ACT moves to outlaw Ellis church sex abuse defence

The Royal Commission into Institutional Responses to Child Sexual Abuse recommended changes to civil laws to allow survivors to make a claim against an unincorporated body like the church after the experience of abuse survivor John Ellis.

The former altar boy attempted to sue the Catholic Church in 2007 for damages, as he was abused by a paedophile priest.

However the church managed to argue it did not legally exist as its assets were held in a trust which was protected from legal action.

NSW and Victoria have already moved to close the loophole, and ACT Attorney-General Gordon Ramsay said the territory government would also "smooth the road to justice" for survivors.

"The bill is aimed at ending the use of the ‘Ellis defence’ and to ensure that plaintiffs are not unreasonably deprived of the opportunity for full consideration of the merits of their claim," Mr Ramsay said.

"The bill provides greater certainty for these claimants by avoiding or reducing the possibility that the claimant may succeed in establishing liability but not receive any financial benefit because the defendant is unincorporated."

The ACT's laws will apply retrospectively and gives the unincorporated body the chance to nominate a proper defendant, a clause Mr Ramsay said "achieves the balance suggested by the
royal commission".

"On the one hand it recognises that institutions should retain the ability to conduct their affairs in a variety of ways, and, on the other hand, ensuring that plaintiffs have a reasonable ‘fall-back’ option that is not dependent upon the co-operation of the institution," Mr Ramsay said.

The draft legislation comes more than two months after the territory's parliament passed controversial laws that will extend the ACT's reportable conduct scheme to the confessional, potentially forcing priests to break the seal of confession.

That clause will come into effect from March 31 next year.