Noted Jesuit human rights lawyer discusses the sex abuse scandal in Australia
As a lawyer, professor and human rights activist, Frank Brennan, S.J., occupies a unique position in Australian civil and religious society. He is well known throughout the country, both inside and outside the church, for his decades-long work as an advocate in the areas of law, social justice and reconciliation with Aboriginal Australians.
For services to Aboriginals, he was named an Officer of the Order of Australia and the National Trust has classified him as a Living National Treasure. In addition to his work in his native Australia, Father Brennan recently held the Gasson Chair at Boston College's Law School.
On a recent trip to Australia just before Holy Week, I sat down with Father Brennan in Melbourne to discuss the state of the church in Australia in light of the ongoing Royal Commission on child sexual abuse and the unprecedented 20 hours of testimony from Cardinal Pell that was televised nationally.
The following interview is being published in partnership with Eureka Street, an online journal of politics, religion and culture sponsored by the Australian Jesuits.
America: What sense do you have regarding the sex abuse scandal here in Australia and how it compares to the United States?
Frank Brennan, S.J.: In Australia we are not as litigious as you are in America and damages are usually not as high as they are in the United States. But having said that I have no doubt there will be further developments in the law here in Australia. Particularly in light of much of the evidence that many of the bishops have given that seems to indicate that prior to 1996 it would be very difficult to argue that the best interests of the child was the highest priority. Prior to 1996 there was a great lack of awareness among the senior church leaders and there was a lack of action by senior church leaders.
Now without imputing moral blame necessarily, you simply have to say that the system was broken and if you had a system and it was broken and children were being abused because of that, I think you're talking about legal liability not just moral liability.
America: Despite the fact that you and Cardinal Pell have had your differences over the years, you were pretty public about saying that he deserved due process. What prompted that?
FB: Well, I thought there was a sort of lynch mob mentality developing. A popular singer putting out a song that says he was scum, a coward and a buffoon. Well it's a free country, singers can say what they like, but to have the song being played routinely on all the mainstream media before he appeared seemed a bit unfair.
But then what was truly objectionable is that the Royal Commission was engaged in two case studies. The first into the archdiocese of Melbourne where Pell had been an auxiliary bishop and then the archbishop. The second was into the diocese of Ballarat where he had been a consultor to the bishop of Ballarat many years before when he was a young priest.
Just before Cardinal Pell was to give evidence there was a leak which must have emanated originally from the Victoria Police Force, suggesting that Pell himself was being investigated for child abuse. Now these are completely unsubstantiated and uninvestigated complaints. To have this complaint emanating originally from the Victorian police force when the Royal Commission on these two case studies was investigating not only the Catholic Church but also the Victoria Police, made it very dubious.
Secondly, Victoria is one of the sponsoring governments of the Royal Commission. To have its own police force in someway involved in a leaking exercise when you have a star witness about to appear, I thought risked muddying the waters significantly. And though Cardinal Pell and I have had our past tensions I was strongly of the view that a witness like that deserved the protections of due process and natural justice.
America: Has anything happened with those allegations?
FB: Well, nothing has happened and Cardinal Pell himself immediately referred the matter to the Victorian government demanding an investigation into the leak. So we'll have to wait and see what happens with that but it’s not made easy when the Victorian police commissioner himself goes on the radio and says he hasn't even read Cardinal Pell’s statement. Well that tests the credulity of the situation pretty substantially you'd have to say.
Somebody was definitely trying to throw a red herring out there and basically my point as a lawyer was to simply say that, look, people are up to no good here and that if victims are to really benefit from a Royal Commission of this sort then you have to ensure that the key witness, Pell, is given due process so that everyone can be assured that there can be a good outcome.
Let's face it, there are three key outcomes that you want from the commission of this sort. First is some sense of closure for the victims themselves. Well, there was such hysteria building about Pell that I found it difficult to see how people would be coming to any kind of closure. If anything it seemed to be re-opening old wounds.
Secondly, what you need is a national redress scheme where you have buy-in from all major institutions. Well, in order to get that—and we don't yet have it from national politicians—you need everyone at the table, including those that might be Pell supporters.
Thirdly, in order to protect children in the future within a federal system like Australia, you've got to ensure that national institutions like churches can work cooperatively with state agencies like the state police forces.
Now if you have the Victorian police up to no good against Cardinal Pell it is going to make it very difficult in the future for the Catholic Church and the Victorian police to work cooperatively together. Bear in mind there is a history to this when the Victorian parliamentary inquiry which had looked into what was called the Melbourne Response. That was Cardinal Pell’s attempt when he was archbishop of Melbourne to set up a protocol and procedure for granting damages, compensation and counseling for victims. And that was worked out in close cooperation with the Victorian police, including the Victorian government and the Victorian Solicitor General. But when it came time for the Victorian inquiry, Victorian police ran 1,000,000 miles and said, “Oh, no, we never approved of it.” That sort of thing was very unhelpful.
America: Do you think bishops or other church leaders might receive jail sentences?
FB: There are some offenses such as failing to report criminal activity and we have one archbishop at the moment, Archbishop Philip Wilson, the archbishop of Adelaide, who is facing such a charge. We don't know the details of that charge. On Dec. 30, the archbishop said he was going back to work because he said that he was “sick of waiting.” That, for me as a lawyer, is a strange decision. I think that it's got to the stage where it's probably only Catholic bishops in Australia who could be involved with the running of organizations charged with the care of children who, if charged with a criminal offense in relation to such an activity, might say, “Well, I think I'm just going to keep turning up to the office every day.” I think that we have to take the rule of law a bit more seriously than that.
