Australian Attorney-General George Brandis' data retention spin ignores a Court of Justice of the European Union judgment

At a press conference on 30 October 2014 Federal Attorney-General George Brandis stated:

Data retention regimes currently operate in some 29 countries including most European countries and the United States. I want to stress, as Mr Turnbull stressed in his second reading speech, that this bill confers no new powers on ASIO, the AFP or on law enforcement agencies. They can already access metadata under the existing law; the purpose of the bill is to establish a common, industry wide standard for metadata retention and to ensure that metadata continues to be retained so that the investigative capabilities of the intelligence agencies and the police are not degraded.

In making such a statement Brandis ignores four subjects – the right to privacy of the ordinary individual, the level of concern existing in Europe in relation to data retention, the issue of proportional response and, the fact the European Court of Justice had addressed the first three subjects when rejecting the validity of European Union Directive 2006/24/EC & amending Directive 2002/58/EC which sought to force telecommunication corporations to retain metadata for six months.

The history behind C-293/12 - Digital Rights Ireland and Seitlinger and Others (English court transcript)  according to Practical Law:

In 2010, the Irish High Court granted a motion by campaign group Digital Rights Ireland to refer to the ECJ a number of questions concerning the compatibility of the Data Retention Directive with Article 5(4) of the TEU, and with certain fundamental rights protected by the Charter.

In 2012, a number of different applicants, including the state government of Carinthia and over 11,000 individual applicants, brought an action before the Austrian Constitutional Court claiming that the Austrian law transposing the Directive infringed their rights under Article 8 of the Charter. Both courts referred questions regarding the validity of the Directive to the ECJ, which joined them in 2013.

The Irish High Court referred the following questions to the ECJ:

Is the restriction on the rights of the plaintiff arising from the requirements in Articles 3, 4 and 6 of the Directive incompatible with Article 5(4) of the TEU in that it is disproportionate or unnecessary or inappropriate to achieve the legitimate aims of:

ensuring that certain data are available for the purposes of investigation, detection and prosecution of serious crime; and/or

ensuring the proper functioning of the internal market of the EU?

In particular, the High Court enquired whether the Directive was compatible with Articles 7, 8 and 11 of the Charter and Article 8 of the Convention.

To what extent do the Treaties, and specifically the principle of loyal co-operation, require a national court to enquire into, and assess, the compatibility of the national implementing measures for the Directive with the protections afforded by the Charter, including Article 7 of the Charter (as informed by Article 8 of the Convention)?

The Austrian Constitutional Court referred the following question to the ECJ:

Are Articles 3 to 7 of the Directive compatible with Articles 7, 8 and 11 of the Charter?

In addition, the court referred a number of questions concerning the interpretation of the EU Treaties, which are not relevant for the purpose of this development.

In December 2013, Advocate General Cruz Villalón gave an opinion in which he concluded that the Data Retention Directive is, as a whole, incompatible with Article 52(1) of the Charter, since the limitations on the exercise of fundamental rights it contains are not accompanied by the necessary principles for governing the guarantees needed to regulate access to the data and their use (see Legal update, Advocate General finds Data Retention Directive incompatible with right to privacy). He recommended that the ECJ find that the Directive is invalid, but that the effects of that finding should be suspended pending adoption by the EU of the measures necessary to remedy the invalidity.

Excerpt from the Court of Justice of the European Union media release of 8 April 2014 with regard to the judgment declaring the data retention directives to be invalid without suspending effect of its findings:

The Court observes first of all that the data to be retained make it possible, in particular, (1) to know the identity of the person with whom a subscriber or registered user has communicated and by what means, (2) to identify the time of the communication as well as the place from which that communication took place and (3) to know the frequency of the communications of the subscriber or registered user with certain persons during a given period. Those data, taken as a whole, may provide very precise information on the private lives of the persons whose data are retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, activities carried out, social relationships and the social environments frequented.

