produced by DTI
1 MS SHARP: For your Honours' and Commissioners' reference,
2 that's is in evidence at tab 46 of the tender bundle.
3
4 THE CHAIR: I think Bishop Brain wants to say something.
5
6 BISHOP BRAIN: Sorry, Ms Sharp, I need to correct my
7 statement about my current role. It was 2015, rather than
8 2014, when I began that.
9
10 MS SHARP: Thank you for that, Bishop Brain. Can I start
11 with a question about the historic position for the
12 discipline of clergy and bishops within the Anglican Church
13 of Australia. Mr Shand, I'll direct this question to you.
14 Prior to the professional standards framework, is it right
15 that the disciplinary procedure in each diocese generally
16 involved a Diocesan Tribunal, a Board of Inquiry and an
17 offences canon?
18
19 MR SHAND: Yes, that's right. Before the professional
20 standards legislation was introduced, there was a sole
21 model of discipline represented by the Diocesan Tribunals,
22 and that was a regime that had been set out or that was set
23 out in the National Constitution.
24
25 MS SHARP: And was it the case that each diocese would
26 create its own Diocesan Tribunal?
27
28 MR SHAND: Yes. So the scheme of it was that for clergy
29 other than a person in bishop's orders, they would be
30 subject to the jurisdiction of the Diocesan Tribunal, and
31 that tribunal would be constituted under diocesan
32 legislation in each diocese, ecclesiastical - the Diocesan
33 Tribunal Act, for example, in the Diocese of Melbourne.
34
35 Alongside that sat the Special Tribunal which had
36 jurisdiction over, in effect, diocesan bishops, in broad
37 terms, yes.
38
39 MS SHARP: Was the Special Tribunal a creature of each
40 diocese or was that a creature of the national church?
41
42 MR SHAND: The Special Tribunal is constituted under the
43 constitution of the national church and by virtue of the
44 Special Tribunal Canon of General Synod. So that is beyond
45 a diocese, the Special Tribunal; it is the sort of federal
46 body.
47
.21/03/2017 (262) 27008 PANEL 3.1
Transcript produced by DTI
1 MS SHARP: If an allegation of child sexual abuse were to
2 be made against a member of the clergy under that old
3 Diocesan Tribunal process, is it right that a charge of
4 disgraceful conduct would be brought and then adjudicated
5 by the relevant Diocesan Tribunal?
6
7 MR SHAND: Yes. The matter would have to engage the
8 offences canon of General Synod which lists the particular
9 ecclesiastical offences. That canon is then adopted and,
10 to my knowledge, was adopted by every diocese as its own
11 law in the diocese.
12
13 So a particular head of the offences canon is "conduct
14 disgraceful", or "productive of evil report" - I haven't
15 got the exact wording, but it's that particular one.
16
17 MS SHARP: And would it then be for the tribunal to make
18 findings on the charge brought, and recommendations to the
19 bishop as to how the matter was to be disposed of?
20
21 MR SHAND: Yes, that is correct. It proceeds as the
22 laying of a charge before the tribunal, for a member of the
23 clergy to make out the case, that the charge is made out,
24 that the matter, the offence has been committed, and then,
25 yes, for recommendations to be made. So it is
26 disciplinary; it results in a sanction visited on the
27 particular person who is charged, unlike what then happened
28 with professional standards, which is a different regime.
29
30 MS SHARP: Mr Shand, is it correct that in each diocese
31 what I will call the Diocesan Tribunal disciplinary
32 framework continues to exist?
33
34 MR SHAND: It does. To my knowledge, in Victoria it has
35 been little used. In my time as Chancellor in Melbourne
36 for the last 10 years, it hasn't been engaged at all. In
37 my time in Ballarat, from 2002, it was not engaged - the
38 reason being that it's fairly technical, you've got to make
39 out a charge, it's quasi criminal, quasi disciplinary, and
40 whatever the reason, it just didn't find itself being used
41 a great deal.
42
43 MS SHARP: Mr Blake, could I direct a question to you. Is
44 it fair to say that the Diocesan Tribunal framework has
45 been effectively supplanted by the professional standards
46 framework?