America: In terms of the Royal Commission's investigation into sex abuse and Australian life, I feel like we're in a little bit of the calm before the storm moment right now. What is your sense of what the Royal Commissions is doing and how is the church bracing itself?
FB: Well, the first thing to say especially for American readers is that the Royal Commission is a special sort of English-Australian beast. You are not used to that sort of thing in America. It's a bit like a grand jury but a Royal Commission is given a task by government and has the capacity to subpoena people and subpoena documents to conduct a pretty ruthless inquiry into whatever the issue at hand is. Now what was particularly distinctive about this Royal Commission [is that] instead of just having one Royal Commissioner there are six of them. Initially when the commission was set up it was said that it would run for three years. Normally a commission would run for about a year.
There's a saying in Australian politics that “a government should never call a Royal Commission unless it already knows the answer the commission is going to give.” No one knew what answers this commission was going to give when this commission was announced. I was little dubious about it because I said when the prime minister announced it that it would take at least five years. People at the time scoffed at this saying that I was just engaging in scare tactics. But indeed over time they applied for an extension and it is to be a five-year Royal Commission.
This Royal Commission is not simply focused on the Catholic Church. It is focused across institutions of Australia. So it's also looking into institutions like the Boy Scouts, state child welfare institutions, etc. Because Australia is a federation, it gets complex. This is a Royal Commission sponsored not just by the national government by the by the state governments and I've always said that the rubber will really hit the road when we get clarity about the working relationship between institutions like churches together with the state child welfare agencies and the state police forces. So that's one of the very difficult tasks it has to perform.
One disadvantage of a five-year Royal Commission is that even institutions that are well-meaning and saying, “Well, yes, we have to clean up our act,” feel as if they are put on hold for five years until the Royal Commission finally reports. So that if you make changes in your own protocols as things are going along they might prove to be inadequate in terms of whatever standards or procedures that Royal Commission might stipulate.
If you look at the Catholic Church, it has a protocol called “Towards Healing” and the Melbourne archdiocese has its own protocol called “The Melbourne Response.” Now we know, for example, that the Melbourne archdiocese quite responsibly commissioned a senior lawyer to review the Melbourne Response and he reported back in September last year. But the question is what do you do with the report given that what is hanging over you in two years time will be a definitive report from the Royal Commission, which will stipulate what should be the preferred protocol and approach in dealing with these issues.
So that's a bit why we’re in the calm before the storm. We’ve got another two years before the end of the five-year waiting period and we get a final report from the Royal Commission.
The other thing to say about Royal Commissions generally is that, yes, they can be great media events, particularly when you have a star witness like Cardinal Pell. But inevitably there's a sense of let-down after the Royal Commission reports because it reports to the government of the day, and then the report sits on the government desk while they then set up internal working groups within government to determine what the government response should be and what legislation is required. That's often where the very painstaking work is to be done, but it doesn't have the same kind of media appeal as putting Cardinal Pell there in the spotlight and having 20 hours of cross-examination. Whatever comes of that is still some years down the track.
America: What is your sense of the Australian people’s reaction to all this, particularly among Catholics?
FB: A lot of people’s despair has already manifested itself. I think it's fair to say that a lot of people have given up going to Mass. But it's equally fair to say that the demand for Catholic schools in Australia is the greatest it’s ever been, the demand for Catholic health care is the greatest ever and the demand for Catholic social services is the greatest it’s ever been in Australia. So where you have the human face of Christ out there and actually delivering the services I think there's tended in the past to be greater lay control and of course particularly in the health sector there's always been very strong control by women in the church. But when it comes to parishes and the administration of dioceses I think that's where the slow death has been occurring.
I think that the Royal Commission and its outcomes are simply one part of that. The other part of it is the more generic issue as to where your post-modern generation finds the need for an institutional church, a sacramental priesthood in order to be able to embrace the transcendent or to be able to express that which is spiritual in order to be able to find a place for community in living a life of faith. And also making sense of ideas such as tradition and authority in that we all know the young people for whom ideas of traditional authority don't really have much relevance when it comes to the spiritual domain.
America: Do you have any hope for that?
FB: I do. I don't despair in terms of getting them all back to church, but I think one of the good things that happened here in Australia as in United States a generation ago, we had a long-running debate about the place of conscience over and against that of authority. In fact I wrote a book at the time called Acting on Conscience. That debate is over and done with, in that basically the only way forward now is in terms of espousing that the individual form and inform her conscience and to that conscience be true. The church leadership and traditional authority need to be on hand to assist in that collaborative task. The idea that you would simply say that all the faithful need do would be to follow the episcopal leadership is no longer saleable. We’ve seen too many bishops on display when it came to the simple issue of protecting children whose interests were secondary.
America: So, what’s it like being a living national treasure?
FB: [Laughs] You cope as best you can. Every 10 years I go to America for an appointment at a Jesuit university…the nice thing is to go to a place where nobody knows you and the phone isn’t for you. [Laughs] Whereas when you’re “Living National Treasure” in a small place like Australia, you normally get called in on controversies of all manner and sorts.