The Court takes the view that, by requiring the retention of those data and by allowing the competent national authorities to access those data, the directive interferes in a particularly serious manner with the fundamental rights to respect for private life and to the protection of personal data. Furthermore, the fact that data are retained and subsequently used without the subscriber or registered user being informed is likely to generate in the persons concerned a feeling that their private lives are the subject of constant surveillance…

Court of Justice of the European Union declares the Data Retention Directive to be invalid (April 2014) by clarencegirl

In Abbott's Australia the Hansard record can no longer be relied upon

The original question and answer which revealed that the Abbott Government was improperly altering the Hansard record:

The alterations to what is supposed to be an accurate historical record of what was said in the Australian Parliament:

BEFORE - ORIGINAL TEXT 

Mr JOYCE (New England—Minister for Agriculture and Deputy Leader of The Nationals) (14:32): I thank the member for Hunter for his question. He would be happy to know that over 4,000 applications have been approved for the farm household allowance. This is a substantial amount of money. This means that they are receiving between $900 and $1,000 a fortnight. We have actually changed conditions so that we can bring dignity back into these people's lives. We have actually made it happen. You would be happy to know, Madam Speaker, that we approved $280 million in our drought package and concessional rates of four per cent. We have put money on the table—over $22 million for other water infrastructure. These are the sorts of real outcomes that we are providing…..

Mr JOYCE: I am happy to announce that when we arrived in government they had not signed up all of the states and territories, so we actually got the conditions in place for the concessional farm finance package, which they might have started but could never actually finish. We actually got those conditions in place so that we could start getting that money out. We actually approved $280 million to add to that, so we got $700 million of available finance. We actually changed the conditions of the farm household allowance so that we could have a higher net asset test so more people could actually get access to the money. We are happy with the fact that over 4,000 applications have been through and that you actually get the money until the department decides that you are not allowed to get the money. So you keep on getting the money until such time as, on the application being assessed, they decide you are not eligible for it. But it is not the case that you apply for the money and then you have to wait for your application to be approved. You actually get the money straight away. So this is part of a process that is helping us look after the farmers that you left behind.

AFTER - ALTERED TEXT 

Mr. JOYCE (New England—Minister for Agriculture and Deputy Leader of The Nationals) (14:32):

I thank the member for Hunter for his question. He would be happy to know that nearly 4,000 applications have been approved for the farm household allowance. This is a substantial amount of money. This means that they are receiving between $900 and $1,000 a fortnight. We have actually changed conditions so that we can bring dignity back into these people's lives. We have actually made it happen. You would be happy to know, Madam Speaker, that we approved $280 million in our drought package and concessional rates of four per cent. We have put money on the table—over $22 million for other water infrastructure. These are the sorts of real outcomes that we are providing….

Mr. JOYCE:  I am happy to announce that when we arrived in government they had not signed up all of the states and territories, so we actually got the conditions in place for the concessional farm finance package, which they might have started but could never actually finish. We actually got those conditions in place so that we could start getting that money out. We actually approved $280 million to add to that, so we got $700 million of available finance. We actually changed the conditions of the farm household allowance so that we could have a higher net asset test so more people could actually get access to the money. We are happy with the fact that nearly 4,000 applications have been through and if you were also a recipient of the Interim Farm Household Allowance you actually get the money until the department decides that you are not allowed to get the money. So you keep on getting the money until such time as, on the application being assessed, they decide you are not eligible for it. But it is not the case that you apply for the money and then you have to wait for your application to be approved unless it is a new application. You actually get the money straight away. So this is part of a process that is helping us look after the farmers that you left behind.

House of Representatives Hansard for 22 October 2014 in which Barnaby Joyce gave an additional answer to the original 20 October question:

Mr JOYCE (New England—Minister for Agriculture and Deputy Leader of The Nationals) (18:39): On indulgence—I have the following additional information for the House: 4,957 applications have been received for farm household allowance, with 4,551 fully processed; 4,098 applications have been approved for farm household allowance to date, with 4,011 recipients currently receiving payment. According to estimates—which is the best we can do—3,500 recipients have transitioned from interim farm household allowance payments. Payments to farmers who had been in receipt of interim farm household allowance and had applied for farm household allowance continued without interruption until their applications had been assessed by Centrelink. Further specific inquiries on this should be directed to the department that actually administers this, which is the Department of Human Services.

House of Representatives Hansard for 27 October 2014 in which he sidesteps the issue and muddies the waters by limiting his answer to figures in his later statement to the House on 22 October:

Mr FITZGIBBON (Hunter) (14:49): My question is to the Minister for Agriculture. I refer him to the drought related answer he gave on Monday and corrected in the House late on Wednesday. I also refer him to Hansard, in which the final paragraph of his answer carries the qualifying statements: 'if you were also a recipient of the Interim Farm Household Allowance' and 'unless it was a new application'. Does the minister acknowledge he never used these words, and what role did he or his office play in doctoring the Hansard record?