47
.21/03/2017 (262) 27009 PANEL 3.1
Transcript produced by DTI
1 MR BLAKE: No.
2
3 MS SHARP: How would you describe it?
4
5 MR BLAKE: For example, in the Diocese of Sydney the
6 Diocesan Tribunal is it still used for clergy. In the
7 Diocese of Brisbane in recent times the Diocesan Tribunal
8 has been used for a retired bishop. It really depends on
9 the circumstances, and in some dioceses, for example, the
10 Diocese of The Murray, if I recollect correctly, the
11 professional standards regime does not have as an action
12 deposition from Holy Orders for a member of the clergy. So
13 if the conduct the subject of consideration might give rise
14 to that particular consequence, it would be necessary to
15 prosecute a charge before the Diocesan Tribunal. I think
16 there is sort of a mixed use of the Diocesan Tribunal
17 depending on the diocese that you're in.
18
19 MS SHARP: Thank you. I'll come to ask some questions
20 about the professional standards framework in a moment, but
21 I might start first with a question to you, Ms Mills, about
22 what the Professional Standards Commission is and how it
23 fits in with the Anglican Church's arrangements.
24
25 MS MILLS: The Professional Standards Commission is a body
26 created by General Synod. It is a canon that refers to it.
27 Its role is to develop policy and recommendations for the
28 Anglican Church in relation particularly to child
29 protection and the related matters around that area. It
30 puts forward proposals, and over the last since 2004,
31 really, has put forward a number of policies and procedures
32 which are put forward as models for other dioceses to
33 adopt.
34
35 MS SHARP: Was the Professional Standards Commission
36 involved in putting together the Professional Standards
37 Model Ordinance that was passed by the General Synod in
38 2004?
39
40 MS MILLS: Not strictly, no, because the Professional
41 Standards Commission was created in 2004. It had a
42 predecessor body, the Child Protection Committee, and they
43 had input into the Model Professional Standards Ordinance,
44 but the chief drafter of that I think was Mr David Bleby.
45
46 MS SHARP: Just so I understand how it fits together
47 structurally, does the Professional Standards Commission
.21/03/2017 (262) 27010 PANEL 3.1
Transcript produced by DTI
1 sit as a subcommittee of the Standing Committee or what's
2 its relationship to the General Synod?
3
4 MS MILLS: It's created by General Synod. The Standing
5 Committee acts, if I can put in this way, as a sort of
6 executive body of the General Synod, and so the
7 Professional Standards Commission, in putting forward its
8 recommendations and policies, will put those to the
9 Standing Committee, and often at each General Synod then
10 there is a report from the Professional Standards
11 Commission.
12
13 MS SHARP: Thank you. I'll come back to ask you a bit
14 more about the work of the Professional Standards
15 Commission a little later.
16
17 Mr Blake, could I turn to you. You were involved in
18 the development of the Professional Standards Ordinance
19 that was passed by the General Synod in 2004?
20
21 MR BLAKE: Only in a limited sense. The framework for the
22 professional standards regime was developed in a group
23 called the Sexual Abuse Working Group, which met between
24 2002 and 2003. That was working at the same time as the
25 Child Protection Committee, of which I was the chair, and
26 the substance of what it did was to set out a framework for
27 prevention of particularly child sexual abuse, but more
28 generally than that.
29
30 The work of drafting the Model Professional Standards
31 Ordinance was done elsewhere, as Ms Mills said, principally
32 by I think Mr Justice Bleby, as he then was, from South
33 Australia. But after 2004, the Professional Standards
34 Commission has had responsibility for the Professional
35 Standards Ordinance, and in 2008, I think it was, some
36 amendments were made to include child abuse as an area for
37 inquiry under that ordinance, and that came from the
38 Professional Standards Commission.
39
40 MS SHARP: Why was it thought necessary, leading up to
41 2004, to introduce a professional standards framework?
