ROYAL COMMISSION INTO INSTITUTIONAL
RESPONSES TO CHILD SEXUAL ABUSE
Public Hearing - Case Study 11
(Day WA19)
Level 18, Industrial Relations Commission
111 St Georges Terrace, Perth
On Tuesday, 6 May 2014 at 10am
Before The Chair:
Before Commissioners:
Justice Peter McClellan AM
Mr Robert Atkinson AO APM
Professor Helen Milroy
Counsel Assisting:
Ms Gail Furness SC
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<ANTHONY JOHN SHANAHAN, on former affirmation:
[10.02am]
<EXAMINATION BY MS FURNESS CONTINUING:
MS FURNESS:
Your Honour, when we adjourned yesterday,
I indicated that the document which has been tendered,
which is the chronology based on the archives of the
Christian Brothers, was to be taken away and some editorial
changes made. That has happened and the witness has the
current version, as does each of the members of the bench
and others at the Bar table. The document that was
tendered yesterday will be substituted for the document
which is now before everybody. It can be distinguished by
the footer "Final: 6 May 2014".
Q.
Brother Shanahan, you have the version with "6 May" at
the bottom in front of you?
A.
I do, yes.
Q.
Can I ask you to turn to page 9, and you will see the
page numbers are next to the date at the bottom right-hand
corner. We reached 1943 yesterday. I think the addition
was that there were 34 brothers who were mentioned to the
end of 1943. We will continue with 1944, and there is
reference to a Brother Foy, who was at Castledare?
A.
Yes.
Q.
The parents had complained that Brother Foy had
interfered with their son and he was transferred as
a result, and he was transferred to Leura. Can you tell
the Royal Commission what was at Leura in 1944?
A.
My understanding was that the Brothers had a residence
there, it wasn't attached to any school or institution, and
as the note here suggests, it seemed to be a retirement
home and, according to this, a residence for brothers under
investigation. So it was a way - it was a place where you
could send someone to ensure they had no contact with
children. I don't know - like we don't currently have that
place in Leura, and I don't think they have had it there
for quite some years, but we had it at this time, anyway,
in the 1940s.
Q.
Then also in 1944, a Brother Spillane was complained
against for the fondling of pupils. Then we move to 1945
and Brother McSweeney is the subject of complaint again,
having earlier been complained about in 1934. The
reference there to the Christian Brothers document is that:
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There was no doubt in our minds of his
guilt ... he has had two previous warnings.
Do you see that?
A.
Yes.
Q.
You might recall from yesterday that there was only
one entry in respect of Brother McSweeney in 1934, which,
I suggest, suggests that a previous warning had not been
the subject of communication so as to reach the
Christian Brothers archives; is that a fair suggestion?
A.
Or wasn't recorded, or the record was lost somehow,
but, yes, certainly there is nothing there about the second
warning.
Q.
So in relation to this brother, who was at Tamworth,
on the third occasion, there was interference with a boy.
His expulsion was recommended. So that tells us something
about the approach of the Order in 1945 in respect of such
matters.
A.
Yes.
Q.
You will see that also in relation to
Brother McSweeney there is a letter from Brother McCarthy
to the provincial. Can you help us who Brother McCarthy
might have been at that time?
A.
I think Brother McCarthy was an Irish brother who was
one of the assistants to the superior general based in
Ireland at this time.
Q.
A.
Sorry, based in?
Ireland.
Q.
Brother McCarthy is recorded as saying:
His is a really bad one ... he merits the
most severe penalty but as you say there
are circumstances which make one hesitate
before passing sentence. He must be put
out of danger of relapse and never in
contact with the young ... He must not be
idle and he must be made to feel that he
has to atone for his offences.
Do you see that "he must be put out of danger of relapse"?
A.
Yes.
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Q.
That suggests, doesn't it, that at this stage, 1945,
there was an understanding in the executive of the
Christian Brothers that, indeed, this, the sexual abuse of
children, was not necessarily a one-off matter; it was
a matter where there was concern that relapse may occur,
that is, there may be more than one offence?
A.
Yes, I think you are right.
Q.
In 1946 Brother Keenan, who has been the subject of
a complaint earlier in 1940 and 1941, was at Lewisham when
it was complained that he had interfered with a boy and it
was recommended that there be dispensation. Again, without
knowing the details of it, it is difficult to determine
whether the dispensation was what we would consider today
to be an appropriate outcome, isn't it?
A.
Yes.
Q.
Then we have Brother Smith, in 1946, who it was
complained took boys in his room and handled one boy's
private parts over his trousers. He was transferred to
Moonee Ponds and given a canonical warning. Can you help
us with what was at Moonee Ponds in 1946?
A.
It was a day school.
Q.
The suggestion of taking boys in his room suggests,
doesn't it, some residential or dormitory-type arrangement?
A.
Yes, you would assume that, but unfortunately, we
don't have the location as to where he was when the offence
was committed or the complaint made.
Q.
No. But it would be consistent with the evidence you
gave yesterday of your general understanding that if
a complaint was made against a brother who was in a
residential facility, it was not uncommon for him to be
removed and transferred to a day school.
A.
That's correct.
Q.
And that appears to be what happened in respect of
Brother Smith?
A.
Yes.
Q.
In 1946, Brother Beedon, who was at Clontarf, one of
the four institutions we are concerned with who, it was
complained, handled a boy's private parts and "fondling
boy's stomach, abdomen and legs", was transferred to
Wakefield Street, Adelaide. Now, brother, you told us
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about Wakefield Street, Adelaide. Can you remind us where
that was?
A.
It's in the centre of Adelaide, in the centre of the
CBD. It was the first school the Brothers established in
South Australia. It was a school which would have gone
from the primary or, perhaps not the whole primary, maybe
grade 4 or 5, up to matriculation.
Q.
A.
It was a day school?
It was a day school.
Q.
Consistent with the previous brother, in terms of
being transferred to a day school?
A.
Yes.
Q.
Also in 1946 there was a Brother Greenley in Brisbane
and it was complained that there was indecent behaviour by
him with boys and he received a canonical warning; do you
see that?
A.
Yes.
Q.
Also in June 1946, Brother Keenan was the subject of
an additional complaint, complaints having been made in
1940 and 1941, and the nature of the complaint is
"interfering with a boy", and the letter was written to the
superior general. Do you see the terms of that letter in
that column, brother?
A.
Yes.
Q.
It describes Brother Keenan as:
... in serious trouble again interfering
with a boy at Lewisham. In 1941 he was in
similar trouble and I think actually had
his dispensation but refused to accept
it ...
Now, just stopping there, does that suggest it was
recommended to him that he have a dispensation and he said,
"No, I'm not going to do it"; is that how you read that?
A.
I suspect that what happened was this: when the
dispensation was granted, the documentation came from - I'm
not sure in this case whether it would have come from Rome
or from Ireland, probably from Ireland - and the brother
leaving is supposed to sign the document to finalise the
process. Now, I think as one of the witnesses last week
Bert McGregor testified, some people have for various
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reasons refused to sign the final document, either because
they have, in a sense, changed their mind and don't want to
leave, or, I think in his case, people just walked out for
whatever reason.
Q.
It goes on to say that he - that is, Brother Keenan:
... says that when he was in trouble before
he made as strong a resolution as possible
to avoid trouble but still lapsed. He
thinks and I am inclined to agree that the
probability is against him.
Do you see that?
A.
Yes.
Q.
That is, again, indicating an understanding, by those
in positions of power within the Order, that the abuse of
children was something that could be expected to continue
rather than be isolated?
A.
Yes.
Q.
Then in 1947, at Bindoon, there was a visitation
report. The visitation report would have arisen from the
annual visits that you referred to earlier?
A.
Yes.
Q.
This visitation report concluded that:
... Bindoon was never fitted out as
a school and was never intended to take
boys who should be really under a woman's
care ...
Now, just dealing with the first bit, "was never fitted out
as a school", from your understanding of Bindoon's history,
that is the case, isn't it - that it was never initially
fitted out as a school?
A.
It first of all functioned as - I'm not sure what you
would call it. I don't know whether a "school" would be
the right word. But it received, as I said yesterday, boys
from the courts, wards of the State. I think it was
supposed to function - what's the word? - give them sort of
practical skills, by working - training them in practical
skills that would enable them to get a job when they left
the institution.
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A J SHANAHAN (Ms Furness)
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So I presume that's what the reference is, that it
wasn't sort of set up prior to this to run a conventional
school program with classrooms and lessons and so on.
The other thing about Bindoon at that stage - and it
also connects with the visitation report we looked at
yesterday in regard to I think the proximity of brothers'
rooms and boys' rooms - that all through these years,
building was still going on. One of the many factors,
I think, that contributed to the - well, what ended up
being a tragic state of affairs I think in the late 1940s,
early 1950s at Bindoon, was that the place was still being
built, you might say, got ready, and many child migrants
and others, mainly child migrants, were coming in. So the
place was overcrowded and still hadn't been properly
completed in regard to its facilities.
Q.
And indeed, the boys were used to complete those
facilities, weren't they, in terms of labour?
A.
They were, yes.
Q.
Was it really a school in these days, in the 1940s, or
was it more a place to house boys and have them work within
the community to improve the community by way of facilities
and also to prepare them for a working life?
A.
I think it was more of the latter. I don't know
whether I know the situation well enough to sort of say was
it a school or not. But from all the information that I've
had access to, and that we've had access to here in these
hearings, the schooling side of it seems to have been
fairly - well, token and incidental, unfortunately.
Q.
Particularly given the Christian Brothers was
established as primarily an Order to educate boys.
A.
Yes - to educate and care for poor boys especially, so
that training in practical skills, you might say vocational
training, has always been part of our tradition. So it
wasn't just education perhaps in a more -Q.
Reading and writing -A.
-- limited sense of academic education, but vocational
training as well.
Q.
The second point that is made in this visitation
report is that:
... was never intended to take boys who
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should be really under a woman's care ...
Now, what does that say to you as a brother?
A.
Two things occur to me. One would be that it may be
a reference to the age of some of the boys. I think we had
some evidence last week about the fact that, theoretically,
you had to be 10 before you moved to Bindoon, but some
children found themselves even before they had turned 10,
and even then, looking back, you think 10- and 11-year-olds
are still at a pretty tender age. So I take it as
a comment on that.
The impression I get from the sources I have seen
would suggest that, of all of the institutions, Bindoon was
a pretty spartan, bare, masculine sort of place. I think
there was reference in some of the inspection reports to
questions of cleanliness. So it may be also a reference to
the fact that what you would refer to as a woman's touch
was sadly lacking at Bindoon.
Q.
Were there nuns at any of these four institutions at
any time, to your knowledge?
A.
I'm going now on some of the evidence we got last week
that there were Spanish Benedictine sisters working in the
kitchen. I got - now, the short answer is I don't really
know what role they played, apart from working in the
kitchen. I got the impression that their interaction with
the boys was somewhat limited, perhaps because of reasons
of language - yes, which is perhaps, in retrospect, a pity,
because if they had had more of a role in caring for the
boys other than their role in the kitchen, then something
constructive would have been achieved perhaps.
Q.
In the institutions that are currently run by the
Christian Brothers, what attention is given to having women
involved in the work being undertaken in those facilities?
A.
I'm not sure that we - certainly in Australia, I don't
think we run any institutions like this any more.
Q.
So any more residential institutions, is that what you
are saying?
A.
We have some boarding schools still, not so many as
before.
Q.
But just dealing, if we can, for the moment, with the
boarding schools -A.
Yes.
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Q.
-- does the Christian Brothers employ women in
positions of -A.
Yes.
Q.
-- some authority, as opposed to cleaners, within
those boarding schools?
A.
Yes. Like a common arrangement, I think, would be
that the house master of a boarding house would actually be
a family. I suppose in most cases it is the man who is,
like, being employed as the boarding master, but where it
is possible for him and his family to reside in the
boarding house and to promote a family atmosphere, that is
done.
Q.
So I take it he is not a brother.
A.
He is not a brother. And there are other carers
around. I think in one of the schools I'm aware of they
would have what I refer to as house mothers, who would be
around, say, in the afternoons, when the boys come home
from school, who would help out with things like sewing
repairs to uniforms, and that sort of thing.
Q.
In terms of the infirmary which existed in at least
one, if not all, of these institutions, from your
understanding of the reading that you have done for the
purposes of the Royal Commission, were they staffed by
women?
A.
I couldn't answer for all of them. I certainly know
that from the 1970s - maybe even the 1960s - the nurse there was a female nurse employed at Castledare.
Castledare also had a matron. As I say, I'm not too sure
about the situation at the other places. I think - like in
the boarding schools, it would be very common to have
females in charge of the infirmary.
Q.
Just turning over to the next page, this is April
1948, and Brother Lambert Wise again appears. He was at
Bindoon, and the complaint against him was in relation to
his attitude and demeanour towards boys. Again, this arose
from a visitation report, and it indicated here:
Br Lambert was given very definite and
serious advice during the visitation
regarding correct attitude and demeanour
towards the boys ... Boys should not be
allowed to make up a Brother's bedroom.
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So it is clear from this that those from the provincial
council who undertook the visits on an annual or otherwise
basis were able to observe and record conduct which was
contrary to the constitutions.
A.
That's correct.
Q.
And understood, at least from this visitation report,
the dangers that would be created if the constitution
wasn't followed?
A.
Correct.
Q.
Particularly in relation to boys being in a brother's
bedroom?
A.
Yes.
Q.
Just remind us again, brother - who was it who
undertook the visitation reports, in terms of their
position within the hierarchy of the Christian Brothers?
A.
The visitation would have been or was conducted by one
of the provincial council. So if it wasn't the provincial
himself, it was one of the consulters. And at the end of
the visitation, a report was written. At this time, I'm
not sure whether the report was intended for the provincial
council at its meeting - like the report certainly would
have gone to the provincial council and been discussed.
Probably the report per se wouldn't have gone to the
superior at Bindoon, but I'm assuming that some
communication about any concerns arising such as these
would have been communicated to the superior at Bindoon,
that as a result of the visitation, these concerns had come
up and that he should do X, Y or Z.
Q.
It may well have been if he was present at the time
that the person who conducted the visit from the provincial
council spoke not only to Brother Lambert but also to the
superior at the time?
A.
I would be surprised if he didn't.
Q.
Then in 1949 we have Brother Whyte in Kalgoorlie, who
was warned, because he was being free with senior boys;
1950, we have Brother Boulter in Bindoon, and what is
referred to as the complaint is that:
A boy of dangerous character made
allegations of misconduct.
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As a result of which the boy was transferred to Tardun.
That suggests, doesn't it, that those allegations weren't
believed?
A.
I think so.
Q.
Again, in 1950, Brother Holohan received a canonical
warning for immorality and abuse of children?
A.
Yes.
Q.
We don't know whether Brother Holohan was located.
Also in 1950, Brother McGee was complained about for severe
corporal punishment, including slapping of naked boys. Do
you see that?
A.
Yes.
Q.
It's not unreasonable to conclude that the slapping of
naked boys probably involved more than just punishment, but
was also done for sexual gratification?
A.
One could easily imagine that, yes.
Q.
Now, we are still in 1950, and Brother Levander at
Castle Hill - that's likely to be Castle Hill in Sydney?
A.
It is.
Q.
He had a weakness in dealing with boys, and
Brother Coldrey's 1992 report noted that:
Finds it hard or impossible to conquer
weakness.
Do you see that?
A.
Yes.
Q.
Again, what is being referred to here is the nature of
the offending being likely to recur.
A.
Yes.
Q.
There is no reference, so far, is there, to treatment
of any sort?
A.
No. I don't think that concept was - I don't know if
it was abroad in the wider society. I'm sure it wasn't
abroad in our congregation at that time.
Q.
Because it was still seen as some sort of moral
failing, wasn't it?
A.
Well, yes, I think, with the additional qualification
of the references that we have had in these letters, that
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people could see that there was, to use a modern term, an
element of the addictive about the behaviour; that people
might have said "I will try harder and I have made
resolutions to be more circumspect", et cetera, et cetera,
but they relapsed in many cases.
Q.
Other than moving the brother to another location,
there is no reference in these reports to altering the
nature of the environment to reduce opportunity, is there?
A.
No. No.
Q.
For example, removing the dormitories in a different
location from the brothers' rooms, and similar things?
A.
No, there is no reference that I have seen to, as you
say, restructuring the situation to try to make things
safer.
Q.
A.
Changing the environment in which the boys lived?
Yes.
Q.
We turn now to 1951 with Brother Paul Smyth, who had
also had a complaint against him in 1942, and again, the
complaint is immorality and abuse of children. Apparently,
it was further investigated. Then in 1951, Brother Albert
Williams also had a complaint of immorality/abuse of
children. Then, also in 1951, there is a visitation to
Clontarf. This visitation report records that:
Brothers should be most careful at all
times to preserve the greatest reserve with
the boys. Special care is called for in
the dormitories. The hands-off rule is our
safeguard.
Now, that again refers back to the constitutions which
spoke of no touching?
A.
Exactly.
Q.
But also it notes that the dormitories themselves
required special care.
A.
Yes.
Q.
Again, there is no reference to altering the structure
in order to avoid the problems posed by the dormitories.
A.
No.
Q.
In 1952, Brother Macallen received a canonical warning
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for immorality or abuse of
Brother Lambert Wise again
He was complained about in
Castledare. The complaint
children. Then in 1952
is the subject of a complaint.
1948 and he, of course, was at
against him was:
Sending boys to his room for attention to
bruises and similar complaints.
Do you see that?
A.
Yes.
Q.
Again, that's inconsistent with the constitution, is
it not?
A.
Oh, it is.
Q.
The letter from assistant Brother Duffy to
Brother Carroll - who was Brother Carroll likely to have
been in 1952?
A.
He was one of the provincial council. So the
Assistant Brother Duffy, who was an Australian but was
based in Ireland, or I think the administration, the
central administration was still based in Ireland then,
writing to one of the provincial council in Australia.
Q.
How would it have come to Assistant Brother Duffy's
attention, do you think?
A.
