Abuse by senior church leaders

Over the last two decades there have been allegations, and in some cases findings, of abuse of children or women made against senior church leaders in different denominations. The most famous has been the conviction of Australian Cardinal George Pell for child sexual abuse while a priest in the Diocese of Ballarat, which was subsequently quashed in April 2020.Footnote ²

In the Anglican Communion an early example was in July 2004, when Bishop Donald Shearman, the former Bishop of Grafton of the Anglican Church of Australia, was deposed from holy orders for child sexual abuse.Footnote ³ Recently, in January 2019, Bishop Monument Makhanya, the Bishop of Zululand of the Anglican Church of Southern Africa, resigned after allegations were made against him of sexually assaulting a young male priest of his diocese.Footnote ⁴ Even more recently, in April 2022, Archbishop Mark MacDonald resigned as National Indigenous Anglican Archbishop of the Anglican Church of Canada and formally relinquished the exercise of the ordained ministry after allegations of sexual misconduct were made against him.Footnote ⁵ Currently, Bishop Joel Waweru, the Bishop of Nairobi of the Anglican Church of Kenya, and a member of the Standing Committee of the Anglican Consultative Council and the Design Group for the Lambeth Conference 2022, has been charged with two offences of sexual harassment and an indecent act involving a female priest.Footnote ⁶

Concealment of abuse by senior church leaders

In recent years, unsuccessful action has been taken in the courts against senior church leaders who have failed to act when they have received allegations of child abuse. The most famous is the dismissal of an appeal in April 2021 against the quashing of the conviction of the French Cardinal Philippe Barbarin, the former Archbishop of Lyon, of charges that he covered up the sexual abuse of children by another priest.Footnote ⁷ Earlier, in December 2018, the conviction of Archbishop Philip Wilson, the Catholic Archbishop of Adelaide in Australia, for failing to report child sexual abuse between 2004 and 2006 under section 316 of the Crimes Act 1900 (NSW) was quashed on appeal.Footnote ⁸

In October 2020 the Independent Inquiry into Child Sexual Abuse (IICSA) released its Investigation Report into the Anglican Church in England and Wales. The inquiry examined a number of cases relating to both convicted perpetrators and alleged perpetrators, many of which demonstrated the Church of England's failure to take seriously disclosures by or about children or to refer allegations to the statutory authorities. One perpetrator was Bishop Victor Whitsey, who was the Bishop of Chester between 1974 and 1982 and who died in 1987. Bishop Peter Forster, who was then the Bishop of Chester, had received a complaint of abuse against Bishop Whitsey in 2002, but was said in the report to have failed to act in accordance with the Church's safeguarding policies.Footnote ⁹

In the Anglican Communion there have been three cases of internal action in the Anglican Church of Australia taken against a senior church leader for failure to act in response to allegations of abuse. The first case involved Bishop Ross Davies, Bishop of The Murray. In September 2010, the Special Tribunal found Bishop Davies guilty of six counts of disgraceful conduct, including the count of inappropriately using his powers as bishop to subvert the proper professional standards processes within the diocese in relation to complaints of abuse against Archdeacon Peter Coote in order to protect Archdeacon Coote from the full rigour of those procedures.Footnote ¹⁰ In November 2010, the Primate, Archbishop Phillip Aspinall, pronounced the sentence against Bishop Davies, which included a prohibition from functioning in the office of a bishop.Footnote ¹¹

The second case involved Bishop Keith Slater, the former Bishop of Grafton. It arose out of the public hearing in Case Study no 3 of the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission), which examined the response of the Anglican Diocese of Grafton to child sexual abuse at the North Coast Children's Home and the Royal Commission's Report on Case Study no 3, which was published in November 2013.Footnote ¹² The Royal Commission exposed significant failures by the Diocese of Grafton in its response to child sexual abuse at the North Coast Children's Home. The failure of the diocese to follow its own procedures led to the manifest injustice of survivors of abuse at the home being treated less favourably than other survivors of abuse. Subsequent to the report, the diocese took disciplinary action against Bishop Slate and in October 2015 he was deposed from holy orders.Footnote ¹³ In January 2017, the Appellate Tribunal, which is the tribunal established under the Constitution for hearing appeals, determined that the diocese did not have jurisdiction over Bishop Slater and accordingly his deposition was null and void.Footnote ¹⁴

The third case concerned Bishop Herft. This case involved conduct which contravened section 316 of the Crimes Act and arose out of the public hearing in Case Study no 42 of the Royal Commission, which examined the responses of the Anglican Diocese of Newcastle to instances and allegations of child sexual abuse, and the Royal Commission's report on that case study which was first published in a redacted form in November 2017 and subsequently in an unredacted form in October 2020 (Case Study no 42 Report).Footnote ¹⁵ In this case study the examination of the Royal Commission included the response of Bishop Herft to allegations of child sex abuse against Dean Lawrence (who will be referred to as Dean Lawrence, notwithstanding that he retired in 2008), Father Peter Rushton, the Archdeacon of Maitland and the Reverend George Parker, a priest in the diocese, and persons recorded in the yellow envelope system.

