From Mercator Net

Was the Royal Commission hand in glove with the “Get Pell” campaign?

After Cardinal George Pell’s successful appeal against his conviction for sexual abuse, the “Get Pell” campaign died down. But the release of three unredacted reports of the Royal Commission into Institutional Responses to Child Sexual Abuse has given it a second wind.

Although they were not directly relevant, these documents were redacted because they might have prejudicially swayed the juries in the Cardinal’s two trials.

In the redacted text, the Royal Commission effectively accused Cardinal Pell of lying about two important meetings involving abusive priests. His position was that he was deceived about their sexual abuse in both instances. The Royal Commission contended that this was implausible. Armed with this criticism, Pell’s critics are having a field day.

The Royal Commission is a mixed bag. It got much right — and some things seriously wrong, especially his knowledge of the crimes of two serious abusers, Gerald Ridsdale and Peter Searson. Its findings should be compared to a 2015 inquiry by the Family Development Committee of the Victorian Parliament, Betrayal of Trust: Inquiry Into the Handling of Child Abuse by Religious and Other Non Government Organisations. That inquiry made no finding against Pell, although it was critical of other Church leaders.

What made the abuse possible?

In the 1960s, 1970s, 1980s, and 1990s there was a culture of covering up the crimes of men who should never have been admitted to the priesthood or religious life. Authorities failed to take action under civil and under canon law, and transferred them from one place to another to give them “a new start”.  

There are standards of behaviour which transcend time, place and circumstance. These were betrayed in allowing these predators continued access to children. Had they known the facts about Ridsdale and Searson, Australian Catholics would have demanded that they be defrocked and kept under lock and key — with the key thrown to the bottom of the ocean.

Ridsdale and Searson should have been reported to the police– although there was an issue as to whether the police would have prosecuted. But the bishops could have at least removed Ridsdale and Searson from ministry. Chapters VI and VII of the Catholic Church’s Code of Canon Law provide a remedy for wayward clerics.

An antinomian culture ignored this; law was out of fashion. But law, both civil and canon, was what was required to deal with criminals like Ridsdale and Searson.

George Pell’s career

Born in 1941, George Pell grew up in Ballarat and went to school there. He was ordained in Rome in 1966 as a priest of the Diocese of Ballarat. Following studies in Rome and at Oxford he returned to Australia in 1971.

In 1973, Fr Pell was appointed to the parish of St Alipius Ballarat East. Ridsdale actually lived in the same presbytery for a while, although Pell was unaware of Ridsdale’s crimes. This is hardly surprising, as criminals like Ridsdale are highly secretive and manipulative.

Fr Pell was also Episcopal Vicar for Education and was mainly taken up with this role, with limited scope for parish work. He taught at what was then the Ballarat Teachers’ College, and was the director of what became the Aquinas campus of the Institute of Catholic Education (1974-1984) and principal of the Institute of Catholic Education (1981-1984).

In 1985 Fr Pell was appointed Rector of Corpus Christi Seminary at Werribee, a suburb of Melbourne. Although still incardinated in Ballarat, he was, to all intents and purposes, gone from the Ballarat Diocese.

In 1987 Pope John Paul II appointed Fr Pell as an Auxiliary Bishop of the Archdiocese of Melbourne. His superior was Frank Little, who was was Archbishop of Melbourne from 1974 until his resignation in 1996. The relationship between the two men was distant, with Pell excluded from a significant role in the administration of the Archdiocese. As Little said of Bishop Pell’s appointment, “others do the choosing”. Bishop Pell was assigned to the southern region of Melbourne where Searson was a parish priest.

In 1996 Pell became Archbishop. In 1997, he placed Searson on administrative leave and told him to leave his presbytery immediately. In October 1998, Pell commenced a canonical process for the removal of Searson’s faculties. He was never permitted to return to priestly ministry.

The “findings” by the Royal Commission against Cardinal Pell are ironic, given his record as a reformer who cleaned up the mess left by Archbishop Little. In 1996 he established the Melbourne Response, the first scheme in Australia to deal comprehensively with sexual abuse in Church institutions, and one of the first in the world. Towards Healing, the response for the other Australian dioceses, came shortly afterwards. As Archbishop of Melbourne, Pell was responsible for over thirty priests ceasing ministry. Wherever Pell was, he reformed the seminaries — in Melbourne and later in Sydney. In 2001 he was appointed as Archbishop of Sydney.

The scope of a Royal Commission’s powers

To understand the Royal Commission’s “findings”, one must understand what a Royal Commission is. This one was announced by the Gillard Government in 2012 and it delivered its final report in 2017.