In addition to visitation of communities within the
province, there was also a system of visitation by members
of the general council to each of the provinces. So
I think the system was that at least once during the
six-year term of office, a member of the general council
would come and visit the various communities, schools
institutions in the province, spend time in the province
and make his own assessment. So it could have been that
Brother Duffy was here on a visitation and had come to, you
know, these conclusions or formed these opinions that he is
expressing here.
Q.
So he says:
You will be well advised of desirability of
keeping Br Wise away from all supervision
of the boys ... the greatest care should be
taken to protect him and the boys.
The consequence is that Brother Duffy told Brother Wise to
cease "it" - that is, sending boys to his room and make
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WA2141
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better arrangements, and ultimately,
transferred in 1955 to Melbourne and
as possible. Now, I take it that is
a reference to him having been asked
rather than being expelled?
A.
Yes.
Brother Wise was
told to leave as soon
likely to be
to seek dispensation
Q.
That seems likely, doesn't it?
A.
Yes, I mean - yes, it does. I mean, I'm puzzled by
the reference, because he clearly didn't leave at that
point, because he continued in the congregation until the
mid 1970s.
Q.
We will come to him a bit later in the chronology
again, I think. Now, in 1953, Brother Dillon received
a canonical warning for immorality or abuse of children.
Also in that year, a Brother Murphy at Rostrevor, which
I think is in Adelaide -A.
It is.
Q.
-- was further investigated for immorality or abuse of
children. Also in 1953, another brother, this time
Brother Brookes, received a canonical warning and was
censored [sic] for immorality and abuse of children. What
does "censored" [sic] mean?
A.
"Censured"
Q.
A.
What does "censured" mean?
Censure would be a reprimand.
Q.
Now, still in 1953, and again at Lewisham - we know
that Lewisham came up earlier - there was an unnamed
brother referred to in relation to interference with boys.
Then still in 1953 we have Brother Parker, who was the
subject of allegations of one or more of the 11 men who
have given evidence here, at Bindoon, and the nature of the
complaint is "Difficulty with the second vow". Now,
I think you indicated yesterday, that refers to the vow of
chastity?
A.
Yes.
Q.
The visitation report refers to Brother Parker as
being:
... still beset by his own inner troubles
about which he spoke with complete candour.
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WA2142
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So, just stopping there, it is clear that the provincial
council member was able to talk to Brother Parker and hear
from Brother Parker his admissions about his conduct?
A.
Yes.
Q.
The second vow has long been of difficulty
for him. No individual is involved ... in
his own interests his contact with the boys
ought to be reduced ...
There is no reference there to any consequence for the
brother, is there?
A.
No.
Q.
It seems likely, doesn't it, that the brother was left
to his own devices to come to terms with his conduct and
manage it himself?
A.
Yes.
Q.
Still in 1953, Brother Marcian Quaine at Parade where is Parade?
A.
The Brothers' original college in Melbourne was on
Victoria Parade. They have moved from there and since they
are not on that site, but Parade College is still the name
of the school, even though it is not located on
Victoria Parade, which is a thoroughfare in East Melbourne,
I think.
Q.
A.
Was Parade a residential school or a day school?
No, a day school.
Q.
The complaint against him is "Hands on private parts
of boys", and there is a letter from Brother Duffy to
Provincial Garvey, noting that:
If he has gone astray in the matter in
Launceston you will have to consider
transferring him ...
That suggests that there was a previous complaint against
him when he was in Launceston, doesn't it?
A.
It does.
Q.
Which hasn't been recorded in these documents. And
the response to having gone astray is again to transfer
him - do you see that? That's the recommendation?
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WA2143
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A.
From Launceston to Parade - do you mean?
Q.
That seems to be the conduct of the provincial to
transfer him to Parade. And:
I have good reason to believe that it
happened and that kind of weakness does not
easily die.
Do you see that?
A.
Yes.
Q.
Again, a further reference to the Order being of the
belief that sexual offending against children is likely to
recur?
A.
Mmm, especially, from these documents, on the part of
Brother Duffy on the general council seems to have
a particular concern about this.
Q.
That concern is one that would be shared with current
knowledge, isn't it?
A.
Oh, yes, yes.
Q.
We are still in 1953, and this is a letter from
Brother Duffy to Brother Provincial:
For anyone with the tendency there is
always the danger of further outbreak and
we are bound to protect both the boys and
the good name of the Institution ... bound
to do all that we can to remove every
possible danger of any recurrence ...
Do you see that?
A.
Yes.
Q.
Notwithstanding those words, from the events that we
have considered already, the outcome, short of the
dispensation or expulsion, was either to transfer the
person or to give a warning of one sort or another.
A.
Yes, that's correct.
Q.
So the reference to "bound to do all that we can to
remove any possible danger of any recurrence" seemed to be
limited to those matters I've just described.
A.
Yes, that's - I mean, the evidence doesn't indicate
that they were able to think, or did think, any more
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WA2144
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broadly on that.
Q.
In 1954, Brother Seery received a canonical warning
and a censure in relation to a complaint that involved
a girl. In 1954, Brother Marcian, who I think is a
reference to Brother Marcian Quaine, was now in Tasmania.
Do you see that?
A.
Yes.
Q.
That suggests, does it not, that the letter that we
discussed earlier in relation to October 1953 in Launceston
might well have been known?
A.
I am just wondering - if he was in Launceston and was
moved to Melbourne, has he been moved back to Tasmania?
I mean, it -Q.
That's a possibility.
A.
But where in Tasmania - if it is in Launceston or
Hobart or somewhere else - I'm a bit puzzled by what that
would mean.
Q.
In any event, it is safe to conclude that there was at
least one complaint against him and he was moved as
a result of the complaint?
A.
Yes.
Q.
Over the page at 1954, Brother Wise again is the
subject of communication, and he, of course, was from
Castledare. He had previously been the subject of
complaints in 1948 and 1952, and there is a letter from
Dublin to Brother Provincial:
Well advised to let Brother Laserian know.
Do you know who Brother Laserian was?
A.
I think I do. Brother Patrick Laserian O'Doherty had,
I think just recently, become the superior at Castledare,
so he was saying to let the superior know, et cetera,
et cetera.
Q.
And:
During the next visitation -
And that is on the basis that one of the provincial council
would undertake that visitation -
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WA2145
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... of the desirability of keeping
Br Lambert away from supervision of the
boys ... His relations with boys have given
rise for concern before ... the greatest
care should be taken to protect both him
and the boys.
From your understanding of how these orphanages worked, the
number of brothers and the workload there was, it would
have been almost impossible to keep any named brother away
from supervising the boys, wouldn't it?
A.
Yes, you are probably right. There may have been some
forms of supervision that were considered safer than
others, for example, supervising boys playing football out
on a field or supervising boys in the dining room during
their meals was not the same, I think, in regard to risk,
as supervising them when they were going to bed of an
evening.
Q.
From your understanding of the way the orphanages
worked, the boys slept in dormitories?
A.
Yes.
Q.
A.
And the brothers slept in individual rooms or -Yes.
Q.
A.
Individual rooms.
Yes.
Q.
And one or more brother's individual room was very
close to the dormitory, and that was generally the
supervising brother for the dormitory?
A.
That was a common arrangement, that the room was in
proximity to the dormitory.
Q.
Where did the other brothers sleep if they weren't in
proximity to the dormitory?
A.
There was usually a part of the buildings that would
have been regarded as the community residence and there
would have been bedrooms there, as well as the other sort
of rooms that you would expect in a residence, like
a kitchen, a dining room, a lounge room.
Q.
But as you understood it, the brothers had separate
rooms?
A.
Yes.
.06/05/2014 (WA19)
WA2146
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Q.
Brother Marcian is the subject of a letter in 1954 and
again there is reference in the letter to Provincial Garvey
to:
... that particular weakness Which is the sexual abuse of children is difficult to root out.
It notes:
It is remarkable how it tends to break out
time after time.
It is the next paragraph that raises a different issue.
Perhaps if I can ask you to read that next paragraph,
brother, the "greatest troubles" paragraph.
A.
... the greatest troubles with the weakness
is the harm that it does to the boys. Boys
seem to find it hard to forget anything of
the nature especially on the part of one
whose office it is to deplore such conduct
and there is the danger that the same
weakness may manifest itself in the boys
when they are later placed in somewhat the
same circumstances ...
Q.
That's the first occasion at least in these records,
1954, that there is a recognition of the extent of the harm
done to the boys?
A.
Yes, I think that's true.
Q.
That it is not the case that boys will get over a bit
of fondling and leave it behind them - is it?
A.
That's correct.
Q.
There is also reference there to the danger that
children who are sexually assaulted may assault other boys
when placed in similar circumstances; do you see that?
A.
Yes.
Q.
But again, this is 1954, there were no changes evident
at around this time or soon thereafter of a fundamental
nature in the way in which these places were operated?
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WA2147
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A.
Correct.
Q.
In 1955 now, we have Brother Hynes, whose complained
about for interfering with boys, and he wasn't expelled,
but there was a reprimand and a penance to be regarded as
a canonical warning. Then over the page to now 1956,
Brother Nicholas Murphy, who was complained about for
immorality/abuse of children. The consequence was
"Recommended dismissal to the Superior General", and that's
reflective of what you said yesterday, that the superior
general had to dismiss. He was the only one with that
power.
A.
Yes.
Q.
That same year, 1956, Brother Baumgartner received
a dispensation from vows for immorality and abuse of
children. The same year, Brother Hills, with the same
complaint, received a censure. In 1956, a Brother Seery
who had been the subject of a complaint in 1954 which
involved a girl, on this occasion received a canonical
warning and a censure. Just turning back to 1954, he
received a canonical warning and a censure in 1954, and
again in 1956. Does that tell you anything about the
approach of the Order at that time?
A.
We are going around in circles.
Q.
Well, they are certainly not taking the second
complaint more seriously in terms of consequence, are they?
A.
It doesn't look like it, no.
Q.
In 1957 we have Brother Fabian Jordan, at Tardun, the
complaint being that there was not happiness about his
relationships with the boys, and ultimately there was
a dispensation. Do you see there that there is reference
to "Provincial Council voted 5 nil in favour of his
dispensation."
A.
Yes.
Q.
What does that mean?
A.
Well, when someone was applying for dispensation, they
would write a letter addressed to the superior general,
requesting dispensation and setting out some reasons for it
and, you know, outlining how they had reflected adequately
on this move and had taken counsel, and so on. The letter
would then be considered by the provincial council of that
particular brother's province who would then be asked to
express their own opinion about his application. So what
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WA2148
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was then forwarded to the superior general and his council
in Ireland - wherever we are up to, yes, I think still
Ireland - would be the man's letter of application as well
as the vote and opinion of the provincial council. So the
provincial council took a formal vote as to whether or not
they supported his application for dispensation.
Q.
A.
And in this case, they did?
Yes.
Q.
In 1957, Brother Alonzo Angus, at Clontarf - the
complaint was allowing boys to enter his bedroom. This was
again as a result of a visitation report. It refers to:
... boys wander through those parts of the
house that are reserved for the brothers
and the superior ... there appears to have
been serious violation in this matter in
the recent past and boys have been known to
enter a brother's room, singly and in
groups and to spend considerable time there
... Brothers in charge of dormitories were
told to attend to the needs of the boys
outside their rooms or in places reserved
for the purpose. [Brother Angus] was also
found at fault in permitting boys to enter
his bedroom ...
It refers there to a serious view being taken of the
conduct, and from the constitutions it is known that this
conduct was seriously in breach of the constitutions,
wasn't it?
A.
Yes.
Q.
And it was repeated by reference to this visitation
report. And yet there was no consequence for
Brother Angus?
A.
Yes, it doesn't appear that there was, and he
certainly went on abusing.
Q.
In 1957 we then come back to Brother Wise, who was the
subject of complaints in 1948, 1952 and 1954. He was at
Rostrevor and there was a letter from Brother Clancy in
Dublin to Brother Provincial Garvey. On this occasion,
Brother Clancy in Dublin is telling Brother Provincial
Garvey that:
Lambert
.06/05/2014 (WA19)
WA2149
A J SHANAHAN (Ms Furness)
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... Brother Wise is a member of your
teaching staff ... Some reason in the past
to believe that contact with the boys
constituted a danger to him ... it is the
kind of thing that unfortunately does not
easily die but has the habit of
unexpectedly reasserting itself ...
and bringing that to his attention.
How might that letter have come about, do you think?
A.
I don't really know.
Q.
It seems odd to come from Dublin to Brother Provincial
Garvey about the conduct of an Australian brother, when the
conduct of that brother was known to the provincial council
before 1957?
A.
Yes. Whether there had been a visitation in
Australia, whether one of Brother Clancy's assistants had
come back and mentioned something about Rostrevor and the
brothers who were there, and the matter had sort of
accidentally, you might say, come to the attention of
Brother Clancy. We have had a number of pieces of
correspondence from Brother Duffy, who seemed to have had
a particular awareness of the whole problem and a concern
about it. So whether he was speaking to Brother Clancy,
like whether he was keeping an eye on the Australian
province - provinces, now, there were two of them - because
one of the things that would be done would be that lists of
the brothers in each community each year I think would be
sent to the headquarters in Ireland. So they would have
lists of the brothers who were stationed in each particular
community and school. So perhaps they noticed that his
name was on the list at Rostrevor and put two and two
together. It is a boarding college. But that's my
speculation, obviously.
Q.
So Ireland had the lists of who was where?
A.
Yes. Like provincial councils made those decisions,
but would keep the general council informed about such
things.
Q.
In 1958 there were three brothers, each of whom had
a complaint of immorality or abuse of children. The first
was noted to be "readmitted". Can you help us with that?
A.
No, not really. We have had Baumgartner before,
haven't we?
.06/05/2014 (WA19)
WA2150
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Q.
Yes, in 1956, Baumgartner was the subject of
a complaint and on that occasion there was a dispensation.
A.
Well, I can only conclude that he had a dispensation
and then applied to re-enter the congregation. But, now,
consequence for the brother - no, I can't make sense of it.
Because if he left the congregation and was now being
readmitted, I don't know where this complaint would have
come from. It doesn't seem like a logical consequence that
if he has been charged with something or accused of
something like that, that he would then be readmitted. So
I don't know what it all means.
Q.
The other two received a canonical warning. Then if
we can turn to 1959, Brother Laurian McLaughlin at Clontarf
kissed and embraced a boy, and it appears without
consequence; do you see that?
A.
Yes.
Q.
Then the same year, 1959, a Brother Platell received
a dispensation in respect of his conduct with little girls?
A.
Yes.
Q.
Then also in 1959, Brother Parker is the subject of
a complaint of immorality with boys. Now, Brother Parker
was the subject of a complaint in 1953. It was noted from
a visitation report that he had difficulty with the second
vow, without consequence, and it still appears in 1959
there is no consequence for Brother Parker with respect to
his immorality with boys; would you agree with that?
A.
Yes.
Q.
Still in 1959, Brother Dowd at Cygnet - where is
Cygnet?
A.
Tasmania.
Q.
He had a complaint of fondling a girl aged 10 and, as
a result, was moved to Wakefield. That's likely to be
a reference to Adelaide?
A.
Wakefield Street in Adelaide.
Q.
A.
That's a day school?
That's a day school.
Q.
In the late 1950s, did the Christian Brothers operate
schools that were co-edcational?
A.
No.
.06/05/2014 (WA19)
WA2151
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Q.
So any reference to a "girl" is a girl who he had
contact with outside of the schooling?
A.
Yes.
Q.
Still in 1959, Brother Smith from Castledare had
a complaint of interfering with boys and he was moved to
Moonee Ponds. There is a reference in Brother Coldrey's
1992 report to Brother Smith, noting that he admitted
a less serious charge and denied the more serious charge of
inviting them to touch his private parts. Again, Moonee
Ponds was a residential school, was it?
A.
No, no, it was a -Q.
A.
Day school?
Day school in suburban Melbourne.
Q.
Just looking back to 1946 with Brother Smith, there is
reference in 1946 to Brother Smith being transferred to
Moonee Ponds and given a canonical warning. That seems to
suggest that he was transferred elsewhere and then needed
to go back to Moonee Ponds. That's on the bottom of
page 10.
A.
Mmm-hmm.
Q.
Is that how you read that, brother?
A.
Well, yes. I mean, it would appear, if the dates and
so on are correct, that he was transferred from somewhere we don't know where - to Moonee Ponds; later on was back at
Castledare, or was at Castledare, and then, after this
complaint, was moved to Moonee Ponds. So he was there at
least a second time.
Q.
Yes. Turning over the page - this is still 1959 in
relation to Brother Smith - this time there is a letter
from Brother Duffy to Provincial Garvey. Again, this is
a reference - page 20 - to:
... unfortunately that sort of trouble
never seems to be very far away and it does
so much dreadful harm - especially to the
boys concerned and to others who may hear
of it.
And there is reference to having given a "CW".
likely to be a canonical warning, isn't it?
A.
I presume so.
That's
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Q.
I believe that there is no other course to
follow but to impress upon transgressors
the seriousness of the fault and the
scandal that accompanies it ...
Now, does "scandal" have any particular meaning in the
religious world?
A.
I think last week some of the men who gave testimony
I think referred to the fact that what had happened to them
shattered any faith they might have had in God and - like
changed their whole sense of themselves and their world
view. Like, that would be part of what I think is meant by
"scandal" here, as well as the whole thing about the
reputation of the organisation and the trust that we
expected parents to place in us when they sent their
children to our schools.
Q.
Again, the reference to "there is no other course to
follow" suggests that at this time the provincial and those
advising him could not think of any other way of dealing
with these matters other than by transfer, self-reflection
and, on occasions, the dispensation, warnings and
occasionally expulsion.
A.
Well, just looking at this document yesterday and
today, there is one thing that strikes me as we're going,
moving from the 1940s into the 1950s, is that the
expulsions and dismissals disappear.
Q.
Yes. They have, haven't they?
A.
And there are references in Brother Coldrey's research
to Brother Garvey's sort of tardiness, and we've had
a number of letters - Brother Duffy writing to
Brother Garvey presumably trying to compress on him that
there is a problem and perhaps the situation that
Brother Garvey is slow to take any action. Certainly
action of the more decisive sort that we saw in the earlier
period of brothers being expelled or dismissed doesn't seem
to have happened in the 1950s.
