What is the Ellis defence in child abuse claims?

Published 16 May 2018

The Victorian government may be about to enforce a law that will prevent churches from relying on the Ellis defence when fighting child abuse compensation claims. But what does this mean?

In 2007, abuse survivor John Ellis brought a case against the Catholic Church for historic crimes he had endured as a child. However, the NSW Court of Appeal ruled plaintiffs were unable to target church assets in such claims because of a loophole that meant church trustees could not be held accountable for crimes committed by individuals.

Put simply, there was no legal entity that plaintiffs could sue after a change of policy enforced by Cardinal George Pell helped to protect the church's wealth.

The church subsequently relied on the Ellis defence to avoid liability from child abuse victims who later sought compensation, although it is not used widely outside of the Archdiocese of Sydney.

Victorian government tackles legal technicality

The Victorian government is working to prevent churches using the Ellis defence through a new bill. On March 6, the Legal Identity of Defendants (Organisational Child Abuse) Bill 2018 was introduced and is widely expected to become an Act and thus enforceable legislation.

The law would enable churches and other unincorporated organisations to nominate a suitable entity that child abuse survivors can sue for compensation. The nominee must have suitable assets to pay any redress required and if the organisation fails to nominate an organisation, the defendant's associated trusts can be sued instead.

"For too long a legal loophole has effectively prevented child abuse survivors from suing some organisations due to a technicality. We're fixing that," said Victorian Premier Daniel Andrews.

Will these laws be introduced elsewhere in Australia?

There currently appears to be no plans for similar legislation to be introduced in other states or territories in Australia.

However, Victoria has often been at the forefront of drafting laws to support child abuse survivors in their quest for justice. For example, the state was the first to abolish time limits on civil claims for child abuse - a measure later taken by the NSW government and other state authorities. 

Therefore, victims may hope other governments follow suit by preventing organisations from relying on the Ellis defence.

Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers keeps up to date with the latest legislative developments across Australia, ensuring our clients always receive the best legal advice.

Talk to one of our expert personal injury lawyers today for a confidential and compassionate discussion about your case.