The SPEAKER: I will ask the member to rephrase that question, because at the moment it is a serious allegation and other forms of the House are used for that purpose. He may rephrase his question, otherwise he can use other forms of the House.

Mr FITZGIBBON: Can the minister explain the inconsistencies between what he said in the House and the Hansard record?

Mr JOYCE (New England—Minister for Agriculture and Deputy Leader of The Nationals) (14:49): I thank the honourable member for his question and reiterate the answer that was given. At present 4,957 applications have been made; 4,098 have been granted. Four hundred and fifty-three have been rejected and 411 customers are receiving payment. This is exactly the same as what I said when I came into the chamber and proceeded to give exactly the numbers that were given to us at 3.30 pm that day.

House of Representatives Hansard for 27 October 2014 in which a little over one hour later Barnaby Joyce seeks to blame his staff:

Mr JOYCE (New England—Minister for Agriculture and Deputy Leader of The Nationals) (15:56): Mr Deputy Speaker, I wish to make a personal explanation.

The DEPUTY SPEAKER ( Hon. BC Scott ): Does the honourable member claim to have been misrepresented?

Mr JOYCE: Yes.

The DEPUTY SPEAKER: Please proceed.

Mr JOYCE: I answered a question on Monday, 20 October 2014 from the member for Hunter in relation to drought assistance. Further to my answer to the House on Monday, 20 October 2014, I provided additional information to the House on Wednesday, 22 October 2014.

On 20 October 2014 I understand a request for minor edits was made to Hansard by my staff without my knowledge. My staff have been counselled. Consistent with standing orders, I have asked that the changes requested by my office be removed from the Hansard before the Hansard is finalised.

House of Representatives Hansard for 28 October 2014 in which Liberal MP for Mackellar and The Speaker Bronwyn Bishop refuses to review the record:

The SPEAKER (15:18): Yesterday, the Manager of Opposition Business raised with me, as a potential matter of privilege, whether the Hansard record of an answer provided by the Minister for Agriculture, last week on 20 October, had been changed in a way that amounted to 'misconduct'. The Manager of Opposition Business asked whether such changes might relate to 'deliberately misleading the House, conspiracy to deceive, falsifying documents or disobedience to the rule or orders of the House'. For this to be considered it is necessary for there to be evidence of a prime facie case that the alleged misconduct is conduct which, and I quote section 4 of the Parliamentary Privileges Act 1987, 'amounts, or is intended or likely to amount, to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member or the member's duties as a member'.

I note that the Minister for Agriculture attended in the House shortly after the matter was raised with me, and explained to the House the circumstances around the changes made to the Hansard record of his answer in the House, including that he had counselled his staff about their actions and requested the Hansard record to be corrected. Given the minister's explanation I have not reviewed the tapes. In light of the minister's explanation, it does not appear that a prime facie case as intimated above has been made out and I consider that the matter is now closed.

A few facts you may not know about coal seam/tight gas exploration company Metgasco Limited in 2014

Metgasco Limited’s profile in the financial year 2013-14:

* there were only 6,331 shareholders as at 30 June 2014
* had 1,202,222 ordinary shares on offer on 30 June 2014 according to the company's 2013-14 annual report;

* its largest shareholders were ERM Power (majority owned by the St Baker family) and the St Baker family of Queensland who held a total of 13.41% of the company’s fully paid ordinary shares;

* held a 100% interest in three exploration licences on the NSW North Coast covering approximately 4,556km², PELs 13, 16 and 426;

* had three listed subsidiaries, Clarence Morton (No.1) Pty Ltd, Richmond Valley Power Pty Ltd and Loins Way Pipeline Pty Ltd;

* although operating at a loss it paid 5 directors and 1 executive officer over $1.3 million in remuneration;

* paid no tax or royalties;

* had less than 10 employees in total according to statements made to the media in March 2013;

* had no female directors or women in senior executive positions;

* for the convenience of its board and employees maintains one city and one regional office, with the city head office costing somewhere in the vicinity of $112,000 per annum in rental costs;

* a shareholder group tried to unseat the board of directors in September 2013;

* the ordinary share price continues the downward trend which began in 2008;

* appears to have sunk no new wells from 1 July 2013 to date and, according to NSW Resources & Energy mapping has drilled less than 40 gas exploration wells since the company was formed in 1999;
* had no beneficial interest in any farm-in or farm-out agreements;

* in July 2013 there was an explosion during the decommissioning of PEL 16 well Kingfisher E01;

* permission to drill well site Rosella E01 on PEL 16 was suspended by the NSW Government in May 2014;

* had  PPLA 9 and PELA 130 in the Casino district still unapproved as at 30 June 2014; and

* the PEL 426 exploration licence due for renewal in February 2014 has not received renewal approval to date, according to NSW Resources & Energy list of .Petroleum Titles and Applications current as at 1 July 2014.