Q.
And there was a change in the provincial council and
the provincial in the 1950s, to your knowledge?
A.
Yes, 1953, what was one province based in Sydney
became two provinces. There was a Sydney Province and now
the new - the Southern Province, so-called, based in
Melbourne, was responsible for the Western Australian
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institutions. So Brother Garvey became provincial in
Melbourne from 1953.
Q.
So we have a recommended expulsion in 1945, at the top
of page 10, but there doesn't appear to be any expulsion
since 1945. You would put that down to the new provincial
in the 1950s, different view of consequences?
A.
I wouldn't put it down entirely to the new provincial,
because there is a fair gap between 1945 and 1953.
Q.
Yes.
A.
So something seems to have shifted or changed, but
I don't know how to explain it.
Q.
Was Garvey likely to have been on the council before
he became provincial?
A.
It's possible, but I'm not certain whether he was.
Q.
Coming back to where we were, at page 20, there is
a visitation report in 1959 at Bindoon, and there is
reference there to "the Abbot". Who is the abbot?
A.
The abbot of New Norcia. New Norcia was a Benedictine
monastery maybe 40 or 50 kilometres up the road north of
Bindoon. Father William, who figured in testimony last
week, was a Benedictine monk of that monastery. I think
there was a reference last week also to a Father Gerard.
I'm not so familiar with him, but I can only presume he was
also a Benedictine.
Q.
Father Gerard Williams, yes.
A.
Anyway, I'm not sure. But certainly Father William,
if I remember correctly, had some architectural background
and helped to design the buildings at Bindoon. So, yes,
the abbot of New Norcia - and just like another little
historical bit, the formal arrangement entered into by the
Catholic Church in Western Australia to receive child
migrants involved the Archbishop of Perth and the abbot of
New Norcia. The abbot of a monastery has the authority
comparable to that of a bishop within the monastery, and
any territory that is sort of part of the monastery's
jurisdiction, you might say.
Q.
It there refers to:
The Abbot learned of immorality among the
boys and the failure of the Superior to
take drastic measures ...
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... the whole trouble lay in the type of
men the Provincial Council had given him "him" being the abbot men who could not supervise boys.
Is that how you read that?
A.
I would imagine - sorry, this is the visitation
report. "The whole trouble lay in the type of men the
provincial council had given him". I assume that's the
superior speaking, but that would be my interpretation,
because if the superior was asked to respond to this sort
of complaint, he may well have said, "Look, the sort of men
I have, who have been sent here, they are not capable of
doing the job as expected."
Q.
Then still in 1959 there is another complaint of
interfering with boys against Brother Angus at Clontarf,
and a visitation report notes that the charge had come up a
couple of years earlier and came to the notice of the
superior and the brother denied the charge to both the
superior and the provincial council, and "there the matter
rests".
A.
Yes.
Q.
Then, over the page, there is a number of additional
references in 1959 to Clontarf and Castledare. Firstly,
there is Brother Laurian, and that's as a result of
a visitation report, where he was either observed to be, or
the visitation report indicated that there was kissing and
embracing of children. The visitation report noted that
the brother didn't regard his actions with the boys as
fundamentally wrong, and there is no consequence for the
brother. Do you see that?
A.
I do. I am wondering if it is the same entry for this
man, Laurian McLaughlin, back on page 19, also listed in
1959 at Clontarf.
Q.
Yes, it may be. Then if you go back further to 1957 yes, it may be that this is the reference to him, 1959,
rather than 1957. But the fact that he didn't regard his
actions with the boy as fundamentally wrong suggests,
because of the lack of consequences, that again, that's
where the matter was left.
A.
Yes, you would have to draw that conclusion.
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Q.
Then again, Brother Angus, together with
Brother Laurian, there were complaints to the Reverend
Brother Doyle following a visitation report, and the
response to those complaints seemed to be that the brothers
the subject of complaint were written to. Do you see that?
A.
Yes. I'm just trying to work out who Brother Bruno is
as distinct from Reverend Brother Doyle, because the
Brother Doyle who was in charge at Clontarf was
Bruno Doyle, unless there was another Brother Doyle here
somewhere, unless there was a Brother Doyle on the
provincial council who had come to do the visitation or
something like that, but it is confusing as it stands.
Q.
So leaving aside who precisely wrote the letter
following the report, the result seems to be that the
brothers the subject of complaint were told about the
complaint, and that's where the matter lay?
A.
Yes - well, yes, they were reminded of what was the
behaviour they should be observing, and that's where it was
left.
Q.
And it seems, doesn't it, as we move from the 1940s to
the 1950s, that increasingly the response to a complaint
was to tell the brother about the complaint, and if the
brother denied it, nothing more was done?
A.
Yes, there was a pattern of that.
Q.
Then still in 1959, Brother Salvius Marques at
Castledare, he was written to in response to allegations
and asked for his reply. Do you see that?
A.
Yes.
Q.
Brother Laurian, again at Clontarf, in respect of the
kissing and embracing that is referred to earlier in that
page, a letter was written to him saying:
I positively forbid you to have a boy in
your room. I also wish to point out to you
that unless there is a big improvement in
your conduct in these matters you will be
found unworthy to continue ...
There is no reference to any consequence for
Brother Laurian, is there?
A.
Not there, no.
Q.
The superior in the Clontarf community clearly had the
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power to say to somebody, "I forbid you from doing
something."
A.
Yes.
Q.
Then also in 1959, again with Brother Salvius Marques,
he responds to the accusation and says:
I am pleased to say that the accusation is
completely untrue as far as I am concerned.
And there is no reference to any consequence for him, is
there?
A.
No.
Q.
Now, also, Brother Angus, in August 1959, responds to
Provincial Garvey in respect to the allegations and says:
I wish to repeat as I did at the time of
the visitation that the boy is telling an
untruth.
And again, no consequence for the brother.
A.
That's correct.
Q.
Still in 1959, and in respect of these three brothers
the subject of allegation, there is correspondence from
Brother Duffy to Provincial Garvey. You might read that
for us, if you wouldn't mind, brother.
A.
You referred to the matter of those accused
of interfering with boys in the West ...
Although it is perhaps out of my province
to be writing to you at all about this
matter, still I am taking the liberty of
asking you to ensure that the most careful
investigation is made concerning these
charges ... Where evidence of serious
misconduct is sustained, a Canonical
Warning does not always meet the situation
and I think the question of dismissal
should be considered.
... if memory serves me correctly, that
similar charges were preferred on some
former occasion ... I find it difficult to
accept the claim that he did not realise
that his conduct in Clontarf was very
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dangerous and very unseemly. His instincts
would surely warn him. In any case, it
would seem that he has a most dangerous
weakness to say the least.
Q.
A.
Brother Duffy is in Ireland at this stage?
Yes.
Q.
It seems from this correspondence that he takes a far
more serious view of the conduct than Provincial Garvey.
A.
Yes.
Q.
We have come to 1960. I will tell you in a moment, at
this stage, how many brothers we have considered within the
50.s, but turning firstly to 1960, Brother Jordan at
Fremantle, there was a dispensation following not being
happy about his relations with boys. Do you see that
Brother Jordan was initially at Tardun and was removed from
Tardun in February 1958, warned, and he promised to be more
circumspect, and he was clearly moved to Fremantle?
A.
Yes.
Q.
I take it there was more than one institution he could
have been transferred to in Fremantle?
A.
No. There was one school we had in Fremantle, and it
was a day school.
Q.
And there was a dispensation.
A.
Yes. The reference to - I presume it is the same man,
Jordan, at Tardun in 1957.
Q.
It appears to be.
A.
It records a dispensation then. Clearly, there wasn't
a dispensation at that point if he was being dispensed in
1960, three years later.
Q.
There is reference in the nature of the complaint to
the arrest of Brother Jordan. Do you see that?
A.
Sorry, where are we now?
Q.
Under "Complaint":
Letter to Reverend Brother Clancy re arrest
of Brother Jordan.
A.
Yes.
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WA2158
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Q.
There is no more reference to an outcome, if there was
indeed an arrest. Now, there were 24 further men in the
1950s. We had, I think, 32 or 34 up to 1944. And we just
need the remaining between 1944 and 1950 to get the
complete number up to the end of 1959.
We are up to 1961 on page 23, reference to a police
investigation into boys' accusations in Middle Park with
Brother Claude. That's the first occasion, save for the
1990 conviction, that there has been reference to police
activity; you would agree with that?
A.
Yes.
Q.
Then in 1962, Brother Murray at Castledare, following
a visitation report, there was reference to "favouritism
towards boys", and it may be this reference you were
referring to earlier, Brother Shanahan, in respect of
"rearing very young boys", "grades I and II"?
A.
Yes.
Q.
Then still in 1962, another reference to
Brother Marques at Bindoon. And again, a further
visitation report saying:
His relationship with boys is suspect but
proof is difficult.
You will recall that Brother Marques denied an allegation
made against him earlier.
A.
Yes.
Q.
Then there is reference to Brother Dick in 1964. The
complaint is attempted rape. The visitation report refers
to:
His control of boys is good and he appears
to have overcome earlier difficulties he
experienced in that regard.
Would it be fair to interpret that as in relation to
excessive punishment?
A.
The difficulties he experienced - yes. My
understanding, from what I have heard about him, is that he
could be very jovial, but he had an explosive temper and
could very quickly lose his temper and lose control.
Q.
He was ultimately convicted of sexual assault
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offences?
A.
Yes, in the 1990s. I think we heard about that
yesterday from Mr Fiannaca.
Q.
In 1969, Brother Carey from Castledare, the complaint
was "petting boys". He was transferred to Bindoon and
later withdrew from the congregation. Castledare was
a residential institution?
A.
It was.
Q.
A.
As was Bindoon?
Yes.
Q.
So this is an occasion where a brother, the subject of
a complaint in relation to boys, was transferred from one
residential institution to another.
A.
Yes.
Q.
And later withdrew from the congregation.
A.
Yes. He may have been annually professed and it's
possible that him being sent to Bindoon, he was just put
there as a supernumerary, sort of without much to do,
just - see, it is a bit difficult to know, but depending on
the time of the year, if it was just a couple of months
before his vows expired, they may have just parked him
somewhere until that -Q.
But parked him in a residential facility with access
to children?
A.
Yes.
Q.
Then still in 1969, Brother Carey at Castledare,
a complaint of "petting boys". Then Brother O'Connor -A.
That one - I presume that's a repetition of the one
before, is it? I don't think there were two Brother Careys
at Castledare in 1969.
Q.
No, it is likely to be the same entry. It appears in
two different places in our material, but I agree with you,
it is likely to be the same entry.
Then further in 1969, there is reference to
a Brother O'Connor, of interference with boys at
Castledare, and a brother who we are not naming in respect
of the same matter. Now, from that material, brother,
there appears to have been 70 different brothers identified
in the table. That's from 1919 to 1969. Eighteen brothers
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have been repeat offenders, Brother Keenan had four
separate accounts and Lambert Wise five separate accounts.
That knowledge that is contained in this chronology you
accept comes from documents that were held by the
Christian Brothers?
A.
Yes.
THE CHAIR:
Q.
Brother, how many brothers would there
have been during the 1950s in Christian Brothers in
Australia? What sort of numbers are we talking about?
A.
Guesstimating - I'm assuming it was somewhere, or
guessing it was somewhere getting close to 1,000. I'm
basing that on the fact that, to my knowledge, the
membership of the Christian Brothers reached an historic
high point in the year 1968 when there were about 3,600.
Q.
In Australia?
A.
No, no, in the whole world. And that something
approaching one-third of the congregation was in Australia,
also some brothers in New Zealand, not so many, and a few
in New Guinea. So I'm assuming that the figure, if not
1,000, was getting in the high hundreds, getting towards a
thousand, during the 1950s into the 1960s.
Q.
A.
How many are there today?
300, 400, maybe.
Q.
A.
In Australia?
300, maybe, yes.
Q.
In Australia?
A.
In Oceania, like the Province Oceania includes
Australia, New Zealand - the numbers are small there - and
New Guinea and East Timor, and a couple of brothers in the
Philippines. But, yes, the numbers are much smaller.
MS FURNESS:
Q.
There have been various reports, as the
Royal Commission has heard, over the last several decades
in relation to child migrants and various institutions, and
Brother Shanahan, you have made submissions on behalf of
the Christian Brothers to some of those?
A.
To the inquiries - the British House of Commons one,
yes. The submission I was involved with in 2000 to the
Senate - or 1999, whichever - to the Senate inquiry into
child migration was on behalf of a representative group
from the Catholic Church. It was on behalf of
Christian Brothers and other congregations and the dioceses
.06/05/2014 (WA19)
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that were involved.
Q.
Can I first just turn your attention to the submission
by the congregation to the Parliamentary Select Committee
on Child Migration in August 1996. If we can just have
that up on the screen, the number is CTJH.056.17112.0218.
That's the front page. I will show you the front
page first. Is that familiar to you, brother, the document
on the screen?
A.
Yes.
Q.
Perhaps we can turn to page 0231 to begin with. You
had a hand in this submission, I take it, Brother Shanahan?
A.
Yes.
Q.
The conclusions are coming up now, and there are four
conclusions on that page, and if we can turn to the next
page, paragraph (e) at the top of the next page, do you see
there is reference there to:
Now known that there were acts of physical
and sexual abuse perpetrated by some
individual Christian Brothers on the
students in their care, including some
child migrants.
A.
Yes.
Q.
Can I suggest to you that the reference to "it is now
known" suggests that that knowledge came quite recently,
perhaps from Brother Coldrey's report or something similar;
is that the intention of that sentence?
A.
Well, during the 1990s, you might say, since the time
of the Coldrey research - 1992, 1993, 1994, especially.
Q.
So in relation to the current leadership - that is,
current in the mid 1990s - the current leadership became
aware of the matters the subject of Brother Coldrey's
research and the material I have just taken you through in
about that time.
A.
Yes. We wouldn't have been aware - I wasn't aware,
anyway - of every single one of those cases. But what
I was aware of was the summary report that Brother Coldrey
prepared, I think, that we touched on yesterday, and it was
dated 1992, that attempted to sort of look at the executive
response to complaints and concerns in this area.
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Q.
But you accept, don't you, that the leadership of the
Christian Brothers in the 1920s, 1930s, 1940s, 1950s and
early 1960s, knew of acts of physical and sexual abuse by
reference to the documents I have just taken you to?
A.
Yes.
Q.
So the reference to "it is now known" must be read
down to reflect only the current leadership's knowledge?
A.
Yes. I mean, the leadership team that I was part of
from 1990 to 1996 and then that I was part of from 1996 on,
when this was composed, I think we, as individuals and as
a group, prior to 1988 or 1989, would have had no sense
that this had existed beforehand.
Q.
A.
No, and I'm not suggesting you did.
We became aware of it.
Q.
You became aware of it. But it is the case, isn't it,
that the leadership at the time of the 1920s, 1930s, 1940s,
1950s and 1960s - the relevant leadership at each time knew
of complaints of sexual abuse of children and, in some
cases, physical abuse of children, in their respective
decades, didn't they?
A.
Yes, that's right.
Q.
There was also a submission made by the
Christian Brothers to the British inquiry, and if we can
have that up on the screen as well. That's report
REPT.0003.001.0007. I take it you also played a role in
that submission?
A.
Yes.
Q.
A.
Do you have a copy of that with you?
I don't think I do.
Q.
It will come up on the screen. Do you see that,
"Memorandum by Congregation of Christian Brothers Holy
Spirit Province"?
A.
Yes.
Q.
Again, if we can turn to 0008 and scroll down to the
second numbered paragraph, there is reference there to:
It has been over the last 10 years that the
Christian Brothers and the wider public
have gradually become aware of the
experiences and the problems of former
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child migrants.
Do you see that?
A.
Yes.
Q.
Again, that's only in respect of the current
leadership of the Christian Brothers, isn't it?
A.
Yes.
Q.
The Christian Brothers as an Order had been aware
since 1919 of that issue?
A.
Yes.
Q.
If we can just turn to the UK report, which is
REPT.0003.001.0001, this is the select committee's third
report, and it is that aspect of the report that refers to
the welfare of former British child migrants. That is
familiar to you, I take it, what is on the screen?
A.
Yes.
Q.
If we can turn to page 0003, the paragraph numbered 49
on that page, the UK committee expressed the opinion that:
The worst cases of criminal abuse in
Australia appear to have occurred in
Institutions run by agencies of the
Catholic Church, in particular ...
The four institutions the Royal Commission is currently
concerned with. In paragraph 50 there is reference to:
During our visit that is, the committee's visit to Australia we questioned representatives of the
Christian Brothers about allegations of
abuse in their institutions.
Then there is reference to what was told.
the representatives who was questioned?
A.
Yes.
Were you one of
Q.
They told us that the institutions were
regularly inspected by the Child Welfare
Department and by local doctors ...
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Just stopping there, what local doctors visited or
inspected the institutions?
A.
Sorry, I think that would be - the doctor didn't
inspect the institution, he attended there regularly to
treat the boys. That's what I was given to understand.
There was a doctor, whose name I can't recall at the
moment, who I think must have lived in the area, who was
the doctor there who regularly went there over a period of
some years.
Q.
And then just coming down towards the end of that
paragraph:
The Christian Brothers said that they were
not aware of any evidence of paedophile
rings operating in their institutions.
What meaning did you give to the term "paedophile rings"
when you were speaking to the House of Commons in the
1990s?
A.
That brothers were colluding with each other in
committing acts of child abuse.
Q.
Your source of information then was Brother Coldrey's
reports?
A.
Yes, the work he had done. That was the primary basis
for that.
Q.
Having heard the evidence of the 11 men here, is that
still a view you hold, leaving aside the reference to
"rings", but about colluding between brothers in respect of
the abuse of children?
A.
I would have to say I don't know. I would be agnostic
on that question. I mean, I could see it was possible, but
I haven't seen what I would regard as sort of hard evidence
of that.
We have heard references to the fact that abusers
typically operate covertly and hide what they are doing and
offences are committed in private and so on. So that would
be one of the reasons why I would hesitate to conclude, on
what I have seen, that there was collusion.