The Letters Patent make it clear that the Commission was intended to make policy recommendations about child sexual abuse within both public and private institutions. These issues included:

• what institutions and governments should do to better protect children;
• what institutions and governments should do to ensure justice for victims;
• the experience of people directly or indirectly affected by child sexual abuse, and the provision of opportunities for them to share their experiences in appropriate ways;
• the adequacy and appropriateness of responses by institutions, and their officials.

Much of the Royal Commission’s time was taken up with over 8,000 private sessions listening to victims tell their stories of child sexual abuse. This delayed the final report by two years — from 2015 to 2017.

The Royal Commission spent much of its time, not on policy issues, but seeking to investigate historic abuse, even though documents were lacking, witnesses’ memories were failing, witnesses had died or disappeared or were not called to give evidence for other reasons.

Justice Peter Young, the editor of the Australian Law Journal, commented on this:

It is reported that this commission has requested that its term be extended, possibly by two years.

It may well be that the commission has a large number of cases which it wishes to investigate further. However, the governments considering the possible extension need to ask themselves what is the basic purpose of the commission.

The commission is essentially enquiring into alleged abuse by institutions including what is commonly called ‘cover up’ of abuse. The basic reason for this is to expose what occurred in the past and to make recommendations to ensure that it does not reoccur.

What needs to be asked is whether much is to be gained by examining in detail more specific cases. If a general pattern has already emerged from the cases already considered, examining another 1,000 or even 100 is not likely to affect the ultimate recommendations as to the future.

Why did the Royal Commission focus on religious schools?

The Royal Commission focused, as regards schools, on religious schools. Why this happened has never been satisfactorily explained – and there is ample evidence that children in state schools have also been victims of sexual abuse. By way of example, victims of paedophile teachers in state schools in Tasmania are currently seeking an investigation as to why alleged paedophiles were moved between state schools from the 1970s to the 1990s.

This is a matter that might have been investigated, not only in Tasmania, but in all states.

It has been suggested the Royal Commission unreasonably targeted religious schools, especially those of the Catholic Church. Its final report fails to set out clear and publicly verifiable criteria which justified this focus.

The recommendations of the Royal Commission relating to religious institutions arguably go beyond sexual abuse and appear to be aimed at imposing a secularist identity on them. They offend the separation of church and state and respect for religious freedom which has been a feature of Australian history. They support Enlightenment hostility towards religion and ideologues seeking to control and destroy religious institutions.

The judicial status of a Royal Commission

A Royal Commission is not a court. Although its chair, Justice Peter McClellan, was a judge of the Supreme Court of New South Wales, he was not exercising his authority as a judge. Nevertheless, in the proceedings and documents of the Royal Commission, Justice McClellan is constantly referred to as a judge. At no time did he seek to dissuade counsel and witnesses from referring to him as a judge.

Lawyers dispute whether judges should accept appointments as Royal Commissioners, it being suggested the role is inconsistent with their independence and freedom of political involvement.

The Royal Commission had five other members. The authors of Case Study 16, which dealt with the Ballarat Diocese, and of Case Study 35, which dealt with the Archdiocese of Melbourne, were Justice McClellan, Justice Jennifer Coate, a judge of the Family Court, and Andrew Murray, a former Australian Democrats Senator.

A Royal Commission is an exercise of largely unfettered executive, not judicial, power. It is not adversarial, with the judge acting as an impartial observer between parties. Instead it is a pro-active and powerful investigatory body whose approach is determined by its members – and its fairness relies on their moderation and good sense. It is not bound by the usual rules of practice designed to ensure a level playing field between the parties; it is not bound by the rules of evidence; it is not bound by pleadings to ensure protection to a person accused of misconduct; its findings are not subject to appeal.

The final report of the Royal Commission was unanimous – which is strange when one considers there were six Commissioners, and the subject matter of the Commission involved matters about which one would expect a range of views.

Political cynics assert that no government ever establishes a Royal Commission without knowing what the result will be.

The standard of proof for a Royal Commission

The standard of proof adopted by the Royal Commission is known as the Briginshaw test. The more serious the allegation, the higher the degree of probability required before it can be reasonably satisfied as to its truth.

On behalf of Cardinal Pell, his counsel submitted:

[The Royal Commission cannot ignore] the corrosive effect of time on the ability to be comfortably satisfied of such matters as to reach a ‘correct and just conclusion’, particularly in light of the consequences of its finding. A correct application of the Briginshaw principles does not mean doing the best one can on the limited or stale evidence available, and determining whether matters may be plausible or by filling gaps in the evidence. The effluxion of time and the historical nature of the events in question is a critical integer in the fact-finding process and a level of proof consistent with Briginshaw.