NOTE: From 29 October 2014 every New South Wales tenement that the company currently holds is covered by the NSW Labor Party policy banning coal seam/tight/unconventional gas exploration and production in the Northern Rivers region.
No judgment has been handed down yet in Metgasco Limited v Minister for Resources and Energy (Case # 201400165970) before the NSW Supreme. 

Tony Abbott's strange view of Australian history strikes again

The Abbott Government is now turning its ideologically blinkered eye towards ‘reforming’ the federation of states which underpins the Commonwealth of Australia.

Then we had no national government. Then, as we’ve been reminded earlier this evening, we had six colonies, each of them with a prime minister.....

A hundred years ago the states were clearly responsible for funding and operating public schools, public hospitals, public transport, roads, police, housing and planning. Under our constitution, the states are still legally responsible for them...

[Prime Minister Tony Abbott, Sir Henry Parkes Commemorative Dinner speech, 25 October 2014]

Oh dear, Australia had six prime ministers prior to Federation? Under the Australian Constitution the states are clearly responsible for funding public hospitals?

No, Mr. Abbott. The six colonies had six premiers, which headed governments with more limited power than a post-1901 federal government headed by a prime minister, because they were legally obliged to take direction from the British government of the day and a federal government is not so obliged.

As for who is responsible for providing public hospital services, the constitution clearly states that Commonwealth has the power to make laws for the provision of pharmaceutical, 

sickness and hospital benefits, medical and dental services and it was under Part V – Powers of the Parliament that the federal parliament created universal health care including inpatient/outpatient free care in public hospitals. So the federal government has accepted that it is responsible in large measure for funding public hospitals and clearly in broad control of health service delivery.

Thankfully it will take a majority of people in a majority of states and a majority of people across the nation as a whole vote 'yes' to whatever question our historically illiterate prime minister decides to put to the electorate in any national referendum seeking to dismantle the federation model in the Australian Constitution.

With his tin ear, I cannot see him convincing the average voter that 'reforming' the constitution to further cost-shift towards the states is a good idea.

The Northern Rivers marched in step to demonstrate its resolve to keep gas fields out of the region

Some of the images on mainstream & social media with reporting on the day as the Northern Rivers marched to show its resolve........

NBN News  1 November 2014:

In an unprecedented show of solidarity, around 10,000 people took to the streets of Lismore today – to declare the region gasfield free.

It’s the biggest social movement of its kind in the region, which is calling on the government to ban unconventional gas mining.

ABC News 1 November 2014:

More than 5,000 protesters turned out on the NSW north coast to show their anger at plans to try to restart a coal seam gas (CSG) project in the area.

The anti-CSG rally took place in Lismore's CBD and was staged in response to a court case in progress which is dealing with the suspension of a CSG licence in the area.

The NSW Government suspended the licence six months ago and the issue is now before the courts waiting on a decision about the validity of the suspension.

Residents in northern NSW have continued to show their strong opposition to CSG has not changed, with march organisers saying the big turnout was a message to gas companies and the government.

Rock Valley farmer Bevan Jolley said he has become disillusioned with the National Party, which he once identified with.

"I've voted National Party ever since I got to vote and I am 70 years of age now but I am very disgruntled with the way local pollies are treating us," Mr Bevan said.

"They get our vote and then when something big like this [CSG] comes up they seem to not want anything to do with it. When they go back to Parliament they don't bring it up."

Mr Jolley said it is not in his nature to protest but he feels he has to because he is concerned about the effect of CSG on ground water on and near his property where he runs beef cattle and grows macadamias.

"Everyone doesn't want to have to protest to try to stop something ... we vote in politicians to do the job for us but these fellas aren't doing it," he said.

"If you bugger up that underground water, that's it, you can't fix it."….