Q.
If we then continue down that same paragraph, and this
is the committee, they say:
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However, the weight of personal testimony,
contained in the written submissions we
have received and given to us orally,
leaves us in no doubt that there was
widespread and systematic sexual and
physical abuse of the boys at Bindoon, and
at other Christian Brothers establishments.
Do you accept that?
A.
By and large, yes.
Q.
If we can then turn to the submission made to the
Senate Committee Affairs References Committee, which you
referred to earlier, which is CTJH.056.22001.2885, this was
a submission by the Catholic Church's Joint Liaison Group
on Child Migration. Again, you were involved in that
submission?
A.
I was the convener of that group.
Q.
If we can turn to page 2897, the third
paragraph beginning, "It is difficult", there is reference
there to it being difficult to generalise from the distance
in time about the prevalence of abusive behaviour in
institutions that cared for child migrants, and:
There seem to have been differences between
institutions, and from one period to
another, in regard to the overall tone and
style ...
Do you see that?
A.
Yes.
Q.
Again, your source of information was primarily
Brother Coldrey's reports?
A.
Well, in regard to our institutions here, but this is
referring also to quite a variety of other places,
including the Sisters of Mercy; I think some child migrants
were cared for by the Salesians in Tasmania, and so on. So
it is not just about our four institutions.
Q.
No, but your four institutions would have been
significant in terms of the number of children and the
abuses reported?
A.
That's true, yes.
Q.
The next sentence says:
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It seems that these abuses did not come to
the notice of supervising authorities, be
they congregational, diocesan, federal or
state.
Now, in terms of "congregational", what were you referring
to?
A.
Yes, I'm embarrassed by that reference now. I think
what I was - I'm sort of trying to cast my mind back to
when this was put together. I think I was going on the perhaps "impression" is the best word I can use formed from
what Brother Coldrey had given us that there were
complaints - where there were complaints, the executive
acted according to their lights and tried to deal with
them. A lot of the complaints were unsubstantiated. So
I think I would have been having that in mind when I put
those words together. But I think, as I say, I am
embarrassed to read that now, because I think it is not
accurate.
Q.
No. It is certainly the case that the abuses did come
to the notice of the leadership of the Christian Brothers
at the time - the 1920s, 1930s, 1940s, 1950s, 1960s; isn't
that right?
A.
Yes.
Q.
The reference to "diocesan" refers to other than the
Christian Brothers Order who were part of the Catholic
joint submission, I take it?
A.
Yes, well, the fact that various dioceses would have
had some involvement or some responsibility in regard to
the care of child migrants in one form or another. I'm not
sure that there were any institutions that were directly
run by the dioceses, but the dioceses would have been
involved in, you might say, the contractual formal
arrangements for receiving child migrants.
Q.
Can I just finally, in terms of the reports, refer you
to the 2004 report of - I just don't have the title with me
for the moment - the Forgotten Australians report. We only
have chapter 8, and I don't have a reference, I am sorry to
say.
MS FURNESS:
Your Honour, I note the time. While I track
down that report, perhaps we could take the morning tea
adjournment.
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THE CHAIR:
Very well.
adjournment.
We will take the short
SHORT ADJOURNMENT
MS FURNESS:
Q.
Just before the adjournment, brother,
I was attempting to take you to the report of the Community
Affairs References Committee of the Senate known as
"Forgotten Australians", in particular in respect of one
page of that, and that page is REPT.0004.001.0049. Can you
see that?
A.
Yes.
Q.
If we can scroll down to 8.201 and have that on the
screen, reference there from the Senate is to your Order,
and the conclusion is that it is apparent that the
Christian Brothers authorities must have known of illegal
practices. Do you agree with that?
A.
Yes.
Q.
A.
Sorry, that was "yes"?
Yes.
Q.
Thank you. And there is reference there to Dr - who
should probably be Brother - Coldrey. Does he have a PhD?
A.
He does.
Q.
But that is the person we have been referring to as
Brother Coldrey?
A.
Yes.
Q.
... refers to a letter from Brother Conlon
to the Dublin headquarters of the Order
that Brother Keaney had been made aware of
an indecency charge against a particular
Brother.
And then refers to trying to get the brother transferred
from Clontarf and how difficult it was. Do you see that?
A.
Yes.
Q.
That is consistent with a number of the matters that
we have dealt with today and yesterday?
A.
Yes.
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Q.
Can I turn back to your statement, brother. Can
I first deal with the apology, which you deal with at
paragraphs 101 to 102. Do you have that paragraph 101?
Brother Faulkner released the statement and an apology, but
you no doubt would have been involved in its drafting,
I take it?
A.
I was.
Q.
There is reference to:
We have studied the allegations available
to us, and we have made our own independent
inquiries.
Do you see that? Is that a reference to Dr or
Brother Coldrey?
A.
Mainly, yes.
Q.
Anyone other than Brother Coldrey?
A.
No. I mean, we would have, I think, searched the
files and archives we had available here in Perth at our
headquarters for any relevant material, but the other
research was mainly through the agency of Brother Coldrey.
Q.
Just over to the next page, at the top of that page:
While the extent of the abuse appears to
have been exaggerated in some quarters ...
What's that a reference to?
A.
That's a reference to, I think, the nature of some of
the stories that would have been coming to us through the
media particularly, which I think at that time we regarded
as in some cases sensationalised or exaggerated. I think
it's also a reference to something I referred to yesterday,
I think, that the experience of the institutions wasn't
a completely negative one for everyone, and that the
impression given that like sort of the abuse, the
mistreatment, the harshness was universal, as it were, was
not - that sort of impression was an exaggeration in
itself. So yes, that's what those words there are coming
from.
THE CHAIR:
Q.
In what way did you conclude that the
press were exaggerating?
A.
Well, I would have to go back and look at sort of
stories, I suppose, but it seemed to us, I think, that
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sometimes - like the details in stories didn't match up
with what we knew. Some sort of details of stories seemed
to us to be implausible, because when you hear such
stories, inevitably, you have to do some sort of weighing
up of, "Well, how does this fit with what we already
know?", and trying to sort of assess the -Q.
What do you think now?
A.
I think there was some exaggeration going on, but
I think I would be - what's the word - if I was saying this
now, I wouldn't be putting it in those terms there. In
other words, I think compared to what I was aware of then,
at this time in July 1993, the extent of abuse is greater
than what I was aware of then. So there is a defensiveness
in the statement there.
Q.
When you say "extent", you mean the number of abusers
and abused?
A.
Yes, yes.
Q.
And the nature of the abuse?
A.
Not so much the nature of the abuse, I think - perhaps
the number and frequency of acts of abuse.
Q.
You understood back then that the allegations extended
to penetrative sex as well as touching and other forms of
sexual contact?
A.
I did.
MS FURNESS:
Q.
In order to properly form a view of
exaggeration, isn't it the case that one would need to know
with some specificity the numbers and nature of complaints
that had been made throughout time, as it were?
A.
I think what we were basing ourselves on was primarily
the research done by Brother Coldrey, and he had, you might
say, done his own sort of assessment of the plausibility,
the reliability of the various stories and allegations.
Now, rereading, if you remember the paper you referred to
yesterday, I think, about his research methodology - like
rereading that now, you know, what strikes me is that he's
probably too - whatever the word is - too sceptical,
perhaps, or too ready to dismiss allegations and things
that people have said.
So, you know, I think, going back over the evidence I think I was probably, or we, were relying on what
Brother Coldrey was giving us as the results of his
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research. That's not to blame him, but just to say that we
were relying primarily on that, and I think in some
respects what he was giving us was a defensive version of
the situation.
Q.
Do you think that was inevitable given that he was
a member of the Christian Brothers?
A.
No, I don't regard it as inevitable. The reasoning as
to why we have decided to ask him to do the job was that he
wasn't from this province and that he had shown himself to
be quite independently minded in regard to other matters in
the past. That's part of the reason why, as I think I said
yesterday, I was somewhat taken aback when the way he was
approaching the section of the book about sexual abuse
seemed to be somewhat defensive. I was hoping we could do
something a bit more straightforward.
Q.
Perhaps if we can look at paragraph 79 of your
statement on the screen, you refer there to "The Scheme",
Brother Coldrey's book, being published in November 1993,
and then some time after the apology - which I have just
taken you to - was published, Brother Coldrey provided
a manuscript called "Reaping the Whirlwind"; do you see
that?
A.
Yes.
Q.
That was some time after July 1993 but still in 1993;
do you think?
A.
I've been informed, since this statement was
completed, that it was some time in 1994.
Q.
Who informed you of that?
A.
The lawyers, I think, who had been doing research on
the documents.
Q.
So have you yourself seen any document which indicates
that the 1994 date is more accurate?
A.
I don't think so.
Q.
You say in paragraph 80 that the Christian Brothers
were surprised to receive it, as you hadn't asked him to
prepare such a report.
A.
Mmm.
Q.
Is it not the case that your concern, as you expressed
just now and yesterday, that "The Scheme" was underdone, in
terms of the sexual abuse allegations - that this was a way
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of repairing that by producing a separate document with
more detail?
A.
Well, I think a lot of the "Reaping the Whirlwind" was
not about the institutions at all; it was about the
situation more generally across the province. It was
referring to some of the cases we've been looking at this
morning in the chronology. So I don't think it was helping
a great deal in regard to making the treatment of the
institutions situation more frank and more helpful.
Q.
It did describe more abuse of a sexual nature, didn't
it?
A.
Now, I haven't looked at it in detail just very
recently, but my recollection is that it surveyed instances
of abuse or suspicions of abuse or suspicions of other
forms of sexual misconduct by brothers more generally
across the province, and tried to draw conclusions from
that.
Q.
When you say "more generally across the province", not
related to the four institutions?
A.
Yes, that's right.
Q.
But wasn't his job, in terms of "The Scheme", not
limited to the four institutions?
A.
Yes, it was limited to the four institutions.
Q.
Wasn't it the history of the Christian Brothers in
Western Australia?
A.
No. What the - wherever it was we were reading from there was discussion initially about someone doing
a history of the congregation in Western Australia in time
for the Centenary 1994, and the original intention was to
ask him to do that. However, it then transpired that
another brother based here was doing masters studies and
his thesis was going to be a history of our contribution to
education in Western Australia. So we thought there was no
point in getting two people to do much the same job. So
that's when our thoughts turned to asking him to focus on
the institutions.
Q.
I see. Thank you. To turn to a different topic,
brother, CBERSS, the Christian Brothers' Ex-Residents' and
Students' Services, you deal with that beginning at
paragraph 130 of your statement. Have you been here to
hear the evidence of Ms Harries in relation to CBERS?
A.
I heard some but not all of it.
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Q.
You understand, don't you, that some former residents
of these institutions have indicated a reluctance to use
CBERS because of their perception of its closeness to the
Christian Brothers?
A.
Yes.
Q.
What do you say to that?
A.
I mean, I'm disappointed at it. I know from my
experience that there was complete operational independence
of CBERS and, you know, apart from sort of, like,
information provided to us in sort of aggregate or summary
terms, we never received any information about, like, who
the clients were or what their issues were, or anything
like that. So the confidentiality was rigorously observed
by CBERS, and as I say, they were functionally independent,
full stop.
Q.
But it is not just about functional independence and
confidentiality, is it? You would understand that their
understanding or perception, that they are going back to
the very institution that they consider responsible for
their abuse - you understand that?
A.
I can understand that some might have had that
perception. I think my hope was that, in time, people
would be able to see there was - well, that that was not
accurate; there was more to it than that. In fact, they
weren't coming back to us as an institution.
Q.
Well, you were providing the money that they were
accessing.
A.
Correct, but they didn't have to engage with us in any
way at all.
Q.
You don't see that by accepting money from you via
CBERS was engaging with you?
A.
In a very indirect way. I mean, another side of this,
I think, is that some sort of engagement, even if in that
indirect fashion, with the institution that failed them or
abused them could, and often was, I think, a part of
people's healing. So that's looking at it turning around
the other way. Now one -Q.
I'm not suggesting by my questions, brother, that each
and every former resident formed that view. I'm referring
to those that formed that view?
A.
Mmm, that's right. I think it's true that the uptake
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of CBERS' services was slow at first. That's partly
because of the rather fraught sort of context in which it
started its life. Like, we're in the middle of
a litigation and there was a lot of publicity around, and
so on. I think what happened in time was that the men who
came to CBERS found that what they were given was very
professional, very independent, very caring, and I think in
time there was a word of mouth effect that brought many
others along then. You know, my hope would have been, or
was, that the actual experience of the men who went to
CBERS would have overcome reluctance, perceptions or
prejudices.
THE CHAIR:
Q.
Would you call it by the same name today,
if you were doing it again?
A.
That's a good question, your Honour. I'm not sure.
I mean, I would be interested to hear what someone like
Dr Harries would say about that. The presence in the name,
in the title of the service, of "Christian Brothers" is
probably, or was probably, an obstacle for some, and
perhaps, like, on reflection, maybe we should have
continued with the name ISERV or something like that, since
it was anyway a sort of a continuation and consolidation of
what had begun with the ISERV panel.
MS FURNESS:
Q.
Just turning now to paragraph 156 of
your statement, this is in relation to the litigation and,
more particularly, during the course of the litigation, you
refer to the national committee beginning to address the
possibility of settlement and what it might look like?
A.
Yes.
Q.
Who was the national committee that you are referring
to there?
A.
From the beginning of the 1990s, I think - from the
time that new provincials and councils were appointed in
1990, there were regular meetings of the provincials, the
four Australian provincials and sometimes the New Zealand
provincial, to discuss matters of mutual interest.
As questions to do with child abuse became more
prominent, they began to put time aside at their meetings
to deal with that agenda in particular, and that's when
they would have invited some of the legal advisers to come.
At a certain point, in late 1994, they expanded that
meeting - that is, the meeting that was dealing with child
abuse issues - to include deputy provincials. So from
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around that time - that's what I am referring to as the
national committee. It was the group of leaders from
Australia who were looking at the child abuse issues.
I don't know exactly when we started calling it a national
committee. It may have been then or it may have been after
1996, I'm not sure.
Q.
Perhaps if we can have tab X in tender bundle 3 on the
screen. These are your notes, Brother Shanahan,
in March 1996, under the heading "National Committee on
Child Abuse Issues". That's the national committee you are
referring to?
A.
Yes.
Q. February 1996, settlement discussions were at their
most intense, were they not, in the Slater & Gordon
litigation?
A.
Yes.
Q.
And CBERS had already been operating for some time,
had it not?
A.
Twelve months.
Q.
So there is discussion on the first page about
structure and criteria, if we can scroll down, and it is
noted there that "Such services or facilities should be",
firstly (a), and then over the page (d):
Not be spoken of or seen as
"compensation" ...
Just stopping there for the moment, why was that important?
A.
Before I comment on that, could I say one thing?
Q.
Certainly.
A.
I think the structure being spoken of here wasn't
necessarily the structure that was part of the settlement.
I think that what is being spoken of here is the idea of
something that might provide CBERS-type services to any of
the former child migrants or people who had been resident
at Catholic institutions across Australia. So, as I said
at the beginning there, something about CBERS writ large.
Q.
But it was also at the time that the congregation was
considering what -A.
Yes.
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Q.
-- a result or resolution of the litigation might look
like?
A.
Indeed.
Q.
And these discussions, as recorded here, formed part
of that larger discussion; is that right?
A.
Yes.
Q.
So just turning then over to (d), why was it important
that it not be spoken of or seen to be compensation?
A.
I think you referred yesterday to the tension between,
on the one hand, a sort of a services/needs sort of way of
responding, or based way of responding to the needs of the
men, as against compensation. I think we were wanting to
make sure that this - what this was doing was providing
services and meeting the needs of any of the men, or men
and women, if it was the sort of Australia-wide version,
regardless of whether they were alleging abuse or
mistreatment or whatever.
Q.
So this continues - that tension that we referred to
yesterday between the Christian Brothers primarily wanting
to provide a needs-based, services-based service -A.
Yes.
Q.
-- and the former residents and the litigants were
more interested in a compensation-based outcome?
A.
Yes.
Q.
Secondly, there is reference to not being seen to be
an admission of liability. What's that about?
A.
Well, I presume we had in the back of our minds the
fact that there was a settlement coming up and we had not
accepted, in the course of that litigation, that we were
corporately liable for any abuses that had been committed.
So that's what it is referring to.
Q.
In your mind at this time, leaving aside the legal
concerns and legal language of liability, I take it that
you understood that the Christian Brothers were
responsible, in a generalised sense, for the abuse which
you were satisfied had occurred at those institutions?
A.
Yes. I think I used - I'm not sure whether it is in
the apology or somewhere else, but I remember I used the
term that we believed we had a moral responsibility to
these men.
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Q.
Just coming over to paragraph 159 of your statement,
if we can, in this paragraph you are referring to the
balance of the need to pay money in respect of particularly
those institutions, as well as your commitments as trustees
of the welfare of the Christian Brothers members and
schools and other projects. Do you see that?
A.
Yes.
Q.
So were you concerned that all of the resources of the
Christian Brothers not be considered to be available in
respect of these four institutions because, as you speak
of, your other commitments - was that what that was about?
A.
I think the concern was into the future would we be
able to maintain or carry out our responsibility to care
for our own members, as well as continue to ensure the
successful operation of the schools and projects that we
were conducting. So we didn't want - well, we were
anxious, fearful, that the capacity to do those things
might be compromised in the future.
Q.
Another way of looking at the settlement was to look
at the needs of each of those who were harmed and who had
come to you via lawyers or otherwise, and to quantify, to
the extent that is commonly done by courts, that harm in
terms of needs, and to look at what they needed, rather
than what the Christian Brothers could afford. Was that
a way that was considered going forward?
A.
I don't think so.
THE CHAIR:
Q.
What were you conceptualising - don't
misunderstand me, I'm not criticising the words in
paragraph 159, but they are all generalisations. What was
your concept of what the liability might be if you accepted
full responsibility for those who had been damaged?
A.