Prior to the Case Study no 42 Report professional standards proceedings had been taken against Dean Lawrence. In October 2009, a person referred to as M made a formal written complaint against various persons including Dean Lawrence. The complaint included allegations that a group sex event participated in by Dean Lawrence occurred in the early 1980s at a clergy conference of the Diocese of Riverina. In December 2010, the Professional Standards Board of the Diocese of Newcastle conducted a hearing at which Dean Lawrence and another priest did not appear, and made determinations and recommendations in respect of both priests, which were then transmitted to Bishop Farran, the Bishop of Newcastle, for his consideration. In April 2012, the Supreme Court of New South Wales rejected a challenge to these determinations and recommendations made by both priests.Footnote ¹⁶ In September 2012 Dean Lawrence was ‘defrocked’.Footnote ¹⁷

Subsequent to the Case Study no 42 Report, criminal proceedings were commenced against Dean Lawrence. In July 2019 he was convicted of an act of indecency on the complainant, and sexual intercourse with the complainant without his consent and knowing that he was not consenting, which in both cases was in circumstances of aggravation because the complainant was aged 15 years.Footnote ¹⁸ In October 2019 Dean Lawrence was sentenced to an aggregate term of imprisonment for eight years with a non-parole period of four years and six months.Footnote ¹⁹

Section 316 of the Crimes Act

Until November 1990 a common law offence existed in New South Wales known as ‘misprision of a felony’. This offence consisted of knowing that a felony had been committed and failing to disclose that knowledge to the authorities within a reasonable time, having had a reasonable opportunity to do so. In November 1990 this common law offence was abolished and replaced with a statutory offence under section 316 of the Crimes Act.

Under section 316 of the Crimes Act, it is an offence for any person who ‘knows or believes’ that a ‘serious indictable offence’ has been committed, and has information which might be of material assistance in apprehending or prosecuting the offender, to fail to bring that information to the attention of the police or appropriate authority. A ‘serious indictable offence’ is an indictable offence that is punishable by imprisonment for life or for five or more years.

Belief was not an element of a misprision offence. It follows that the introduction of a category of ‘belief’ in section 316 broadened the circumstances in which a concealment offence could be committed. For the purposes of section 316, ‘belief’ is ‘a state of mind which can be reached as the result of a mix of knowledge [that the accused] has come to possess, as well as suspicions and opinions which he or she has come to hold and conclusions which he or she has reached’.

Since 2000, where the knowledge or belief has been formed by a member of the clergy ‘in the course of practising [his or her] calling’, an offence under section 316 cannot be prosecuted without the consent of the Attorney General. This requirement focuses consideration of whether the knowledge or belief came about in the member of the clergy's ‘course of practising’ or otherwise.Footnote ²⁰

The Royal Commission

The Royal Commission was established in January 2013 inquire into institutional responses to allegations and incidents of child sexual abuse and related matters, and in particular the following matters:

1. a. what institutions and governments should do to better protect children against child sexual abuse and related matters in institutional contexts in the future;

2. b. what institutions and governments should do to achieve best practice in encouraging the reporting of, and responding to reports or information about, allegations, incidents or risks of child sexual abuse and related matters in institutional contexts;

3. c. what should be done to eliminate or reduce impediments that currently exist for responding appropriately to child sexual abuse and related matters in institutional contexts, including addressing failures in, and impediments to, reporting, investigating and responding to allegations and incidents of abuse;

4. d. what institutions and governments should do to address, or alleviate the impact of, past and future child sexual abuse and related matters in institutional contexts, including, in particular, in ensuring justice for victims through the provision of redress by institutions, processes for referral for investigation and prosecution and support services.Footnote ²¹

The knowledge of Bishop Herft of the obligation to report child abuse to the police