42
43 MR BLAKE: Really, two reasons: one Mr Shand has alluded
44 to, but so far as clergy, the disciplinary regime mandated
45 under the constitution was quasi criminal, with charges
46 being prosecuted and sentences being imposed, and it was
47 thought that that was technical and difficult to achieve,
.21/03/2017 (262) 27011 PANEL 3.1
Transcript produced by DTI
1 and there had been really no example, I think in living
2 memory, of a Diocesan Tribunal having been convened, but
3 the very significant shortcoming was that it did not deal
4 with laypeople and it could not deal with laypeople,
5 because the jurisdiction, as mandated under the National
6 Constitution, was limited to clergy, and it was very clear,
7 in the early 2000s, that the presenting issue of child
8 sexual abuse not only involved clergy but also laypeople.
9
10 MS SHARP: Are you able to tell us what the key components
11 of the professional standards framework were when they were
12 introduced by the General Synod in 2004?
13
14 MR BLAKE: I think the key conceptual difference between
15 the Diocesan Tribunal and the professional standards
16 framework is that it was regulatory or administrative. It
17 was looking at the fitness of a member of the clergy or a
18 layperson to hold office, or in the case of a member of the
19 clergy, to continue in Holy Orders or whether their office
20 or employment should be subject to conditions, and it was
21 also more flexible, in that the outcomes were far greater
22 than the four outcomes that were permitted under the
23 National Constitution.
24
25 So, for example, retraining or requiring a member of
26 the clergy to undergo professional supervision, which might
27 be an outcome under the professional standards regime, was
28 not possible under a charge brought before a Diocesan
29 Tribunal or before the Special Tribunal.
30
31 MS SHARP: Are you drawing a distinction between the
32 question of fitness to hold office, which the professional
33 standards framework deals with, and a disciplinary
34 framework under the Diocesan Tribunal model?
35
36 MR BLAKE: Yes, I am.
37
38 MS SHARP: Is it your view that the professional standards
39 framework does not involve a disciplinary component?
40
41 MR BLAKE: Well, there was a recent decision of the
42 Appellate Tribunal which has referred to the decision of
43 the Full Court of the Supreme Court of South Australia,
44 Harrington v Coote, where the justices of that court drew a
45 distinction between the fitness regime under the
46 Professional Standards Ordinance and the disciplinary
47 regime. I think people colloquially might talk about both
.21/03/2017 (262) 27012 PANEL 3.1
Transcript produced by DTI
1 being disciplinary, because the actions may seem to be
2 disciplinary, but the focus of the professional standards
3 regime is the fitness of the member of the clergy or the
4 layperson to hold office.
5
6 MS SHARP: Thank you. The General Synod in 2004 enacted a
7 Model Professional Standards Ordinance. Did it also enact
8 ancillary - I'll call it legislation at this time, for
9 example, a professional standards protocol?
10
11 MR BLAKE: It didn't enact a Model Professional Standards
12 Ordinance; it recommended that dioceses themselves enact it
13 as part of their diocesan legislation. From memory, at
14 that time, there was no protocol that had been drawn up or
15 recommended to dioceses.
16
17 There was what might be seen as ancillary legislation
18 passed at the time. The first version of the National
19 Register Canon of 2004 was passed, and there's an
20 interaction between the Professional Standards Ordinance
21 and the National Register. An outcome might be, for
22 example, the entry of information on the National Register.
23
24 MS SHARP: I should just indicate to members of the panel
25 that the National Register is a matter that will be
26 considered in tomorrow's panel, so I won't be asking you
27 questions about that today. Nor will I be asking questions
28 about redress; that will be considered tomorrow.
29
30 Mr Blake, under the Professional Standards Ordinance
31 in 2004, were key components of that the creation of an
32 Office of the Director of Professional Standards, the
33 creation of the Professional Standards Committee, and the
34 creation of the Professional Standards Board?
35
36 MR BLAKE: I think in many dioceses there was already an
37 officer called the Director of Professional Standards, but
38 the recommended ordinance did provide for a particular role
39 for the Director of Professional Standards, but there was
40 also, within that ordinance, created a Professional
41 Standards Committee, which had an investigatory role, and a
42 Professional Standards Board, which had the role of making
43 findings of fact and any recommendation flowing out of
44 those findings.
45
46 MS SHARP: And that recommendation would be made to the
47 relevant church authority in relation to how to dispose of
.21/03/2017 (262) 27013 PANEL 3.1
Transcript produced by DTI