I think - look, on the one hand, we were trying to put
a lot of effort and resources into what we were seeing as
a pastoral response on a needs-based model, such as
Ms Furness has referred to, so the ISERV panel and CBERS.
That was one important line of our attempt to respond to
the needs of the men and to express the moral
responsibility I referred to.
When it came to this question here, the sum of money,
I have to confess that I personally had, and still have,
difficulty with the concept of compensation and how you
quantify. I know courts do it, and there are rules for
doing it and so on, in the legal system. I am conscious
.06/05/2014 (WA19)
WA2177
A J SHANAHAN (Ms Furness)
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that - you know, I've heard men say things like, "Well,
nothing could compensate me for" blah, blah, blah, what
happened. So going down or following a sort of a
compensation model was something that I was uneasy about.
At the same time, I accepted that the settlement needed to
express, if you like, some sort of recognition of the
seriousness of what had happened to the men and to - yes,
well, to sort of reflect that.
In the end, I think we got it wrong, in terms of the
amount. Like I think the settlement should have been
a more liberal one.
Q.
You still haven't quite helped me to understand what
was in your and your colleagues' minds. You speak in terms
of not wanting to compromise your existing programs and
your capacity to look after the brothers, and that caused
you to respond in a particular way to the prospect of
compensation to those who had been hurt by the brothers
themselves. But why were the two necessarily at odds?
Unless you had some idea of amounts of money in your
mind -A.
Sorry, I didn't quite catch the word there,
your Honour, why were the two necessarily -Q.
A.
Why were the two at odds?
Oh, at odds, yes.
Q.
You have the program of the brothers and the need to
provide for the brothers, but over here you have a class of
people who have been hurt by the brothers.
A.
Mmm.
Q.
Why was it that the interests of the brothers and
their programs would prevail against proper compensation
for those who had been hurt by the brothers?
A.
Mmm. I think we were trying to do some sort of
justice to all three. As I've just indicated, I don't
think we got it right in terms of the settlement sum, but
the fact -Q.
I understand that. But what I'm trying to get you to
address your mind to is what were you thinking about
amounts of money?
A.
I think there were two sort of factors that I can
identify. One was, well, what is a sum that is appropriate
in view of who these men were and what's happened, and so
.06/05/2014 (WA19)
WA2178
A J SHANAHAN (Ms Furness)
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on. The other one, I think, was to do with a fear of the
future - and this is what I think accounts for our being
too defensive in the way the litigation was conducted and
in the way the settlement was reached - a fear that not so
much that this settlement was going to do serious damage to
us as an organisation, but it could then lead to other ways
of litigation. And I think there were fearful scenarios
like that at the back of the mind - maybe the front of the
mind. I think there was fear there about what the future
might hold.
I recall at the time having some unease about the
$5 million, but we were getting strong advice that it
shouldn't go above $5 million, and we accepted that advice.
Now, I think we have to take responsibility for that, that
it was - the figure was not appropriate.
Q.
At the back of this discussion, of course, is an
acceptance of a moral responsibility, as I understand it.
A.
Yes.
Q.
your
that
A.
But you must have discussed between yourselves and
lawyers the legal responsibility of the brothers; is
right?
Well, I presume so, but I don't recall --
Q.
Do you recall now how that was articulated in your
minds?
A.
No, not very clearly. I mean, one thing that is in my
mind was the summary, the executive summary that
Brother Coldrey provided for us came to the conclusion,
which again, looking at it now, I would sort of wonder, is
it sort of too benign or too defensive - he looked at the
way in which the executive had responded over time to
various complaints; that the executive, you know, in most
cases, had taken action and, therefore, there was a sort of
a defensible case. He was suggesting that the executive
was not just idle or indifferent or ignoring the problem.
So that was part of it.
Q.
Well, looking at it today, as we have done, it is
pretty hard to make that claim, isn't it?
A.
I agree.
Q.
But at the time, was the prospect of legal liability
discussed between you in terms of a failure of the
management, as it were, of the organisation?
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WA2179
A J SHANAHAN (Ms Furness)
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A.
I don't recall that, your Honour. I joined this
committee in 1994. The litigation had been going on for
some 12 months at that stage and in a certain sense my
impression or my memory is that our legal strategy or
direction had already been set in a certain direction. So
it was a case of continuing to follow that. I don't recall
talking about the issue that you are referring to in any
detail. I presume - well, "I presume" - it may well have
been talked about by that committee before deputy
provincials like myself became members of it.
Q.
Were you familiar with the concept of mediation back
then?
A.
No.
Q.
Did it occur to any of you that the amount of money
that you were spending with the lawyers was out of
proportion to the amount that you were prepared to offer?
A.
Yes - well, I think we were aware that the whole
exercise was costing a lot of money in legal fees and time
and resources, and I remember one of the thoughts going
through my mind at the time, when we were finally talking
about settlement, was, well, the thing was bogged down this is my perception of how it was going - the thing was
bogged down, it was going to take a long time. The legal
fees were great. Let's settle.
MS FURNESS:
Q.
Can we have paragraph 168 of your
statement on the screen. This is in relation to the
settlement, Brother Shanahan. You understand that part of
the structure of the trust was that Slater & Gordon,
through their lawyers and/or counsel, would have the
responsibility for determining those men who fell within
the most serious category, and you say in paragraph 168
you:
Did not want the claimants to have to go
through the trauma of having to tell their
stories again ...
And you therefore accepted Slater & Gordon to do that.
that the subject of any dissent within the Order?
A.
Not that I recall.
Q.
A.
It was accepted readily, was it?
I think so.
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WA2180
A J SHANAHAN (Ms Furness)
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Q.
You said in response to a question from his Honour
that the firm advice to you was that you shouldn't go above
$5 million. I'm finding the document as we speak, but as
I understood Howard Harrison's evidence and the documents,
the communication, probably to Brother McDonald rather than
you, was that it would be a good result to get out of it
for $5 million, which is quite a different concept to
"shouldn't go above it". Does that help any recollection
you have as to what the lawyers said?
A.
No, not really. He may well have said in his advice,
or did provide in his advice, that idea that, you know,
$5 million would be a good outcome. I do have a memory I'm not sure how reliable it is - that in the final stages
of, you know, sort of finalising the lump sum, that the
concept of, "You shouldn't go above $5 million" was given
as advice.
Q.
Why were you told you shouldn't go above $5 million?
A.
I took it that it was some sort of indicator from
somebody who knew, sort of, figures for legal settlements
and things like that, that a figure higher than that could
encourage other litigation later on and lead to the sort of
outcomes I referred to a moment ago.
Q.
Well, from the point of view of a religious order that
had the information that we have just gone through in
respect of the conduct of brothers at the various
institutions to be concerned that it might attract further
litigation is, I suggest, not a particularly compassionate
view of those who may have legitimate claims to bring.
A.
I can understand that some people would see it that
way, and had we not been doing anything else, I think that
would certainly be the case. We were conscious that we had
been pursuing for some years, and intended to pursue with
vigour, the pastoral line of response through CBERS.
Q.
And you were taking that into account, at least in
your mind -A.
Yes.
Q.
-- in terms of the expenditure of funds.
A.
Yes. Well, we were putting resources into that.
was a response to the needs of the men.
That
Q.
The letter I was referring to is tab I of tender
bundle 3. We might just have that on the screen. This is
indeed a letter to Brother McDonald dated 30 April 1996.
.06/05/2014 (WA19)
WA2181
A J SHANAHAN (Ms Furness)
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If we can just scroll up a little, this is in respect of
Slater & Gordon having indicated that they would recommend
a settlement of $9.5 million. And then, further down, the
last paragraph of that page:
We believe that an overall settlement of
five million dollars involving the dropping
of the cases and the provision of non
financial needs based help would be a very
good outcome for the Order.
Do you see that?
A.
Yes.
Q.
Clearly, there was room for the Order to respond by
saying, "Well, it might be a very good outcome of
$5 million, but $9.5 million would involve these men
individually getting more money."
A.
Mmm-hmm. There certainly was room for that.
Q.
A.
And that did not occur?
Did not occur.
Q.
If it happened today - and this is a difficult
question, I understand - would your attitude to the
litigation and the lawyers conducting it on your behalf be
the same or different?
A.
I think it would be rather different.
Q.
How would it be different?
A.
I have a number of regrets about the whole of this
litigation. One thing would be that I would want to have
made, or would want to make much more vigorous efforts
early in the piece to try to find some non-litigious
outcome. His Honour referred to mediation, and I'm aware
that over the last 20 or more years, maybe, there has been
a significant growth in the area of alternative dispute
resolution. So that would be one thing that - you know,
can we find some other way than slugging it out in court to
do something like this.
The second one would be that we didn't move sooner to
try to get a settlement. And the third regret then was
that when a settlement did come, you know, we were sort of
looking at our own interests more than the gravity of the
offences against the men who were the litigants.
.06/05/2014 (WA19)
WA2182
A J SHANAHAN (Ms Furness)
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Q.
Was there appreciated, in discussions that you were
party to, of the role of the insurer and of ensuring that
you were listening to and taking legal advice so as not to
affect any claim that you might have with CCI?
A.
There was discussion - I remember there was discussion
about the role of the insurer, or the possible role of the
insurers in the settlement. I'm not sure whether that's
what you are referring to, or something else.
Q.
No, something else. Were there discussions that if
you departed from the legal advice you were receiving, it
would in some way affect adversely the insurer's attitude
to the indemnity?
A.
I don't recall that that was ever said or was
a factor.
Q.
Coming back to your statement, you refer to Brother
Faulkner's report -A.
Mmm-hmm.
Q.
-- first of all, starting at paragraph 181, that at
the 1996 general chapter a direction was made that the
Christian Brothers commission a study of child abuse within
its own congregation; do you see that?
A.
Yes.
Q.
Brother Faulkner was selected for that task because of
his significant involvement in the preceding years, and
probably decade, in relation to this area?
A.
Yes.
Q.
You there, in paragraph 184, indicate that it didn't
provide any new insights or radical steps requiring action;
do you see that?
A.
Yes.
Q.
Now, the world has moved on quite a bit since
Brother Faulkner's report in terms of understanding and
knowledge about child sexual abuse and its effects and
impacts, and how it can be carried out; would you agree
with that?
A.
Yes, I'm just - I mean, I'm not - in one sense, I'm
not sure. Like yes, there is more knowledge. I think that
report still has - like, still has a lot of good material
and insights in it. Like, I don't see it as outdated.
Q.
I wasn't suggesting to minimise the importance of
.06/05/2014 (WA19)
WA2183
A J SHANAHAN (Ms Furness)
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Brother Faulkner's report.
A.
Sure.
Q.
Perhaps if we can turn to paragraph 186 of your
statement. There you deal with recruitment and training,
which has changed dramatically compared with the practices
up to the 1960s. You gave some evidence yesterday in
relation to some of his Honour's questions. Perhaps
I might just ask you to expand upon that in relation to how
your recruitment and training has changed and what it is
now?
A.
In regard to recruitment, the practice of taking
people even before they finish secondary school or straight
from secondary school - like, that has long been
discontinued. In other words, there is a recognition that
people need to have some time to just mature and get some
life experience before they make any sort of commitment to
a religious vocation such as ours.
Before they enter a residential training situation,
there is usually a period of extended contact with the
brothers, usually through a particular brother who might
remain in contact with the young person. There might be
a shorter sort of live-in period, a sort of "come and see",
you know, stay with a community for a week or two and just
get a taste of community life. In other words, the whole
process is taken more gradually so that people are able to
get a sense of what they are letting themselves in for,
what this life is about, and do they feel at ease with it,
and so on.
I think I spoke yesterday about the sort of methods
that are used in the residential formation programs
themselves in terms of, like, psychology, particularly, has
contributed significantly, so that as well as the teaching
that people get, whether it is about Christianity, the
Catholic faith, scripture, what is this religious life,
what do the vows mean - they are the sorts of things that
people get taken through - experiences are provided for
them and significant help is provided for people to reflect
on what they are learning and what they are experiencing so
that they can internalise it and personalise it for
themselves.
So they would be some of the things that I am talking
about. The paragraph here also refers to the use of
psychological assessments, which would be typically done
.06/05/2014 (WA19)
WA2184
A J SHANAHAN (Ms Furness)
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before someone entered a novitiate, but at the stage when
they had been in contact with us for some time and seemed
to be seriously interested in going further with this and
becoming part of our congregation.
Q.
There is a reflection in Brother Faulkner's report,
and also some of Brother Coldrey's reports, that the
discipline and regimented environment in which the brothers
worked in the orphanages may have contributed to the abuse
that occurred there. You accept that?
A.
Yes, and I think I was touching on that yesterday when
I talked about the - like the working conditions and the
overcrowding, understaffing, those sorts of things.
Q.
What is done now in boarding schools that are run by
the Christian Brothers in respect of the discipline and
regimented nature of the way the Order conducts itself?
A.
Boarding - the boarding section of a boarding school
would be very differently staffed. Like the convention
back in the day, like pre-19 - well, even into the 1970s,
like I had six years in a boarding school in Adelaide, and
typically you taught during the day and then you had some
duties after hours in supervising, whether it was in the
dining room or supervising in the dormitory after night
study, as students went to bed, and so on.
That's not sort of - well, it probably wasn't a good
idea then. It certainly is not sustainable or viable now.
You are really asking people to do one and a half or two
jobs. So usually the boarding staff are completely
separate from the teaching staff. So the people are not,
sort of, being overstretched and run down.
And the sort of physical facilities that are available
now are much, much better than was ever the case in the
sort of institutions we're talking about here, especially,
but even going back to my days in a boarding school in the
1970s.
I mean, part of that is driven by the market, if you
like, in the sense that if parents are going to send their
children to a boarding school, they will look at the thing
and they want to have good facilities and so on. So if we
want to run a boarding school that is going to be viable,
you have to provide what people expect. They expect
certain levels of care, certain levels of physical
facilities, but also care in terms of the protocols and
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WA2185
A J SHANAHAN (Ms Furness)
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safeguards and so on that are in place.
I spoke earlier on about the fact that typically,
married people, and perhaps even a whole family, might be
involved in living in the boarding house and supervising
it. It is mainly lay people who would be running the
boarding house, not brothers. But, you know, whoever is
actually running the boarding house is going to be working
under the sorts of protocols and procedures that have been
formulated over the last whatever - 10, 15, 20 years.
Q.
Can you tell us, in terms of a boarding school that is
operating now, if a child wished to complain about their
treatment - and for our purposes, sexual abuse - what is in
place in terms of a complaint-handling process and
oversight of it?
A.
With respect, I haven't been living and working in
Australia for the last 11 years, so I don't know whether
I'm going to be very up to date with anything I say.
Q.
A.
If you can't answer it, that's fine, thank you.
No, I'd better not.
THE CHAIR:
Q.
Can you tell me this, brother: the
problems which the Christian Brothers have experienced are,
of course, not unique to the Christian Brothers.
A.
Mmm.
Q.
We haven't yet looked in the detail we will at some of
the other religious orders in Australia. And you spoke of
the changes that have occurred within the
Christian Brothers. Has there been discussion across the
different church organisations about these problems and the
way you should change the management and training and so on
of brothers across the landscape?
A.
I think the answer is yes, your Honour. In regard to
schools, for example, I think that probably the most
important forum for sort of exchange of ideas and so on
would be through the - like through meetings of principals,
through school authorities, through those sorts of
gatherings. In other words, there have been changes at
different levels and the sorts of changes or things that
have been put in place, say, in regard to schools, might
not be exactly the same as other sorts of projects we're
running which are not institutional, in the sense that they
might be relatively small, say, projects trying to support
youth who have dropped out from school or - that sort of
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A J SHANAHAN (Ms Furness)
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thing.
So part of the way we have operated over the last 15
or 20 years would be regular gatherings of, say, principals
or other key staff in a school, like pastoral care staff,
with a view to discussing issues like this.
We have also convened regular meetings of the people
who work in, for example, alternative education projects
for youth around Australia. They would come together
periodically, again to exchange information, ideas, and to
be updated, you might say, on things like protocols and
procedures in regard to child protection.
Q.
What about, though, the recruitment of brothers and
the training of brothers, have you talked to your
colleagues across the landscape about those issues?
A.
Yes, there was - and I presume still is in Australia a national association of what are called vocation
directors, who are the people who are concerned with
recruitment for religious orders. They have State-based
branches which have their own sort of meetings; often they
have a newsletter and they have a national conference each
year. At least that was the situation when I last heard of
it. And things like methods of assessment, the sorts of
pre novitiate programs that are provided would be the sort
of things that they discuss and exchange information about.
Q.
When did those sorts of discussions start, do you
know?
A.
Well, certainly by the 1990s this national association
was having an annual conference, because I remember it
being here in Perth at one stage in the late 1990s,
I think, and probably further back. And - like, personnel
involved in religious formation or seminary formation would
have had their own forums for coming together and
discussing things.
Q.
Was any guidance received from Rome in relation to
these matters?
A.
Yes. There are guidelines that are issued from time
to time about formation that come from the Vatican. They
are fairly broad, but they do underline, for example, the
importance of proper assessment before people are received
into the residential stage of formation; about the
importance of normal, healthy human development as
a foundation for any other formation. So those sorts of
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things are very clearly there in the documents that come
from Rome.
Q.
What sort of documents are we talking about?
A.
There are - I don't know what they are called. Like,
they are not issued, sort of, on an annual basis each year,
or anything, but from time to time the congregation that is
concerned with religious - sorry, "congregation", church
talk - like, the Vatican department that looks after
religious congregations across the world might put out
a statement, or it is more like a discussion paper,
I suppose, or a policy thing, it might run to 20, 30, 40 or
50 pages, giving guidelines and putting forward sort of
important considerations that should be part of the
recruitment and formation methods.
There is another Vatican department, I think, that has
separate oversight for formation of priests in seminaries.
I presume they do the same thing.
Q.
And these communications, are these sent to the
provincial leaders? Is that the way it works?
A.
Yes, they would be disseminated through, like,
province leadership and passed on and, presumably, read and
discussed. But, as I say, they provide fairly broad
guidelines. The way in which they are taken up and applied
in a particular situation is very much the responsibility
of the congregation or the local diocese conducting the
seminary.