Bishop Herft accepted that by 1999 he was aware of the legal obligation under section 316 of the Crimes Act.Footnote ²² From 1993 he understood ‘that any matters of child abuse should be reported to the police’. However, he understood his obligation to report child sexual abuse allegations as arising only when he had received a ‘complaint of some substance’. He said that during his time as the Bishop of Newcastle he did not consider he owed an obligation to report allegations of child sexual abuse to the police unless he knew the name of the complainant. He also gave evidence that, before 2002, if someone made an allegation of child sexual abuse and would not put the allegation in writing, the diocese would take no further action.Footnote ²³

The allegations against Dean Lawrence

In around 1994 or 1995 Mr Robert Wall and his wife, who were leaders of a diocesan youth camp, had a meeting with Bishop Herft in which they informed him that two boys had told them on separate occasions about a month apart that they had been sexually abused by Dean Lawrence, but did not want the Walls to tell anyone else. When the Walls said they would not disclose those names to him, Bishop Herft responded that, if they did not disclose the names and continued to complain about Dean Lawrence, they would face legal action for defamation of character. Bishop Herft said he had no recollection of receiving allegations from the Walls or of meeting with them. He also said he had no recollection of meeting with Dean Lawrence to discuss the Walls' allegations.Footnote ²⁴

In around 1996 Bishop Harry Goodhew, then the Archbishop of Sydney, raised with Bishop Herft allegations of child sexual abuse against Dean Lawrence. Bishop Herft said he had no recollection of speaking with then Archbishop Goodhew about these allegations. He maintained that he had no recollection of having spoken with Dean Lawrence about these allegations.Footnote ²⁵ In 1999 Bishop Bruce Clark, the Bishop of Riverina, telephoned Bishop Herft regarding allegations he had received that Dean Lawrence was a ‘sexual abuser’. Bishop Herft undertook to follow up these allegations. Bishop Herft accepted that he must have spoken with Archbishop Goodhew, Bishop Clark and Dean Lawrence about these allegations, but maintained that he had no recollection of any of these conversations.Footnote ²⁶

The Royal Commission was satisfied that Bishop Herft was made aware on these three separate occasions of allegations that Dean Lawrence had sexually abused children. They rejected Bishop Herft's evidence that he had no recollection of these matters. They were satisfied that Bishop Herft's response to the disclosures was unsatisfactory. Although he spoke with Dean Lawrence, he did not take any further action in relation to the allegations, even though they were made on multiple occasions by different people. He did not report them to the police. He did not cause any kind of investigation to be conducted and he did not implement any kind of risk management strategy with respect to Dean Lawrence.Footnote ²⁷

The allegations against Father Rushton

In November 1998 Archdeacon Ford, who was the Archdeacon of the Upper Hunter in the Diocese of Newcastle from 1992 to 1999, informed Bishop Herft that removalists had discovered child pornography among Father Rushton's possessions. Bishop Herft requested a retired bishop and then a retired solicitor to inspect the videos but Father Rushton refused to co-operate. The Royal Commission found that the investigation that Bishop Herft initiated was inadequate since it was reliant on Father Rushton telling the truth and co-operating fully. The police were far better equipped to investigate the matter than the diocese.Footnote ²⁸

In October 2002 Reverend Graham Jackson informed Bishop Herft at a meeting that the son of an acquaintance had been abused by Father Rushton as a child in the 1980s. Bishop Herft told the Royal Commission he had no further records regarding any outcome from this complaint.Footnote ²⁹ In February 2003 Bishop Herft was informed that an allegation had been received that Father Rushton had abused the son of a priest and another boy in or about 1979. In the same month a different allegation, that Father Rushton had ‘his own group of boys’, was made known to Bishop Herft.Footnote ³⁰

The Royal Commission was satisfied that, by the end of February 2003, Bishop Herft could have been in no doubt that Father Rushton had a history of behaviour that required further investigation. They rejected his submission that this was a matter of hindsight. His inaction with respect to Father Rushton contributed to the systematic failure of the diocese to make perpetrators accountable for their conduct. He showed no regard for risk management.Footnote ³¹

The allegations against Father Parker

In May 1996 Dean Lawrence sent Bishop Herft a letter in which he enclosed the file note of his conversation with a person referred to as CKA regarding his allegations that Father Parker had sexually abused two boys in 1970.Footnote ³² In January 1999 CKA again made allegations to Dean Lawrence that Father Parker had sexually abused him when he was 14 years old, and that Father Parker had sexually abused other boys as well. Dean Lawrence forwarded his file note to Bishop Herft a few days later, noting that he had verbally reported the allegations to Bishop Herft.Footnote ³³