Northern Rivers Guardians 1 November 2014:

What a great day! The march in Lismore today was a happy, huge success and NRG was well represented. Thanks to all who took part in the LTG Alliance regional march and rally to declare the Northern Rivers Gasfield Free.
We are tired of waiting for the politicians to truly represent the more than 90% of NR residents who have declared their roads and villages to be Gasfield Free . So we declared it ourselves. Well done everyone ! The people have spoken.
Estimates of crowd numbers vary from 5,000 to 10,000. I tend to support the higher figure as there was obviously more people marching than when we did it 2 years ago and that was said to have been 7,000. We also had the rare experience of the head of the march meeting the tail as we circled back on the route around the CBD: this didn’t occur in 2012 over the same route…..

Significantly, shopkeepers and onlookers gave visible support to the cause, especially when we chanted ”Thomas George has got to go”. Seems the Lismore electorate is looking shaky for the Coalition…..

MEDIA RELEASE: 1^ST November*

MASSIVE TURN OUT FOR GASFIELD FREE RALLY IN LISMORE TODAY

Organisers of today’s Gasfield Free event in the Northern Rivers have described the day as a huge success. An estimated 8,000 people from across the Northern Rivers region turned up in Lismore today for the declaration, march and rally.

“The determination and commitment of the community of the Northern Rivers to remain Gasfield Free is undeniable,” said Gasfield Free coordinator and rally organiser Elly Bird.

“This community is saying loud and clear that they want full cancellation of the licenses across the region, and nothing less will serve.”

“Today’s event makes it very clear that opposition to invasive gasfields in the region is not going away.”

“The NSW government needs to take decisive action and join Labor and the Greens in making a commitment to permanently protect our region,”  she said.

Video footage of today’s event is available at this link: https://vimeo.com/110635419

* Courtesy of Lock the Gate Northern Rivers Regional Alliance and Yuraygir Coast and Range Alliance

 

After spending tens of millions of taxpayers' dollars, Tony Abbott fails to land a killer blow on Julia Gillard

Tony Abbott became one of the true believers, convinced Gillard was corrupt or at least guilty of “something”. Abbott would tell colleagues he wouldn’t be surprised if Gillard “ended up in jail”. To place added pressure on the former PM, Abbott announced the Coalition, in government, would hold a judicial inquiry into the affair, adding other dodgy union deals such as the stinking mess of the Health Services Union. [The Courier Mail 13 September 2014]

Mr Abbott said Ms Gillard had been a "dodgy and unethical lawyer". The criticism was not about gender; she had "failed the character test". [Herald Sun 30 November 2012]

Having reportedly spent in excess of $24 million to date on his Royal Commission Into Union Governance and Corruption, Australian Prime Minister Tony Abbott has failed to get the scalp he most prized – that of his predecessor former Labor prime minister Julia Gillard.

Counsel Assisting Submissions, 31 October 2014

http://www.tradeunionroyalcommission.gov.au/Submissions/Documents/SubmissionPart1-1.pdf

Royal Commission final report on the hell that was the Anglican North Coast Children's Home between 1940 and 1985 and continuing abuse of known adult victims who later sought assistance from the Grafton Diocese

Excerpts from the Royal Commission into Institutional Responses to Child Sexual Abuse: Report of Case Study No. 3 Anglican Diocese of Grafton's response to child sexual abuse at the North Coast Children's Home, 27 October 2014:

The North Coast Children's Home was set up in Lismore in 1919 to house children who were orphans or wards of the state, or had been abandoned or placed there by their parents. 

We heard evidence of frequent sexual, psychological and physical abuse at the Home between 1940 to 1985.

Former residents, Tommy Campion, CA, CB, CD, CH, CK, CN and two others, told us they were sexually abused by clergy, staff or other residents while living at the Home.

Finding 1: The physical, psychological and sexual abuse suffered by the former residents of the North Coast Children's Home who gave evidence to the Royal Commission had profound, long-lasting impacts on their lives and mental health….

Finding 2: At all relevant times, the North Coast Children's Home was:

* strongly associated with the Anglican Church and its predecessor, the Church of England

* controlled by the Board of Management, including the Rector of St Andrew's Church

Lismore in the Diocese of Grafton….