Q.
You mean they may not take them up to any particular
degree, or they might -A.
They - yes, that's right. The degree to which they even in some cases, the degree to which they are aware of
these things. I mean, the official church, in terms of
pronouncements from Rome, has been underlining the
importance of what they call the human sciences or
psychology as an important factor in formation. That's
been said for, on and off, over the last nearly 50 years.
But there would be still some religious congregations
around, and maybe some seminaries, that really haven't got
the message.
Q.
Your memory doesn't allow you to retrieve the name of
these - because we will want to look at them, you see.
A.
My most recent experience would be Africa, which
I presume is not within the scope of the inquiry here.
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A J SHANAHAN (Ms Furness)
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Within the Australian context, well -Q.
A.
The label for the messages that come from Rome?
Oh, I could find that out for you.
Q.
Could you? Could someone let us know, because we
would like to see that. Are you able to say when the
changes that you speak of started to occur? When did these
things start to happen, at least in your experience, in
terms of recruitment and training?
A.
Yes, from somewhere in the 1970s, certainly through
the 1980s into the 1990s changes were going on. It was an
evolving sort of situation. But I think probably the late
1970s early 1980s were sort of a key time for a new
mentality, a new set of assumptions.
Q.
And is it right to think that, as is so often the
experience in human institutions, there was resistance to
change?
A.
Yes. I mean, that certainly occurs in some places in
some cases.
MS FURNESS:
further.
THE CHAIR:
MR CUOMO:
THE CHAIR:
Thank you, your Honour.
I have nothing
Now, does anyone else have any questions?
I do, your Honour.
I represent Mr Grant.
Yes.
<EXAMINATION BY MR CUOMO:
MR CUOMO:
Q.
Brother Shanahan, you would agree with me,
would you not, that the Christian Brothers control their
own financial affairs separate from the archdiocese in
which they operate?
A.
Yes.
Q.
And that involves not only the day-to-day financing
but the dealing with the property that is owned by the
trustees nominated by the Christian Brothers?
A.
Yes.
Q.
And you would agree with me, too, that during your
period where you were involved in the governance of the
Order in the province including Western Australia, and in
.06/05/2014 (WA19)
WA2189
A J SHANAHAN (Mr Cuomo)
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your time as provincial, that you dealt with those property
issues as well?
A.
Yes.
Q.
You would agree with me, too, that the
Christian Brothers are rather substantial property owners?
A.
Yes, although - yes, yes.
Q.
We will explore the tenure of those properties briefly
in a moment, but it owns some properties outright and some
subject to some restrictions, doesn't it?
A.
Again, I haven't been in Australia for the last
11 years, so I'm not across what's happened, because
I think, as has been pointed out already, in 2007 the
previous structure with four separate provinces made way
for a new national structure with an Oceania Province.
Now, I haven't been part of that. I am aware that as part
of the changes, though, the school properties that were in
our name are no longer in our name. In other words, the
school properties have been handed over to an educational
authority that administers the schools, or has the
governance of the schools - I think that's the case.
Q.
Let's leave Clontarf aside for the moment. Is that
what happened to Bindoon, Tardun and Castledare?
A.
Tardun I think is no longer ours at all. Bindoon,
I think some of the land was sold and some of it we still
own. Castledare, I don't - is no longer ours either,
I think. It was developed into a retirement facility some
years ago.
Q.
And when you say "some of the land was sold at
Bindoon", some of that was sold to the army, wasn't it, for
their purposes, some years ago?
A.
I believe so. I believe so.
Q.
Are you aware of the way that Bindoon came into the
ownership of the brothers?
A.
Yes, it was a gift of Mrs Catherine Musk.
Q.
A.
And that was in 1936?
So I believe.
Q.
Are you aware that Mrs Musk also made a will, prior to
her death in 1949, giving large sums of money to the
purposes of providing farms for the boys who had been at
Bindoon?
.06/05/2014 (WA19)
WA2190
A J SHANAHAN (Mr Cuomo)
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A.
My understanding of the will was that she stated that
as, you might say - I'm not sure whether the wording is
correct, but like a primary purpose, but the wording also
said, you know "and/or other sorts of purposes" for the use
of the funds. So it wasn't exclusively, as I understood
it - as I read the will and according to the advice I had
at the time - it wasn't exclusively and solely for settling
boys on land.
Q.
So given that you say that you had advice at the time,
you presumably explored the issues regarding the
disposition of those funds as you were dealing with them as
provincial or otherwise concerned in the governance of the
Order?
A.
I did. Well, I took advice and looked at the question
of the Musk estate and tried to get my head around it as
best I could. And I tried to move towards some way of
utilising the remaining funds in the estate in a way that
was consistent with the intentions of Mrs Musk. But that
project wasn't completed during my six years in office and
I handed it on to Brother Ryan.
Q.
Are you aware that in 2005 an action was commenced in
the Supreme Court of Western Australia by the trustees of
the Order and six former principals of Bindoon to be
relieved of the consequences of their breach of that trust?
A.
I am only aware through casual conversation in the
last week that there was some court action. I don't know
the details of it.
Q.
Did you canvass the possible liability of the Brothers
for the breach of that trust when you were dealing with it,
when you were provincial?
A.
Not as such. I think we were trying to look at, you
know, had the uses to which the funds been put - were they
consistent with the other intentions stated by Mrs Musk.
I'm not sure what the legal sort of advice was. My best
recollection is that some of the use of the money clearly
had been consistent with that, but some probably hadn't,
and that the terms of the will had perhaps been violated,
albeit unintentionally.
Q.
What were the uses that you viewed may not have been
consistent with that trust?
A.
I would need to look at - you know, like off the top
of my head, I couldn't say, I'm sorry.
.06/05/2014 (WA19)
WA2191
A J SHANAHAN (Mr Cuomo)
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Q.
You have heard Mr Grant's evidence last week regarding
his treatment?
A.
I did.
Q.
And you heard his evidence that he was sexually
assaulted by a number of different brothers?
A.
Yes, I heard that.
Q.
And that he was assaulted by two priests as well from
New Norcia?
A.
Mmm.
Q.
And you heard his evidence that he was badly affected
in later life psychologically by these assaults?
A.
Yes.
Q.
Other witnesses have given stories that are remarkably
similar, haven't they?
A.
Yes.
Q.
The witness prior to Mr Grant gave evidence that he
had been raped by brothers; do you recall that?
A.
I mean, I recall that sort of offence being reported.
I don't recall whether it was immediately before Mr Grant,
but I accept what you are saying.
Q.
A.
It is not an uncommon story, is it?
No.
Q.
When you looked at the settlement in 1996, did you
conceive that people who had been through the experience
that Mr Grant had gone through, and the other witnesses,
would be compensated $2 ,000?
A.
The $2,000 was never meant to be compensation. It was
seen as a reimbursement of costs that people had sustained
through the two or three years of their involvement in the
legal action.
Q.
Did you see any justice in that outcome then, in 1996?
A.
Well, there was another portion of the settlement that
provided for direct cash payments to people who had been the more serious cases of abuse. I think there were some
30, 45 or 50 - I've forgotten the exact number of men who
received direct cash payments.
Q.
When you looked at that structure, that a very limited
number of men would be receiving larger cash payments and
.06/05/2014 (WA19)
WA2192
A J SHANAHAN (Mr Cuomo)
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the vast bulk of claimants would be receiving that small,
perhaps nominal, $2,000, did you not think that people
would be left ill compensated as a result of that scheme?
A.
No, I didn't think that at the time. I was aware, as
I said before, that we were providing other avenues for
people to have their needs met.
Q.
Mr Grant talked about the scheme essentially at
Bindoon where he received little education and he spent
most of his time on either farm or construction duties, and
I think you have acknowledged in your testimony, haven't
you, that that was the regime, as you understood it, in
place at the time?
A.
Yes.
Q.
And indeed, these institutions - Tardun, Castledare,
Bindoon and Clontarf - were, to a very substantial extent,
built by the labour of the inmates of the institutions?
A.
I'm not sure - I think that statement is true of
Bindoon. I couldn't say that it was true of the others.
I'm not denying it, I'm simply saying that it is some years
since I have been looking at the histories or anything like
that. Offhand I couldn't say yea or nay to that
proposition. It may be true.
Q.
And, indeed, this construction labour was forced
labour, in that the inmates were not given the choice of
whether to do it or not?
A.
That would be true, I think.
Q.
Have you ever considered that people who made such an
unpaid contribution to the development of these properties
may have acquired an interest in those properties as
a result of that?
A.
I'm aware that that view is held by some people.
Q.
Are you aware that such a trust is known to the law as
a constructive trust?
A.
No, I'm sorry, I've not heard that term before.
Q.
And have you sought any legal advice in relation to
liabilities on those sorts of bases?
A.
No. No. I'm speaking - I need to make clear, I am
speaking only up to 2002.
Q.
A.
And I am only asking in relation to that period.
Yes.
.06/05/2014 (WA19)
WA2193
A J SHANAHAN (Mr Cuomo)
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Q.
Brother, in the period up to that settlement of the
litigation, was it ever considered by the Order that they
might sell those properties that they owned and devote
those proceeds to the welfare of the former inmates?
A.
I don't recollect that we had any sort of serious or
sustained discussion about that possibility.
Q.
And it is true that if the order had adopted that
course of action, you would have had somewhat more
resources than the resources that you ultimately applied to
the settlement? You would have paid somewhat more than the
$$5 million -A.
I am sorry, I lost the thread of your question.
Q.
If you had sold the properties and devoted those
proceeds, the $$5 million could have been greatly
increased?
A.
Yes, that's correct. One of the views we took during
all of this - and I think we still hold it - is that
although we are the legal owners of school property, it's
not an asset that should be realisable by us. We took the
view that you just can't close a functioning school and
send the children elsewhere and, you know, turn that asset
into funds for us to use. So in our discussions about what
might or might not be done in regard to the settlement or
CBERS or anything else, we effectively put the school
properties to one side.
Q.
But you agree with me, you never considered the
considerations that these men, as boys, had made to the
construction of them?
A.
Not in the terms that you are putting it there.
Q.
A few other matters, brother. Was there
consideration, while you were a provincial or concerned
with the governance, regarding the interment of
Brother Keaney at Bindoon?
A.
No.
Q.
Had representations been made to you to move
Brother Keaney from where he was interred at Bindoon?
A.
My recollection is that at the time that I was
involved in province administration, the chief bone of
contention was the statue, and that was eventually resolved
in two steps when the statue was firstly moved to
a less-prominent position, and then after it was
.06/05/2014 (WA19)
WA2194
A J SHANAHAN (Mr Cuomo)
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vandalised, it was removed altogether. It is only more
recently that I'm aware of having heard about people being
unhappy about him being buried there. I know from casual
conversation with other brothers that some of the brothers
who were around in Western Australia in 1954 were not at
all comfortable with the idea of him being buried there, as
opposed to being interred, as every other brother was, at
Karrakatta, and they weren't comfortable with the idea of
a statue, either. So I'm aware that, as I say, the idea of
him being buried there was not something that everybody was
comfortable with, but as an issue that people are unhappy
about, it's only more recently that I've become aware of
that.
Q.
Was it ever raised with you that the naming of the
swimming pool at Bindoon in memorial to Brother Doyle was
also causing some anguish?
A.
I don't recall it - here and now I can't remember
that.
MR CUOMO:
THE CHAIR:
I have no further questions.
We will take the luncheon adjournment.
LUNCHEON ADJOURNMENT
.06/05/2014 (WA19)
WA2195
A J SHANAHAN (Mr Cuomo)
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UPON RESUMPTION:
<EXAMINATION BY MS NEEDHAM:
MS NEEDHAM: Q. Brother Shanahan, you were asked some
questions about your appointment to the executive council
in 1989, first as a casual vacancy and then as deputy
province leader in 1990. At that point, it's the case,
isn't it, that each of the institutions the subject of this
hearing had ceased to operate as a residential institution?
A.
As residential childcare institutions. Two of them
were boarding schools - agricultural boarding schools.
Q.
I understand that Bindoon, at least, is a
co-educational boarding school?
A.
That's correct.
Q.
Was Tardun?
A.
Tardun was - well, not at that stage co-educational,
but it was a boarding school focusing on agriculture.
Q.
But none of them were involved in the kind of
institutional residential care -A.
No.
Q.
A.
-- with which this Commission is interested?
That's correct.
Q.
You were also asked some questions on the rules which
are set out in paragraph 29 of your statement. On looking
at those rules again yesterday, did you come to a
realisation that the first set of rules, the 1947 rules,
were in fact not the correct set of rules?
A.
I became aware yesterday that there was some confusion
about the 1947 and 1962 and which were our rules and which
were the rules of what in Australia we would normally refer
to as the De Le Salle Brothers, brothers of the Christian
schools, and I think there's confusion about one of them.
Q.
are,
that
A.
The rules set out in subparagraph (a) of paragraph 29
in fact, the rules of the De Le Salle Brothers; is
correct?
I believe so.
Q.
But it's the case isn't it that they are of similar
effect to the rules of the Christian Brothers?
A.
Yes, I believe that.
.06/05/2014 (WA19)
WA2196
A J SHANAHAN (Ms Needham)
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Q.
And the rules of the Brothers of the Christian Schools
of Ireland in subparagraph (b) are the correct rules from
1962?
A.
Correct.
Q.
You would be surprised if there were any different
effect to the previous rules?
A.
I would expect that what's here for 1962 would
substantially be in continuity with what went before.
Q.
You speak in your statement from paragraph 42 on about
your becoming aware some time in the late 1980s of the
difficulties faced by the former child migrants. Can you
tell the Commission when you personally first heard of
stories of abuse in the four institutions?
A.
No, I'm not absolutely sure, is the short answer.
I think it was probably through conversations with my
predecessor, Brother Faulkner.
I know that during 1989, particularly around August
or September, he was devoting a lot of time to meetings
with former child migrants and he - like, he would talk
about the meetings and what he was discovering about the
former child migrants and their stories and needs. So in
some general terms I was getting a sense of what was being
discovered or what he was discovering at that point.
Q.
Was what he was discovering and passing on to you a
range of complaints from the former child migrants?
A.
Yes, very much so.
Q.
What was that range of complaints, as you recall it?
A.
Well, the most prominent was, I think, to do with the
fact of child migration and all that followed from that the separation from family, the need that many men
discovered in middle life to look for family connections.
So all of that was part of it. But then there were other
things. There were stories of the tough times in terms of
the work that they had to do, or the food, lack of
education, the things that we've heard about here physical harshness, physical abuse, and somewhere in there
there was sexual abuse as well, but I have to say I don't
recall exactly how prominent that aspect of it was. It may
be that at that time, in the situation where
Brother Faulkner was meeting some of these men, that
perhaps there wasn't sufficient trust for those stories to
.06/05/2014 (WA19)
WA2197
A J SHANAHAN (Ms Needham)
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come out fully at that point. I don't recall the sexual
abuse element being so prominent or so central at that
point.
Q.
But you're not saying that that is indicative of the
level of sexual abuse at that time?
A.
No.
Q.
You were asked some questions relating to the
understanding of the Christian Brothers as to we might call
relative responsibilities for the difficulties suffered by
child migrants.
A.
Yes.
Q.
And you said that you and other province leaders at
the time were of the view that other parties had some
involvement in responsibility for generally the wide range
of difficulties which those child migrants suffered. Are
you aware whether the Australian Christian Brothers were
involved at the UK end in the child migrant program?
A.
Not - if I can say - corporately or congregationally.
The sort of historical waters are muddied a little bit by
the fact that Brother Conlon in about 1936, I think, was in
the UK helping to negotiate the arrangements for the first
batch of child migrants who came here in 1938, I believe.
He was there on behalf of the - I think a committee of the
Australian Catholic Bishops. So he wasn't there
representing the Christian Brothers as a congregation. So
the congregation as such wasn't involved in arranging child
migration.
THE CHAIR:
Q.
I think that suggests that the wider
church was; is that right?
A.
Yes.
Q.
Can you tell me what you know about that? What role
was the church playing in developing a migration program?
A.
I think there was interest on the part of the wider
church in child migration. I think it was partly related
to wanting to boost the Catholic population of this
country.
My memory - and I'd have to check it from
Brother Coldrey's book, but my memory - is that the Bishops
Conference, the Catholic Bishops Conference in Australia or
a committee of it, was looking into child migration and
were obviously having some communication or contact with
.06/05/2014 (WA19)
WA2198
A J SHANAHAN (Ms Needham)
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the authorities in Britain - would be both the British
Government, or the appropriate welfare authorities, and
probably the Catholic Church authorities in the UK also,
because the children we received came from Catholic-run
institutions in the UK.
Q.
So that you're familiar with the evidence we've had
from some residents - not from England but from Malta about the encouragement of the local Catholic priest to
send children to Australia. That would be consistent with
what the church was actively doing at the time; is that
right?
A.
That came a bit later in the postwar era.
Q.
Did it?
A.
Yes. What I was talking about in regard to
Brother Conlon was pre-World War II. There was a first
batch of child migrants who came, and I think who mostly
went to Tardun, in 1938.
Q.
After the war, were the Brothers involved in directly
encouraging the migration of children, or was it still the
church?
A.
Not that I'm aware. I think the encouragement or
enthusiasm for it came from several directions. One was
the policies of the Federal Government under the then
Immigration Minister Calwell. The Catholic Church, through
the relevant committee of the Bishops Conference, I think,
was also willing to resume what had begun pre war and, you
know, whatever the appropriate arrangements were made. As
I think I've already stated, the actual receiving of the
children here into the homes run by ourselves, the Sisters
of Nazareth and the Mercy Sisters, that happened under a
formal arrangement between the Federal Government, I think,
the State Government, the Archbishop of Perth and the Abbot
of New Norcia.
MS NEEDHAM:
Q.
Between 1989 and 1993 - and I'll ask you
to think about the period before the Christian Brothers
became aware of the litigation filed in Sydney on 31 August
1993 - is it the case that the stories coming forward to
Brother Faulkner and then later yourself, when you were on
the executive of the provincial council - did those stories
help inform the Christian Brothers as to the kind of help
that these men needed?