Bishop Herft said that he did not report the allegations against Father Parker to the police following CKA's complaints in 1996 and 1999 because at that time he did not wish to abrogate an adult survivor's right to control their story. The Royal Commission found that, by not informing the police, Bishop Herft failed to act in accordance with the diocesan policy that allegations of child sexual abuse were to be reported to the police. Further, following the 1996 and 1999 disclosures by CKA, Bishop Herft did not inform the Diocese of Ballarat of the allegations against Father Parker, despite the fact that Father Parker was licensed as a priest in the Diocese of Ballarat in 1999 and may have had access to children.Footnote ³⁴

Allegations recorded in the yellow envelope system

Under the yellow envelope system, records of complaints before the Committee for Allegations of Sexual Misconduct (CASM) were placed in separate sealed yellow envelopes which were stored in a locked cabinet in the diocesan offices. Access to the records was restricted to the bishop, the commissary (who was Dean Lawrence), the bishop's representative and the chair of the CASM. Correspondence and/or notations within the yellow envelopes themselves indicated that Bishop Herft was put on notice of at least 24 matters relating to alleged child sexual abuse. Bishop Herft caused the police to be notified in 3 of those cases. Of the remaining 21 cases there was no evidence that the diocese notified the police.Footnote ³⁵

Episcopal Standards (Child Protection) Canon 2017

The Episcopal Standards (Child Protection) Canon 2017 (2017 Canon) provides that, where the Episcopal Standards Commission (ESC) considers that the subject matter of information constitutes examinable conduct, it shall investigate the information (section 9).Footnote ³⁶ The ESC may refer to the Board the fitness of the bishop, whether temporarily or permanently, to hold office or to remain in holy orders (section 16(b)). The function of the Board is to inquire into and determine a question referred to it pursuant to section 16, to make a determination referred to in section 49 and where appropriate to make a recommendation in accordance with the provisions of the 2017 Canon (section 19(1)). The Board may inform itself on any matter in such manner as it thinks fit (section 29(3)). If, after investigating the question referred to it about a bishop, the Board is satisfied that the bishop is unfit to remain in holy orders, the Board may determine accordingly and may determine the bishop be deposed from the exercise of holy orders (section 49(d), (m)).

In section 2(1)(b) ‘examinable conduct’ is defined to mean:

‘Information’ is defined as information of whatever nature and from whatever source relating to the alleged misconduct or omission of a bishop wherever or whenever occurring (section 2(1)(b)). ‘Child abuse’ is defined to include failure without reasonable excuse to report child abuse (para (a)(ix) of the definition in section 2(1)(b)).

The referral

The Board had received a reference from the ESC in relation to the conduct of the respondent, Bishop Herft, while he was Bishop of the Diocese of Newcastle, in the form of a report in March 2020 (First ESC Report) and a further report in May 2021 (Supplementary ESC Report). The First ESC Report followed an investigation undertaken by the ESC after referral from Bishop Peter Stuart, the Bishop of Newcastle, on 7 June 2018. The materials referred to the Board arose from the public hearings in Case Study no 42 of the Royal Commission. The Supplementary ESC Report concerned information that had become available when the unredacted version of the Case Study no 42 Report was released in October 2020.Footnote ³⁷

The evidence

The Board determined that it was permitted under section 29(3) of the 2017 Canon to inform itself from the Royal Commission material relied upon by the ESC in the First ESC Report and the Supplementary ESC Report.Footnote ³⁸ These two reports relied on the findings in the Case Study no 42 Report. The Board also had before it the submissions of counsel assisting and Bishop Herft before the Royal Commission.Footnote ³⁹

The questions

The Board noted that the reference posed two categories of questions: the 12 initial questions identified in the First ESC Report relating to the allegations against Father Rushton, Father Parker and the yellow envelope system; and the 6 further questions identified in the Supplementary ESC Report relating to the allegations against Dean Lawrence.Footnote ⁴⁰

The hearing

The hearing was conducted by the Board in September 2021. Bishop Herft did not participate in the proceedings of the Board. Previously, Bishop Herft had said he apprehended that he would not receive an impartial and fair hearing from the Board.Footnote ⁴¹

The consideration of fitness to hold office

The Board accepted that a bishop in holy orders is held to a high standard of behaviour, consistent with the high expectations of the Church implicit in the consecration of bishops.Footnote ⁴² The obligation of the Board was to consider present fitness to hold office, having regard to all relevant facts and circumstances.Footnote ⁴³