Ultimately, this may mean that the Royal Commission is only able to address issues at the institutional level, and is unable to determine the factual minutiae of meetings, conversations and individual understandings of the matter before it.

That submission was rejected by the Royal Commission.

Investigations of historic allegations

Australian courts have commented on the difficulty in dealing with historic allegations. In Brisbane South Regional Health Authority v Taylor (1996) High Court Justice McHugh commented that, where there is delay, the quality of justice deteriorates. Sometimes the deterioration in quality is recognisable, as in the case where a crucial witness is dead, or an important document has been destroyed. But sometimes the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. What has been forgotten can rarely be shown.

So, it must often happen that important, perhaps decisive evidence, has disappeared without anybody “knowing” that it had ever existed. Time will also diminish the significance of a known fact or circumstance because its relationship to a matter is no longer as apparent as it was when the matter arose. A finding may appear well based on the evidence given in proceedings, but if the decisionmaker had all the evidence concerning the matter, an opposite result may have ensued.

The longer the delay, the more likely it is that a decision will be made on less evidence than was available to the parties at the time.

As an authority on this, we can cite Justice McClellan himself. He wrote in the Australian Law Journal in 2006:

…the reality is that our memories are unstable and malleable. We are all aware of instances where our memories have proved inaccurate, despite the fact that we were sure they were correct. Even without external influences memory will fade over time … it is particularly important to recognise the susceptibility of memory to suggestion.

Persons who are the subject of historic allegations of misconduct are disadvantaged because their own memory of events may have receded, and independent witnesses may have died or disappeared. Very few, if any, of us will recall the detail of a meeting we had 25 to 30 years ago.

The case against Cardinal Pell was based on two meetings — one in 1982 in Ballarat and one in 1989 in Melbourne. The Royal Commission gave insufficient consideration to the unfairness of making “findings” in respect of meetings up to 33 years before where there were no adequate contemporaneous written records, where relevant witnesses were not called because they were dead or, for some other reason, and where the memory of the witnesses called was obviously fallible.

The case of Fr Gerald Ridsdale

Both Ridsdale and Searson are despicable characters.

Ridsdale, now aged 85, has been in prison since 1994. He is known to have committed 179 offences between 1961 and 1988 involving at least 69 victims. It was common for Ridsdale to befriend his victims’ devout Catholic families. One victim was abused at his home 25 or 30 times. Ridsdale’s earliest release date is 8 April 2025 when he will be 90. His sentence expires on 1 September 2031. The average age of the children at the time of the abuse was 10 years of age for females and 11 years of age for males.

Ridsdale studied at Corpus Christi College in the late 50s. While in the seminary, Ridsdale helped out on camps for underprivileged children where he sexually abused at least one boy. He was ordained in 1961. Thereafter, he held 16 different appointments over his 29 years as a priest. He spent, on average, 1.8 years per appointment.

Ridsdale admitted in the 1970s to Bishop Mulkearns that he had offended against children. Bishop Mulkearns had sufficient belief in the various complaints brought to him that he sent Ridsdale for treatment.

Complaints were made in 1981 to Bishop’s Mulkearns’ secretary, Fr Finnian, by several parents about Ridsdale’s conduct in the small farming town of Mortlake. A complaint was made to the former Vicar General, Monsignor Fiscalini, of sexual molestation by Ridsdale and this complaint was relayed to Bishop Mulkearns. Shortly prior to Ridsdale’s transfer from Mortlake in 1982, he had a 14-year-old boy living with him in the presbytery, sleeping, in fact, in his bedroom. The Bishop knew about this.

The principal and a teacher at the local Catholic primary school also told him about their concerns. Monsignor Nolan, the then Vicar-General, received complaints. Bishop Mulkearns removed Ridsdale from the Mortlake parish in 1982 — but he should have removed him from all ministry.

Interestingly, the Royal Commission took evidence from Ridsdale. Its report contains nothing to suggest that it evaluated Ridsdale’s evidence in the light of his manipulative and two-faced character.

The role of Bishop Mulkearns

The response of Bishop Mulkearns to complaints and concerns about Ridsdale and three other abusive priests in his diocese was disturbingly similar. It was based on avoiding scandal, the maintenance of the reputation of the Church, and loyalty to priests. Only if there was a possibility that abuse would become widely known would he act.