Finding 3: The Diocese of Grafton initially dealt with Tommy Campion's complaint by

providing a copy of the Pastoral Care and Assistance Scheme adopted by the Diocese in

2005. When faced with the group claim, the Diocese changed its response to Tommy

Campion's claim by stating that the Diocese and its Corporate Trustees had no legal

liability for sexual or physical abuse of a child by clergy, staff or other people associated

with the North Coast Children's Home…..

Finding 4: The Diocese of Grafton required group claimants to sign a deed of release

before counselling, acknowledgement, apology or financial settlement would be

provided, except for Tommy Campion, who was already receiving some counselling. This

was inconsistent with the Sydney Pastoral Care and Assistance Scheme that the Diocese of Grafton adopted in 2005….

Finding 5: By 10 October 2006, the Diocese of Grafton was not following its own policies

in its handling of the group claim as set out in the:

* Professional Standards Ordinance and Protocol for Dealing with Complaints of

Sexual Abuse, both adopted in 2004

* Pastoral Care and Assistance Scheme, adopted in 2005.

Finding 6: Bishop Keith Slater, then Bishop of Grafton, and the Diocese of Grafton should have managed the process under the 2004 Protocol for Dealing with Complaints of

Sexual Abuse when the group claim was being handled between the Diocesan and

claimants' solicitors.

Finding 7: The settlement negotiations on 19 and 20 December 2006 were conducted in

a hostile manner, contrary to the spirit of the 2005 Pastoral Care and Assistance Scheme

and the 2004 Protocol for Dealing with Complaints of Sexual Abuse….

Finding 8: The amounts offered to Tommy Campion, CA, CK, CL, CM and CN under the

group claim were substantially lower than if the claim had been resolved under the 2005

Pastoral Care and Assistance Scheme that the Diocese of Grafton had adopted. The

Diocese misled Tommy Campion and CA that the scheme would be followed.

Finding 9: In handling the group claim, the Diocese of Grafton did not apply the 2004

Professional Standards Ordinance and Protocol for Dealing with Complaints of Sexual

Abuse. As a consequence, it did not provide a sympathetic and proportionate pastoral

response to the group claimants.

Finding 10: By denying legal liability, on the basis that it did not control the North Coast

Children's Home, and not providing a pastoral response, the Diocese of Grafton's

response had a detrimental effect on abused former residents….

Finding 11: Bishop Keith Slater did not follow the Pastoral Care and Assistance Scheme in responding to Tommy Campion….

Finding 12: In 2012, when considering the request from Tommy Campion for information, Bishop Keith Slater acted to protect the interests of the former members of the Home's committee, including an elderly former member….

Finding 13: The Diocese of Grafton received further individual claims from former

residents of the North Coast Children's Home, but it did not deal with them in accordance with the Pastoral Care and Assistance Scheme or the settlement of the group claim….

Finding 14: Bishop Keith Slater did not refer either CB's or CC's claims to the Professional Standards Committee, which was contrary to clause 24(1) of the Professional Standards Ordinance 2004.

Finding 15: Between 2006 and 2012, the Primate advised Bishop Keith Slater that:

*  the group claimants should have their complaints properly heard and be offered

counselling and pastoral support

* he should seek out further people who had been abused at the North Coast

Children's Home

* he should inform the police of all criminal allegations which came to his attention

arising out of the North Coast Children's Home.

The bishop did not follow the Primate's advice….

Finding 16: Despite its knowledge of potential claims by 2005, the Diocese of Grafton did not make provision for settling child sexual abuse claims in its annual budgets for 2006, and 2008 to 2012.

Finding 17: Acknowledging that some assets might not be readily available, the Diocese

of Grafton had enough assets either in its name, or in the Corporate Trustees of the

Diocese of Grafton's name, to allow it to settle the claims of child sexual abuse made

between 2005 and 2011 consistent with the Pastoral Care and Assistance Scheme it

adopted in 2005.

Finding 18: The Diocese of Grafton did not make any financial provision for professional

standards matters. It prioritised the Clarence Valley Anglican School debt over its

financial obligations under the Protocol for Dealing with Complaints of Sexual Abuse and

the Pastoral Care and Assistance Scheme to pay abused former residents of the North

Coast Children's Home between 2007 and 2012….

Finding 19: The dioceses of Grafton and Newcastle could both have taken action in

response to the professional standards matters concerning Reverend Allan Kitchingman,

including his discipline. There was no clear system in place to determine which diocese

would assume responsibility.