Critically in the present case, the examinable conduct was not of personal misconduct – Bishop Herft in no way personally participated in such behaviour – but rather the examinable conduct raised the extent to which he discharged his responsibility as bishop to respond to allegations that such conduct had occurred. Furthermore, the examinable conduct concerned someone who was no longer engaged in any professional capacity as a bishop.Footnote ⁴⁴ Consequently, on a practical level, many of the measures contemplated by section 49 of the 2017 Canon had no present application. The Board's view was that, where allegations of the kind against Bishop Herft were made out, a broad philosophical, moral and practical assessment was called for which must necessarily synthesise the following eight factors: the conduct; its gravity (including its consequences); its frequency; the means available to Bishop Herft to have prevented it or responded meaningfully to it; the extent to which Bishop Herft did so; any explanation for why Bishop Herft did not do so; whether it would be antithetical to the function, standards and beliefs of the Church for a person who behaved in that way to continue to hold an office that can only be held with the authority of the Church; and the extent to which it would be unreasonable to expect other persons holding like office within the Church to have to count among their number a person who had engaged in such conduct.Footnote ⁴⁵

The consideration of mitigating factors

In its consideration of the appropriate consequences flowing from its findings against Bishop Herft, the Board did not have evidence before it of mitigating factors, because he refused to participate in the Board's processes. Despite the absence of evidence going to mitigation, the Board accepted that it was likely that, during his time in the clergy, he made positive and valuable contributions to the life of the Church and to society generally. Nonetheless, there would be conduct that no amount of otherwise good conduct can mitigate. The Board concluded that this was such a case.Footnote ⁴⁶

Procedural fairness

The Board determined that it had adopted a process that it considered to have been fair (after unsuccessfully inviting Bishop Herft to participate, on numerous occasions). The Board also considered that it had made every reasonable allowance for the matters that he might have put at the hearing of the reference, but that he did not avail himself of the opportunity to do so.Footnote ⁴⁷

The factual findings

The Board was satisfied that the factual findings for which the ESC contended in relation to the allegations against Father Rushton, Father Parker and Dean Lawrence and the yellow envelope system were made out, and it found accordingly for four reasons. First, reliance on both the evidence from and the findings of the Royal Commission was reasonable and appropriate. It was a means of proof that sat comfortably within the Board's power in relation to factual findings. Second, the evidence from and findings of the Royal Commission were a reliable source of information. It was clear the Royal Commission's inquiry in that case study was directly relevant to the Board's current reference. Third, the Royal Commission was assisted by the resources of the State, the country-wide co-operation of the Anglican Church of Australia, skilled legal representation (including for investigation and for leading and testing evidence) and extensive powers of compulsion in relation to gathering documentary evidence and compelling oral evidence. Finally, Bishop Herft himself participated in that process and made submissions, in addition to the evidence that he gave on oath. The Board considered the findings of the Royal Commission to be an obvious source of reliable information and had satisfied itself as to the appropriateness of those findings.Footnote ⁴⁸

In disposing of the reference the Board was influenced by one general factor and three specific factors. On a general note, Bishop Herft's refusal to engage with the proceedings of the Board was relevant to weighing any factors that could be said to be in his favour. On a specific note, first, his failure to follow then-existing diocesan protocols in relation to the reporting of child sexual abuse was very serious. Second, a number of the complaints related to matters that, as the allegation was relayed to him, related to serious criminal conduct. His failure to report these complaints to the police was repeated, inexplicable and largely unexplained or inadequately explained. Third, a bishop in holy orders is held – and must be held – to a high standard of behaviour, consistent with the expectations of the Church implicit in a bishop's consecration.Footnote ⁴⁹

In summary, returning to the broad philosophical, moral and practical assessment it had identified, the Board found that the omissions of Bishop Herft were all too frequent and undoubtedly grave. The consequences of the allegations going unchecked over a period of years could be assumed to have been profound on those who were abused. There were relevant protocols to guide – indeed impel – Bishop Herft to act in material respects, and additionally he had the capacity to call on the organs of the Church for resources, advice and support. Moreover, there was always the straightforward medium of reporting allegations of serious criminal conduct to the police. Bishop Herft did not do so when the position of authority he held demanded that of him. The Board had looked for any acceptable explanation for why he did not do so and had not found any. In those circumstances it would be antithetical to the functions, standards and beliefs of the Church, and unreasonable to other clergy, especially bishops, for Bishop Herft to remain in holy orders.Footnote ⁵⁰

The Board answered Questions 1–18 posed by the ESC in identical terms to the findings made by the Royal Commission.Footnote ⁵¹ The Board was satisfied pursuant to section 49(d) of the 2017 Canon that Bishop Herft was unfit to remain in holy orders. Pursuant to section 49(m) of the same Canon it determined that he be deposed from the exercise of holy orders.Footnote ⁵²