Invariably, that action was to remove these priests from the community for a short time and then place them in a more distant parish. Restrictions were not placed on them nor were they supervised. Untrue or misleading reasons for a priest’s departure were given to the old parish and no warning was given to the new parish.

Often the offending priest was sent away for a period of “treatment”, “reflection” or “study” before a new parish appointment. The evidence revealed a preference for sending offending clergy to psychologists or psychiatrists who were ordained priests or who were Catholics. Frequently, priests who had received “treatment” were returned to parishes where they reoffended. The efficacy of the “treatment” did not appear to be questioned after these events.

Euphemistic and elliptical language was often used in correspondence and in minutes of meetings. There was repeated reference to “pressures”, “strains” and “problems.” On occasion, records were deliberately not kept or were destroyed.

Bishop Mulkearns and other clergy were dismissive of complaints and complainants. The response to reports was characterised by secrecy and assurances that the matter would be dealt with. There was a consistent failure to follow up, ask questions or investigate reports. Reports were never made to the police, and victims were not supported.

Bishop Mulkearns alone made decisions about his priests. Authority in the diocese was hierarchical and did not encourage priests to challenge him. Indeed, the Royal Commission was told that, with very few exceptions, Bishop Mulkearns did not pass on information to his consultors. He dealt with difficult cases personally, sometimes even deceiving his own consultors. Bad decision making was unchecked.

The Royal Commission accepted that only Bishop Mulkearns had power and authority to take action in respect of a priest against whom an allegation was made. However, it did not accept that he did not sometimes discuss these allegations. It declared that the true reason for removing a priest from a parish was sometimes disclosed to his close advisors.

A detailed look at the meeting of Ballarat Consultors

The evidence in relation to the meeting of the College of Consultors of the Ballarat Diocese on 14 September 1982 can be summarised as follows:

First of all, this is the relevant excerpt from the minutes:

“The Bishop advised that it had become necessary for Fr Gerald Ridsdale to move from the Parish at Mortlake. Negotiations are under way to have him work with the Catholic Enquiry Centre in Sydney. A new appointment to Mortlake will be necessary, to take effect after October 17.”

There were several witnesses with respect to this crucial meeting.

First and foremost was Bishop Mulkearns.  He gave evidence before the Royal Commission, but not about this meeting as he died before he was able to do so. The Victorian Parliament had subpoenaed Bishop Mulkearns to give evidence in 2013, two years before. At the time, after an independent neuropsychological assessment, the Parliamentary Committee stated that he did not have the capacity to present reliable evidence. This assessment was not referred to by the Royal Commission but should have been considered before Bishop Mulkearns was allowed to give any evidence.

Monsignor Fiscalini, the Vicar General from 1982 to 1991, gave no evidence although he was aware of the child sexual assault allegations against Ridsdale. Fr Henry Nolan, the Vicar General from 1991 to 1998, gave no evidence before the Royal Commission. He, too, was aware of the allegations.

Fr Martin did not give evidence and was not aware of child sexual assault allegations against Ridsdale. Fr Daniel Arundell did give evidence but was not aware of child sexual assault allegations against Ridsdale.

Fr Bryant gave evidence and had some recollection of the meeting as it was the very first one which he had attended. Fr Bryant recalled that Bishop Mulkearns referred to Ridsdale and said that there was a “problem with homosexuality.” He was the only witness with an actual recollection of what Bishop Mulkearn told the meeting.

Fr Finnigan, who was Bishop Mulkearn’s secretary, attended the meeting. He is now a retired bishop. He told the Royal Commission that he would not have recorded in the minutes anything about an individual’s suitability as a priest for appointment and he would have ensured that the minutes would not have recorded anything about sexual abuse of children.

The Royal Commission concluded his evidence was highly unsatisfactory. He gave the clear impression that he was seeking to protect himself and the Church or Bishop Mulkearns and that he made no effort to give clear or honest evidence.

Finally, Cardinal Pell gave evidence. He refreshed his memory from the minutes of the meeting (which he had attended as Father Pell). He did not recall Bishop Mulkearns saying that the move was because of homosexuality. Cardinal Pell recalled Ridsdale as a somewhat difficult person who had been shifted around a bit. Having accepted what Bishop Mulkearns had to say, he felt that it was appropriate for Ridsdale to be moved. There is no evidence that he was aware of child sexual assault allegations against Ridsdale.

Counsel Assisting, Gail Furness, stated that it was the common understanding at this meeting that complaints about child sexual abuse against Ridsdale were the reason that it had become necessary to move him. But there was no proper evidentiary basis for this. There was no evidence that Fr Daniel Arundell, Fr Bryant, Fr Martin or Fr Pell knew before or at the meeting of any alleged child sexual assaults by Ridsdale.