A.
Yes, I think - the initial responses, sort of
initially ad hoc and then later becoming somewhat more
.06/05/2014 (WA19)
WA2199
A J SHANAHAN (Ms Needham)
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systematised, were very much in response to what we were
hearing from the men and women we were in contact with.
Initially that was through personal contact, it was through
groups like the Child Migrant Friendship Society, and then
I think a later breakaway group from them called the
Children of Catholic Institutions, so that was the initial
source of information and awareness.
That changed a bit when VOICES came on the scene,
because they were focusing much more on the abuse issues
particularly, and some other things. So there was a
whole - well, a different presentation of the stories,
I suppose you'd say, with a different emphasis at that
point.
Q.
In paragraph 49 of your statement you set out a number
of steps taken by the Christian Brothers, including, as you
said, assisting the Child Migrant Friendship Society,
I think with payment of rent; is that right?
A.
That's correct.
Q.
Was that in the part of the movement from individual
help to men who approached you on an ad hoc basis to a more
systemic approach?
A.
I think - a lot of this is Brother Faulkner, and it's
a matter of regret that he's not able, I think, to give his
own testimony at this Royal Commission, because so as far
as we achieved anything in the responses we made, I think a
lot of it is due to the approach he took.
But clearly with the Child Migrant Friendship Society,
there was a self-help group and he thought that was
something to be encouraged and supported. So the practical
assistance we were able to give, in terms of paying the
rent for their office and things like that, was just an
immediate, obvious thing that we could do to try to support
what they were trying to do for each other.
Q.
You also speak in your statement of provision of
funding assistance for family tracing services?
A.
Yes.
Q.
Was that something that was being provided in the
period prior to 31 August 1993?
A.
Can I clarify the question? Was that something that
was being provided, what, by anyone, do you mean?
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Q.
No, by the Christian Brothers?
A.
Yes, I believe so. The tracing - like a lot of it had
to be done at the UK end, obviously, and so you needed
someone on the ground there who could visit institutions,
check the records, and then look into trying to make
contacts with family members, where they were located, and
then prepare the way for family reunion if the former child
migrant came. So someone needed to spend time doing that
at the UK end, and we were supporting, I think he was, a
full-time search worker for some years there who worked
under the supervision of what I think was the Catholic
Child Welfare Council of the UK which I think was an
umbrella body for Catholic welfare agencies in the UK.
Q.
Again was that part of a change from individual,
ad hoc help to a more systemic, general level of help in
that period?
A.
Well, yes, it was a step insofar as there was someone
there who could help anyone with their search. It wasn't
just a matter of trying to help this individual and that
individual. Now there was a service there that anyone
could take advantage of.
Q.
There was also a trust fund at this point to provide
child migrants with financial assistance to go back to the
UK to meet family members. Firstly, was that only the UK,
or did it include Malta?
A.
I think it would have included Malta, but I'm not sure
whether the - to what extent the Maltese former child
migrants were part of the scene at this stage, I'm not
quite sure. But there was no exclusion of the Maltese.
Q.
That travel assistance was provided at first by
Brother Faulkner on an ad hoc basis to persons who
approached him?
A.
As far as I understand, yes. Often those people
I think would be referred by the person working in the
Catholic Migrant Centre, which was the office in the
Catholic welfare services here in Perth that dealt with
migration-related issues and there was a woman there in the
early 90s, Angela Ebert, and she was succeeded by
Sister Tania. They were the ones who would receive
inquiries from former child migrants about whatever records
were held there. Because any records that came, as far as
I understand, were held there, not by the actual
institutions such as we conducted. So they would go to
find out which institution they'd come from in Britain,
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dates and so on, whatever details might be there, to then
be able to send that information to the UK for further
tracing.
So if it came to the point where they were wanting to
travel, I think she would refer them or contact
Brother Faulkner or refer them to Brother Faulkner.
Q.
The fourth area which you discuss between 1989 and
1993 is the facilitation of access to counselling services?
A.
Yes.
Q.
Are you aware when it became clear to Brother Faulkner
that counselling was going to be something these men
needed?
A.
No, I couldn't say when. I think in the earlier days,
the counselling would have been mainly, if not exclusively,
concerned with helping people with the issues around
migration, around the loss of family, around perhaps going
back to make a trip to meet a biological mother or other
relatives, because those sorts of things had a deep
personal significance and, you know, evoked very deep and
personal responses in the men and women who were doing that
family tracing. So counselling support was pretty
essential.
Q.
In that period before the litigation started, how were
men referred to counselling services?
A.
Again I'm suspecting it's through the agency of the
Catholic Migrant Centre, but I couldn't give you any more
detail than that, I think.
Q.
Again that was Brother Faulkner, the then leader of
the province?
A.
I think, yes, he would have had the primary role in
okaying things and making sure funds were provided and so
on.
Q.
In paragraph 66 of your statement you refer to
Brother Faulkner's memo proposing the establishment of a
trust fund, and he envisaged that the fund would provide
travel assistance, counselling services and assistance with
family searches.
I think you set out - and there will be tendered documents which demonstrate the movement of
Brother Faulkner through that year to the finalisation of
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an idea for a trust fund. Did he discuss with you the
genesis of that idea of a trust fund?
A.
Yes. I don't have, like, a clear recollection of
specific conversations, but the idea of having a fund that
would cover these things and could be sort of administered
independently was sort of surfacing there and was being
kicked around in various forms through the second half of
1992 into 1993, as reflected in those three documents that
are mentioned there, or referred to there.
Q.
I think on 14 June 1993 approval was given for urgent
funding to support a child migrant support services at
Centacare?
A.
That was something independent of the idea of a fund.
I think it was just that with the - the archdiocese had run
out of money to fund the service, or at least to fund the
extra time needed to deal with the inquiries coming, and so
Brother Faulkner provided, or we provided, the funding for
that service to continue, as needed.
Q.
And Centacare is the -A.
Centacare is the archdiocesan Catholic welfare
organisation.
Q.
You mentioned VOICES becoming a presence on the scene,
as you described it.
A.
Yes.
Q.
You had some contact with Gordon Grant, I think, or
Brother Faulkner did?
A.
I think Brother Faulkner had personal contact with
Gordon in various ways, because I think Gordon was involved
with the Child Migrant Friendship Society, at least for
some time. I think there is correspondence and notes that
indicate that Brother Faulkner had a personal contact with
Gordon that predated the formation of VOICES by a couple of
years.
Q.
Did Mr Grant's concern with migrant men living rough
in Perth play into some of the thinking at the
Christian Brothers provincial level as to the kind of needs
that the former child migrants had?
A.
Yeah. I don't want to overstate that, but I think
that was one of the influences on us perhaps taking a
strong focus on immediate needs, like - and that was sort
of something that Gordon expressed I think, the sense that
something needed to be done now for these men, because of
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the situation they were in.
Q.
In 1993 - and I'm looking at paragraph 68 of your
statement - a Travel Assistance Fund was established, and
the administration of that fund was then transferred to
ISERV in November 1993?
A.
Yes.
Q.
How did the Travel Assistance Fund operate before it
was transferred to ISERV?
A.
Again, the short answer is I don't have the details.
I think it was probably - most of the arrangements and
administration, and so on, was done through either Angela
Ebert or Sister Tania for the Catholic Migrant Centre.
Q.
How did the idea of ISERV begin to come into the
Christian Brothers provincial level thinking as at the
beginning of 1993?
A.
As I've said a number of times, the situation through
1991, through 1992 and especially into 1993 was becoming
more intense, more fraught in regard to public awareness of
the issues, allegations of abuse, and pressure on the
Christian Brothers, "What are you going to do?", and so on.
We were having some meetings with the VOICES executive. At
a certain point myself and another member of our council,
Brother John Baldwin, started attending those meetings with
Brother Faulkner. It's one of the regrets that I have that
those meetings ended up being fruitless, because, you know,
if we were ever going to find, how would you say, a sort of
non-confrontational way forward, it would have been through
some sort of negotiation or dialogue between ourselves and
VOICES. Anyway, that didn't work and the meetings broke
down.
So coming up in the early part of 1993 we were
discussing, okay, what are we going to do, where do we go
from here? And I'm not sure exactly what were the steps in
the evolution of it, but we felt that the first thing we
had to do was to admit that there had been abuse and
apologise.
Q.
A.
That apology was given in July 1993?
Correct.
Q.
A.
Were you instrumental in the drafting that apology?
I was involved in that, yes.
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Q.
Is it the case that by the time that that acceptance
of the abuse, or at least what you knew of the abuse at
that point, had given rise to the apology in 1993, you had
no knowledge of the imminence of the litigation to be filed
in New South Wales?
A.
I didn't, no. I didn't.
Q.
So that apology was given with no overt thought as to
the effect it might have on the litigation - on any
litigation?
A.
No, I wasn't aware of any litigation at that point, as
far as I know. Yes, our concern was to try to be
proactive, like what we were going to do rather than
sitting back waiting for I don't know what to happen. So
the apology was a first step and then, as the apology
itself says, words without any actions to follow up aren't
worth very much, so our next concern then was, well, where
do we go from here in terms of action, and the idea of
having a panel of independent expert people to listen to
the men, their complaints, and to make recommendations
about what was needed - that's where that idea came from.
That panel is what goes under the acronym of "ISERV".
Q.
At about the same time as the Christian Brothers were
working on the apology, were you also working on setting up
the help line?
A.
I don't remember the exact chronology of that. I
don't know whether the idea of a help line was already
being worked on or whether that came after the apology.
Q.
Again, was that something that was linked to the
litigation in any way?
A.
I don't think so, because it predated it as far as
I know.
Q.
And it continued, did it not, until it effectively
morphed into ISERV and then later CBERS?
A.
I think the idea of a help line was one that we got
from St Patrick's Province in Melbourne who had employed or
set up a structure like that that had been very helpful.
So we felt it was something we could do or should do, too.
I then became, I think, one way in which the panel was able
to gather data.
Q.
You were asked some questions about the development of
CBERS, and I don't want to go over old ground, but his
Honour asked you some questions about the perception of
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independence in relation to CBERS.
Do you recall there being a drop-off in the number of
people coming to CBERS because of an announcement by
Slater & Gordon for VOICES?
A.
I'm not sure that the number dropped in the sense that
it suddenly declined. My impression or my memory was that
the numbers were slow because of - well, possibly because
of the warnings that had been put out by Slater & Gordon
and VOICES.
Q.
Is an example of that warning appendix 1 to the ISERV
interim report, do you recall?
A.
If that's the letter from Slater & Gordon - is it?
Q.
That's all right, brother, I'll move on. There was
never any restriction, was there, on people who could
access CBERS based on whether they were part of the
litigation or not?
A.
No.
Q.
Before the litigation, Brother Coldrey was
commissioned to write the book, "The Scheme"?
A.
Yes.
Q.
Do you recall being part of a discussion in 1992 as to
the criteria for the treatment of sexual abuse in
Brother Coldrey's book?
A.
Yes.
Q.
Is the substance of that discussion set out in
paragraph 76 of your statement?
A.
Yes.
Q.
If you could be shown tab 35 of the tender bundle,
page 2, which is CTJH.056.20001.3502, and the minute of
that meeting should come up on the screen, I hope. At
1.2.2, at page 2, is that the notes of the actual
discussion which is summarised in paragraph 76?
A.
No, they are points that we were considering in
preparation for the meeting that we scheduled to have with
Brother Coldrey a week or two later. So these were the
things that we wanted to, as it were, check out or raise
with him in the approach taken to the question of sexual
abuse.
Q.
Was part of the approach to Brother Coldrey a desire
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on the part of the provincial leadership to know more about
what had happened at these institutions?
A.
Not so much for us to know more, although that was
always going to be helpful. I think - I'll speak for
myself, because that's what I can remember more clearly I, and I think we, wanted a franker treatment of the
phenomenon; at least, you might say, the dimensions of the
phenomenon as he was discovering it. Like, we just felt we
had to try to get whatever truth we had discovered out
there in the public domain, and as I think I've already
said, the draft of this particular part of the book that
was given to us was disappointing to me in regard to that
question of, you know, being more forthcoming and frank
about, like, numbers of abusers, numbers of repeat abusers
and some sort of sense of the extent of what happened.
I don't recall whether we had another meeting
subsequent to that, but the final text of the chapter,
I think, was somewhat improved, but still left me not very
satisfied, or somewhat dissatisfied.
Q.
You were asked some questions about when you received
"Reaping the Whirlwind". You're aware, are you not, that
the title of "Reaping the Whirlwind" refers to the date
range 1920 to 1994?
A.
Sorry, it refers to what?
Q.
A.
The date range 1920 to 1994?
The document, yes.
Q.
Does that give you any indication about when that
document might have been received by the
Christian Brothers?
A.
I think it was during 1994, but I'm not quite sure at
what point during the year.
Q.
You gave some evidence talking about the varying
experiences of the men who had attended the institutions as
boys.
A.
Yes.
Q.
Both child migrants and persons who were not child
migrants. Can you give the Commissioners some idea of how
you received other stories, in particular, for example,
from "old boys" associations and the like, of persons who
at least didn't express to you that they were abused?
A.
A number of brothers had their own sort of - what's
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the word? - contacts and acquaintances with former
students. That happens anywhere. You know, it's not
uncommon to retain some sort of contact with former
students. That was the case with some of the brothers who
had worked in the institutions; they were still in touch
with some of the former residents.
Brother Faulkner had got to know quite a number of the
men and women, and in the course of time I met some of them
as well. So you talk to people and chat; you know, people
start to mention things. So informally you start to get
some sort of sense of what that person's experience was
like.
The Tardun - there was a Tardun Old Boys Association,
which did have, and still has, I think, twice-yearly family
weekends, to which they routinely invite brothers whom they
know, whom the men know - brothers who were there at Tardun
in those days; in many cases former brothers, men who were
there as brothers at the time but later left the
congregation; and they would also invite people like
Brother Faulkner and myself and other members of the
current provincial council. So at those meetings, too,
you'd meet people and get some sort of sense of what life
had been like for them.
From time to time we might get contact from a former
student, or students, who were concerned about another
former student with whom we were not in direct personal
contact, that he was running into some sort of crisis and
they perhaps were aware he'd had a bad time at the
institution and this had happened and that had happened,
his marriage had broken down, and wanting to know if we
could provide some particular sort of assistance. So there
was those sorts of informal and time-to-time sorts of
contacts as well.
That's not to say that everybody we met socially or
through things like the Tardun Old Boys Association, you
know, had had a 100 per cent happy experience. Some of
them would talk about being belted or things like that.
I guess most of them were not people who were very
bitter and very angry towards the brothers or they wouldn't
have been there. I understood that. But there were men
there who had had a range of experiences, but overall the
sense was that they remembered their times there together
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at the institution with a certain amount of fondness; they
were grateful for the care that they'd got and they were
happy to maintain the connection with the
Christian Brothers.
Q.
You're aware, of course, that that's not the universal
experience, but it is one of the experiences that you
received, along with the other more distressing
experiences.
A.
Sure.
Q.
During the litigation period, which was August 1993 to
mid-1996, the setting up and development of CBERS took
place?
A.
Well, from the latter part of 1993 the ISERV panel was
in place. It went about its work through the next year.
I think we got an interim report in March and a final
report a bit later in the year. Their basic recommendation
in their final report was that the services that had begun
or were operating under ISERV should be, as it were,
consolidated and continued, and we agreed to that. And
I think on the advice of Jane Brazier, the person chairing
that panel, we approached Marie Harries to be the chair of
a management committee and then, with her assistance,
recruited some others to be part of the management
committee and the service got going under her direction.
So that was in late 1994 going into the start of 1995.
Q.
That process was, as I think you've already given
evidence, separate and distinct from the response of the
Christian Brothers in relation to the litigation?
A.
Yes. Like, there was a determination, I think, that
whatever was going to happen with the litigation, we were
going to push on with this, because we believed in it.
Q.
During the litigation, there was a suggestion by the
solicitors for the 240-odd plaintiffs that the setting up
of what later became the West Australian Institutions
Reconciliation Trust be restricted - sorry, that the
actions of the Christian Brothers be restricted outside the
operation of the trust and outside the operation of CBERS
to men who were settling in the Slater & Gordon
proceedings. It's a very complex question. Do you
understand it?
A.
I think I do.
Q.
And there was a suggestion that, as part of the
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settlement, the Christian Brothers restrict any payments
that they made, apart from CBERS and during the trust?
A.
For the next couple of years I think.
Q.
A.
For three years?
Something like that, yes.
Q.
Do you recall that suggestion being brought to the
provincial leadership?
A.
I recall the suggestion, yes, being raised and being
brought to us.
Q.
It didn't find its way into the eventual settlement.
How did that come about?
A.
Well, it just seemed unreasonable; that if people
needed help, whether they had been involved in the
settlement or not, and there was an opportunity to in some
way respond to them or deal with them, then we would take
that.
Q.
Skipping forward
trust, from paragraph
up of the trust. You
be some unused funds,
that?
A.
Yes.
a few years to the winding up of the
170 onwards you deal with the winding
say that by 30 June 1999 there would
around $700,000-plus; do you recall
Q.
Was there some discussion at provincial council level
as to how those excess funds should be dealt with?
A.
There was. I think there were a number of options
that were put to us, I think, from the trustees. It became
fairly clear cut in my mind as to how we should proceed in
that situation.
Q.
One of the options under the trust deed was for the
excess funds to be returned to the founder, that being the
Christian Brothers?
A.
That's correct.
Q.
Was that ever put forward by you as an option?
A.
No. We just thought that was ridiculous, or would
have been ridiculous.
Q.
A.
came
us.
Was another proposal to pay the excess funds to CBERS?
I'm not sure where that came from. It sort of somehow
up in some discussion and was very quickly rejected by
I don't think Maria Harries wanted to know anything
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about it. Again, it would have conveyed all sorts of wrong
messages and, you know, sort of been - well, it would have
been unjust, I think.
Q.
Just before I go to how the surplus funds were dealt
with, if you look at paragraph 171 of your statement on
page 41, you'll see there the list of kinds of expenditure
which had been made during the life of the trust?
A.