Finding 20: From 2003 to 2013, Bishop Keith Slater was aware that Reverend Allan

Kitchingman had been convicted of sexual offences against a child, and had authority to

discipline him. Bishop Slater did not start disciplinary proceedings against the reverend.

Finding 21: From 2004, Reverend Patrick Comben was aware that Reverend Allan

Kitchingman had been convicted of sexual offences against a child but did not start

disciplinary proceedings against him.

Finding 22: In 2002, Archbishop Roger Herft, then Bishop of Newcastle, became aware

that Reverend Allan Kitchingman had been convicted of five counts of indecent assault

of a child at an Anglican home in the Diocese of Grafton. Between August 2002 and

February 2004, he did not start disciplinary proceedings against the reverend.

Finding 23: From 2006 to 2007, Philip Gerber, as Professional Standards Director of

Grafton and Newcastle, was aware that Reverend Allan Kitchingman had been convicted

of sexual offences against a child but did not start disciplinary proceedings against him.

Finding 24: The General Synod recommended guidelines for parish safety in 2009. The

Diocese of Newcastle did not adopt guidelines for managing people of concern until

around October 2013. As a result, there were no guidelines to manage any risk posed by

Reverend Allan Kitchingman's involvement in Newcastle Cathedral until October 2013.

Finding 25: From September 2005 until April 2013, no disciplinary action was taken

against Reverend Campbell Brown by the Diocese of Grafton or the Diocese of

Newcastle. During the same period, the Diocese of Grafton took no disciplinary action

against Reverend Winston Morgan.

Finding 26: From 2011 to 2013, Bishop Keith Slater did not refer allegations of criminal

conduct made by CB and CC to NSW Police. This was inconsistent with the 2004

Professional Standards Ordinance and Protocol for Dealing with Complaints of Sexual

Abuse….

Finding 27: The establishment of the National Register of the Anglican Church is a

positive initiative.

Finding 28: At the time of the hearing, the National Register of the Anglican Church did

not record the names of all people who might need to be registered because various

dioceses have been unable to review all their files to determine whether an entry should

be made….

In 2006, over 40 former residents began a group claim against the Diocese of Grafton. They claimed to have suffered physical, psychological and sexual abuse at the Home between 1940 and 1985. Twenty of those claims involved child sexual abuse by clergy, staff, foster parents and others.

On 5 January 2006, Simon Harrison, from the law firm Nicol Robinson Halletts, wrote to Reverend Comben about the claim. Mr Harrison advised that he had instructions to represent 20 former residents who had been abused.

He asked for help identifying some former staff and for some documents related to the Home. Reverend Comben opposed giving this information. He said that he did not want to give the claimants' solicitors 'honorary research assistance'.

On 16 January 2006, Reverend Comben wrote to Peter Roland, from the law firm Foott Law & Co, with instructions to act in the matter for the Church. He asked Mr Roland about raising 'legal cases which deny the liability of an employer for the criminal acts of employees'.

Reverend Comben said that he thought Bishop-in-Council was influenced by a potential claim for $4 million that had been mentioned in the media. He said that

Bishop-in-Council's position was: 'defend it'.

Reverend Comben said he felt 'disappointed' that the matter was proceeding through lawyers. He asked Mr Roland to seek further details so they could give 'a Christian response' along with the legal response.

Mr Roland replied to Mr Harrison seeking more details about the assaults and perpetrators, and said that the Diocese was not a legal entity. He asked which people they proposed to hold liable for the assaults, and on what basis 'given the time which has elapsed'….

It was not until 2013 that the Anglican Church significantly revised its response to former residents of the Home. In May 2013, Ms Hywood, the new acting Registrar, reported to the Primate her concerns about the Diocese of Grafton's handling of claims over the previous six years. She noted that professional standards files were not properly kept or processed, and matters had not been referred to the Professional Standards Director.

Bishop Slater resigned as Bishop of Grafton on 17 May 2013. He issued a media statement apologising for not giving abuse claimants access to the Professional Standards Director.

In September 2013, the Diocese published an apology in several newspapers for the abuse at the Home and its handling of subsequent claims.

In October that year, Bishop-in-Council passed a revised Care and Assistance Scheme. This scheme is not as detailed as the Sydney Care and Assistance Scheme. The Diocese reviewed all claims that had not been investigated under the 2004 Protocol and has offered revised settlements.

Read the full report of Case Study no. 3.