Notwithstanding this lack of evidence, the Royal Commission stated that it was satisfied that Bishop Mulkearns had fully explained to the consultors why it was necessary to move Ridsdale. He had referred to homosexuality — but that was not all that he said. It was inconceivable that Bishop Mulkearns would have deceived his consultors. True, his overwhelming concern was to protect his Diocese from further scandal. But that concern did not apply to his own consultors.

So, according to the Royal Commission, it is implausible that Bishop Mulkearns did not inform those present about the allegations. Consequently, it rejected Cardinal Pell’s evidence that “paedophilia was not mentioned” and that the “true” reason for Ridsdale’s transfer was not given.

But this conclusion was speculation not based on any evidence. Nothing in the minutes and nothing in the evidence of the consultors established the factual basis for this determination. The Royal Commission’s “findings” that Cardinal Pell in September 1982 was aware of the child sexual abuse allegations against Ridsdale have no basis in established fact.

The case of Fr Peter Searson

Fr Peter Searson was born in 1923, and ordained a priest for the Archdiocese of Melbourne in 1962. It is a measure of the incompetence of the Victorian Police that criminal proceedings were never prosecuted against Searson.

In late 1974, Archbishop Frank Little received a complaint from a young adult woman that she had been raped by Searson. Further complaints were received by Archbishop Little as to Searson’s sexual conduct between 1977 and 1984 while Searson was parish priest of Sunbury. Further complaints about “his unpleasant, strange, aggressive and violent conduct” were fruitlessly made to Archbishop Little when Searson was parish priest at Doveton from 1984 to 1996. No action was taken by Archbishop Little.

Monsignor Connors, Vicar General from 1976 until 1987, and an auxiliary bishop of the Archdiocese of Melbourne from 1987 until 1996, said that Archbishop Little was too slow to act on complaints and had difficulty accepting that a priest was an offender. He accepted that this was a “blind spot” for the Archbishop.

The Vicar General in 1996 and 1997, Monsignor Doyle, said that Archbishop Little had an exaggerated respect for the priesthood, which was why he chose not to act on complaints. He believed that he was in denial and shut his eyes to allegations.

Bishop Pell, as an auxiliary to Archbishop Little, was kept busy doing confirmations and the like, far from the administrative centre of the Archdiocese.

The CEO and the Vicar General Monsignor Deakin (and therefore Archbishop Little), were aware of the long history of complaints about Searson and had failed to act over many years. But they had kept Bishop Pell in the dark.

In November 1989, a delegation of teachers from the Catholic primary school in Doveton arranged a meeting with Bishop Pell to discuss their complaints about Searson. Bishop Pell was not backgrounded by the Archdiocese. Nor, according to Bishop Pell, was he briefed in any detail by Mr Norm Lalor, the Chair of the CEO primary staff group. For unexplained reasons, no memorandum was produced as evidence. Mr Lalor did not give evidence before the Royal Commission. Strangely, Bishop Pell was not provided with a detailed memo setting out Searson’s long history of inappropriate behaviour.

What Bishop Pell did know was that Searson denied the allegations against him. Furthermore, the teachers did not ask for the Searson’s removal. The union representative, Mr Palmer, even recalled that one of the teachers suggested that Searson should be given “a second chance.” He could not recall whether the concerns expressed by the teachers were sexual in nature.

Following the meeting, Bishop Pell informed both Archbishop Little and the Vicar General of the teachers’ concerns.

The Royal Commission found Bishop Pell failed to take effective action in respect of Searson. But what more could Bishop Pell have reasonably done? Archbishop Little was the relevant decision maker, had kept him from any position of administrative authority and had left him in the dark about previous complaints. The Royal Commission says that Bishop Pell should have advised Archbishop Little to remove Searson. But such advice would have been ignored.  

The Royal Commission and the Get Pell Campaign

The “findings” as regards the Ballarat College of Consultors meeting, in the absence of evidence, are consistent with the Royal Commission being part of the Get Pell campaign.

The “findings” about the Melbourne meeting, in circumstances where then-Bishop Pell reported on the meeting to both Archbishop Little, and the Vicar General and then removed Searson from ministry when he became Archbishop of Melbourne – suggest the Royal Commission was part of the Get Pell campaign.

These flawed, unredacted “findings” suggest that the Royal Commission needs to be carefully scrutinised, not only in respect of its “findings” against Cardinal Pell, but more generally.

Michael McAuley

 

Michael McAuley is a barrister practising in Sydney, Australia. More by Michael McAuley