Yes.
Q.
They include emergency relief, housing and
accommodation, rehabilitation for alcohol and drug
dependency, various kinds of psychological therapy,
reimbursement of past expenses and therapy expenses,
employment and establishment of businesses. I'm
summarising those and not putting them all in, but is that
consistent with the kinds of objects which you wished a
trust fund to achieve when you were considering it back in
1996?
A.
Yes. As we've touched on a number of times during the
course of my evidence, we were focusing on what you might
call a needs-based model. The word that I was often using
at the time was "reparation", that whatever the funds or
the service, or whatever it was, was a way of helping
people to repair some of the damage and move on with their
life. So those things there I think were consistent with
that.
Q.
When the time came for the end of the trust, the final
distribution was determined upon that $85,000 would be set
aside in a new trust to cover ongoing therapy and treatment
costs; do you recall that?
A.
Yes. There was a fairly small number but a number of
men who had ongoing medical needs. So on the advice of the
trustees, that was the amount that was settled into a new
trust.
Q.
Then there was $105,000 which was used to top up men
who hadn't fallen within the numbers of the most serious
sexual abuse; is that right?
A.
That's correct.
Q.
That was on the recommendation of Mr Stephens or
Mr Rush QC?
A.
Yes, I understand so.
Q.
And then, finally, the surplus funds, except for
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administrative expenses, would be divided amongst all
beneficiaries of the trust?
A.
Yes, that's correct.
Q.
Do you have a recollection of how much that was?
A.
Well, I'm just going on what's in the statement. What
I've been advised is that it was somewhere in the vicinity
of - sorry, the whole amount was $700,000 to $800,000. So
by the time you take out $105,000 for those top-up
payments, $85,000, that's $190,000, I suppose it's about
$600,000.
Q.
A.
That was distributed equally?
As I understand, it was divided, yeah.
Q.
You speak in your statement about the way in which
Towards Healing was implemented at the Christian Brothers
level, before you finished your time as congregational
leader.
A.
Province leader.
Q.
Province leader, I apologise. Did you have any
involvement in the Towards Healing process?
A.
Yes. I was directly involved in a number of Towards
Healing "mediations" as we call them, probably in the late
1990s, 2000, 2001, 2002 - in that period.
Q.
So in the quite early days of Towards Healing?
A.
Yes - well, not the very early days, because it was
first launched in 1996. But I don't recall it having much
impact or being utilised much by us for whatever reason perhaps because CBERS was dealing with the needs of many of
our former residents, and it may have been partly in
response to the communications I sent out in 1996/1997
appealing to any former students of our other schools who
had any complaints about their treatment to make contact
with us, or with various other sorts of agencies that we
indicated. Towards Healing may have become the way we
dealt with some of them. Then there were also -Q.
Can I stop you there. That's the letter that you
wrote to all of the Christian Brothers schools in Western
Australia and South Australia, not just the institutional
residential care -A.
Yes. There were two communications. There was one in
1996. I think it was published in places like the Catholic
newspapers and maybe school newsletters and things like
.06/05/2014 (WA19)
WA2212
A J SHANAHAN (Ms Needham)
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that. And then the next year I wrote another letter
reiterating the message of that first communication. We
tried to get the Old Boys Associations of each school to
send that out to whoever they had on their contact list,
and the letter had an explicit appeal to anyone who knew of
a former student, who might need to get this message,
"Please make sure they got it", because if someone had been
abused, they probably weren't paid-up, happy members of the
Old Boys Association and might not have got the letter
directly.
Q.
Was there much of an upswing in complaints after
sending that letter?
A.
The number of contacts we got after that was
relatively small, as I recall.
Q.
Sorry, coming back Towards Healing and your
involvement in that in the late 1990s, early 2000s, did you
personally, as province leader, attend mediations or
facilitations?
A.
I did.
Q.
Did you provide personal apologies to the people who
attended those?
A.
I did.
Q.
Were you involved in the range of outcomes which were
agreed upon at those facilitations?
A.
Yes.
Q.
What kind of outcomes, without breaching any
confidentiality, do you recall were agreed upon?
A.
Well, there was usually a payment of some sort
involved, I think. My memory is a bit vague 13 years on,
or whatever it is, 12 years on. There may have been other
things, too, like various forms of practical assistance you know, helping someone maybe with their business or, you
know, something to do with accommodation or something like
that. It depended a bit. I think part of - for me, part
of the benefit or the good that was done through this sort
of mediation and meeting was being able to talk with the
person about their needs and how could we help them, but
I can't be more detailed than that, I'm sorry.
Q.
Currently, as you've told the Commission, you're
involved with the novices coming into the position where
you work?
.06/05/2014 (WA19)
WA2213
A J SHANAHAN (Ms Needham)
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A.
Yes.
Q.
I have forgotten the name of your institute?
A.
It's the novitiate, it's the generic term for the sort
of training institution.
Q.
Currently I think you have eight young men undertaking
the novitiate?
A.
That's correct, yes.
Q.
You told his Honour of the kind of personal contact
you have with those young men, as director?
A.
Yes.
Q.
Is it the case that from time to time it becomes clear
to you that a person is unsuitable for entry into the
brotherhood?
A.
Yes, absolutely, it's part of our job, that in our
journey with the young men through the two years of the
program - part of our job is to assess their suitability.
Now, they have already been through some sort of assessment
prior to getting to us, but assessment is not something
that's done once and for ever, and particularly as you work
with them, in a personal way over the two years, you get a
clearer picture of is this person going to be able to,
like, live community life as we live it; is this person
going to be able to work as a brother in the sorts of
institutions or projects or schools that we conduct and do
that in a sort of constructive profitable way, and so on
and so forth.
Q.
Is it the case that if you come to the conclusion
yourself, rather than the person themselves coming to that
conclusion, that you will terminate their appointment as a
novice?
A.
That's correct.
Q.
If that's the correct term.
A.
"Termination" is not quite it. In some cases, a
novice will come to the conclusion himself, "This is not
for me", and he comes and says, "Look, I think I want to go
home." We'll talk with him about why, what's led to that,
but if he wants to go, we're not going to stop him. That's
fine.
In a case where we've decided or are starting to come
to the conclusion that a person is not suitable, ideally
.06/05/2014 (WA19)
WA2214
A J SHANAHAN (Ms Needham)
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you'd hope that the person himself is also starting to come
to the realisation that, "Maybe this is not the right place
for me." So the happy ideal is if he can see this is not
right for him and we've come to that conclusion, so we part
as good friends. But it also happens that we come to a
conclusion that the person doesn't have the sort of
maturity we're looking for, and we just have to say to
them, "Look, we don't think this is the right place for
you. We don't think this is going to be a way of life that
will make you happy and enable you to make other people
happy, so you'll have to withdraw from the program."
MS NEEDHAM:
No further questions, your Honour.
<EXAMINATION BY MS FURNESS:
MS FURNESS:
Q. Brother, you'll recall yesterday there
was reference to canon 653. None of us could remember what
that was. I've been advised that canon 653 is the same as
rule 2008 of chapter 21 of the 1962 constitution which is
referred to in paragraph 29(b)(v) of your statement. Do
you accept that, Brother Shanahan?
A.
Sorry, which paragraph of my statement?
Q.
A.
Paragraph 29(b)(v)?
Yes.
Q.
When I was taking you through the chronology, there
was reference to 1 April 1960, if I can just have that on
the screen. Do you see there was a reference there to
Brother Jordan and there was a letter in relation to the
arrest of Brother Jordan, do you see that?
A.
Yes.
Q.
The document referred to in the final column, "123",
indicates that Brother Jordan was arrested in a public
telephone booth dressed in overalls and was charged with
having made a series of telephone calls from public booths
to a young lady, the subject matter of the conversation
being of an obscene nature according to police. That just
clarifies, brother, our confusion as to what he might have
been charged with.
A.
Mmm-hmm.
MS FURNESS:
THE CHAIR:
I have no further questions, your Honour.
Thank you, brother.
Thank you for coming.
.06/05/2014 (WA19)
WA2215
A J SHANAHAN (Ms Furness)
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You are now formally excused.
<THE WITNESS WITHDREW
MS FURNESS:
Your Honour, I call Brother Julian McDonald.
<ROBERT JULIAN McDONALD, sworn:
[2.55pm]
<EXAMINATION BY MS FURNESS:
MS FURNESS:
Q. Brother, would you tell the Royal
Commission your full name and occupation?
A.
My name is Robert Julian McDonald. That's not the
name on my birth certificate; I'm Robert Mark McDonald on
my birth certificate, Julian is my religious name. I'm the
deputy province leader of the Christian Brothers for the
Oceania Province.
Q.
The Oceania Province covers what area?
A.
Australia, New Zealand, Papua New Guinea, East Timor,
Philippines.
Q.
So the structure has gone back to one province
covering Australia and other areas?
A.
It has indeed.
Q.
You've provided a statement to assist the Royal
Commission?
A.
I have.
Q.
A.
Are there any amendments you wish to make?
There are.
Q.
A.
Would you tell me what paragraph?
Paragraph 100.
Q.
Yes.
A.
In the middle of paragraph 100 there is a hanging
sentence or a hanging participle clause. It's an
incomplete sentence and I had made several attempts to have
that corrected in my dictation to the people who were
taking my statement for me, and I have been unsuccessful,
after two attempts, to do that.
Q.
A.
How should it read?
It should read:
.06/05/2014 (WA19)
WA2216
R J McDONALD (Ms Furness)
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While the plaintiffs had chosen to litigate
their complaints, I now believe that this
was not a justification for the strategy
adopted by the Christian Brothers. It
would have been preferable to pursue an
outcome based on the experiences of each
individual plaintiff. Regrettably, this
information was not available to us in the
litigation.
Q.
Thank you, brother. Are there any other amendments
you wish to make?
A.
Yes, there are two. One is to paragraph 114. At the
end of the line, it should read "at St Mary's
Provincialate" not "at Mary's Provincialate"; and in
paragraph 210, the last sentence, the third word "could"
ought be replaced by "would".
Q.
Thank you, brother. Are they the changes you wish to
make?
A.
They are the only three changes, Ms Furness.
Q.
With those changes, are the contents of your statement
true and correct?
A.
They are.
MS FURNESS:
THE CHAIR:
I tender that statement.
It will become exhibit 11-29.
EXHIBIT #11-29 STATEMENT OF ROBERT JULIAN McDONALD
DATED 23/04/2014
MS FURNESS:
Q.
You became a Christian Brother in 1960?
A.
Yes, 31 January 1960 I joined the Christian Brothers.
Q.
You were director of the Christian Brothers Formation
in Strathfield between 1973 and 1981?
A.
Correct.
Q.
And Strathfield then being effectively the
headquarters?
A.
Of the province, yes.
Q.
A.
And vocation director between 1979 and 1984?
Yes.
.06/05/2014 (WA19)
WA2217
R J McDONALD (Ms Furness)
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Q.
What did you do as vocation director?
A.
I pursued a process that some brothers didn't agree
with. There was a perception that the vocation director
ought go on a recruiting campaign. I don't believe in
recruitment. I believe in helping young people to make
decisions that are healthy for them. So I pursued a
process that involved seminars, if you like, and visits to
school that was built around how does one make healthy
decisions for one's life.
Q.
Between 1990 and 2002, you held a position of province
leader of the St Mary's Province, and at that time
St Mary's was New South Wales, ACT and Papua New Guinea?
A.
Correct.
Q.
You were also on the national executive of the
Australian Conference of Leaders of Religious Institutes
for the decade 1990 to 2000?
A.
I was a member of that executive. At one stage I was
the treasurer.
Q.
A.
Is that the equivalent of the Bishops Conference?
I believe the bishops wouldn't agree with that.
Q.
Equivalent - leave aside whether "equivalent" has any
qualitative component?
A.
Let's say it was a parallel body that represented the
leaders of religious institutes and we did dialogue with
the bishops.
Q.
And currently you are deputy province leader of the
Oceania Province?
A.
That's correct.
Q.
A.
Who is the provincial?
Brother Vincent Francis Duggan.
Q.
A.
You've been deputy since 2012?
Correct.
Q.
You're also a board member of St Stanislaus College in
Bathurst; is that right?
A.
I was until recently. I have a new position which has
meant I'll have to move out of the country.
Q.
A.
How long were you a board member of St Stanislaus?
That's a good question. I was invited to join the
.06/05/2014 (WA19)
WA2218
R J McDONALD (Ms Furness)
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board of St Stanislaus College Bathurst almost immediately
after I concluded my term as province leader for the
Christian Brothers in 2002, so I've been a board member
from late 2002 or early 2003 until this year.
Q.
When you became a board member had the various police
actions that we now know about commenced?
A.
No.
Q.
So while you were a board member, the police
investigations into aspects of conduct of those at the
college began?
A.
That is correct.
Q.
Can you tell us how many Christian Brothers who have
worked at St Stanislaus College have been convicted of
offences in relation to sexual abuse of children?
A.
There are no Christian Brothers at St Stanislaus
College. St Stanislaus College is owned and governed by
the Vincentian Fathers, which is a separate religious
group.
Q.
Can you answer my question in relation to the
Vincentian Fathers?
A.
No, I can't, because as board members we didn't deal
directly with any of those cases.
Q.
You mightn't have dealt directly with them, but as a
board member you would certainly want to know how many had
been convicted, wouldn't you?
A.
I don't have that information.
Q.
I understand you don't now know, but in your position
as board member, that would have come to your attention,
I take it?
A.
It was brought to our attention from time to time as
headmaster of the college reported on what was happening.
THE CHAIR:
Q.
You, as a board member, would have been
vitally interested to know what was happening, wouldn't
you?
A.
I was vitally interested, your Honour, to know what
was happening and how it was being dealt with, but the
St Stanislaus College doesn't belong to the
Christian Brothers.
Q.
I understand that, but once you become a board member
.06/05/2014 (WA19)
WA2219
R J McDONALD (Ms Furness)
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of an institution, a lay person would think that that
carries with it very considerable responsibilities -A.
It is - very serious responsibilities.
Q.
A.
-- as to how the institution operates?
Agreed.
Q.
Wouldn't you have been vitally interested, once these
issues started to emerge, to know what had been going on?
A.
I was indeed.
Q.
And did you, with the board, take steps to understand
where the institution might have gone wrong?
A.
Not where the institution had gone wrong, but, rather,
how the institution was dealing with the issue now.
Q.
Did you not think it relevant to see what may have
been the reasons why the problems emerged?
A.
I've always felt it relevant where I've had any area
of responsibility to look at causes, that is true.
Q.
Don't board members of institutions have that sort of
responsibility?
A.
Relative to the past, I'm not totally sure. I had a
responsibility, as a current member of the board, and
pursued that responsibility and, in fact, did ask the
question of the headmaster as to how these things were
being managed. What caused it, I do not know.
MS FURNESS:
Q.
Were there any parallels you could draw
with what you had subsequently learnt from the four
orphanages the subject of this case study?
A.
The orphanages that are the subject of this case study
are, or were, institutions that were principally childcare
institutions.
Q.
I understand the difference, but notwithstanding the
difference, were there any parallels? I appreciate there
are many differences.
A.
The parallels, I would expect, are the parallels of
fiduciary duty that were incumbent upon those responsible
for running the college at that time.
THE CHAIR:
Q.
Brother, I think counsel is rather asking
you to consider the matter in a somewhat different
perspective. You see, it is true that what we're looking
at in this case study are four institutions which don't
.06/05/2014 (WA19)
WA2220
R J McDONALD (Ms Furness)
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exist, at least certainly in the form in which they used to
exist. St Stanislaus, though, of course, where you were a
board member, still exists?
A.
It does.
Q.
As I understand it as a residential college; is that
right?
A.
Correct.
Q.
The fact that there are problems, or problems have
been identified there, is a matter of critical importance
to this Commission and, of course, to the whole community?
A.
I understand.
Q.
Because it still exists in the form in which the
problems have emerged. What counsel is asking you is have
you considered, having regard to your deep knowledge of
what happened in the Christian Brothers institutions in the
west, what relevance your learning there might have to how
contemporary residential colleges should be managed and how
the disciplines that are relevant to ensuring that abuse
doesn't happen are carried out - have you thought about
those things?
A.
I have thought about those things, your Honour, and
I believe that there ought be in place in any residential
institution certain codes of conduct and behaviour of all
staff as to how they care for the boarders at the
particular college or institution and whether or not they
abide by codes of conduct, whether or not they have in
place the necessary procedures for protecting children and
looking after the best interests of children and honouring
the confidence that parents place in them.
Q.
What conclusions did you reach when you considered
those matters for St Stanislaus?
A.
The only conclusion I can reach is that in some cases
the responsibilities that people carried - that staff
members carried - were not adhered to. They did not abide
by the rules.
Q.
Then how do you make sure that people do?
A.
You make sure that they do by making sure there are
adequate policies and protection measures and processes for
dealing with complaints in place.
Q.
Well, there were policies in the Christian Brothers
going way back, as to how they were to conduct themselves,
.06/05/2014 (WA19)
WA2221
R J McDONALD (Ms Furness)
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but, plainly, they were breached on many occasions, weren't
they?
A.
Without a doubt, your Honour.
Q.
Now, that suggests that you can have all the policies
you like, but unless you have an appropriate culture and an
appropriate management regime, there will be failures.
A.
That is correct.
Q.
Have you thought about how you develop that culture
and the appropriate management regime for an institution
which is responsible for the residential care of children?
A.
Yes, your Honour.
Q.
What conclusions have you come to?
A.
I believe that the board has to work closely with the
principal, with the headmaster in this case, to ensure that
he is implementing the right procedures and processes and
that the management of places like dormitories is done
adequately; that we cannot allow situations to arise where
students are put at risk; that, for instance, staff are
screened before they're hired. There are a whole lot of
things like that. Records have to be checked out, previous
employers have to be consulted with, et cetera, et cetera.
MS FURNESS:
Q.
As you are aware, Brother McDonald, the
Royal Commission sought by summons from the
Christian Brothers data about claims for compensation made
against the Christian Brothers within Australia from
1 January 1980. You're aware of that?
A.
I am.
Q.
And the data that was provided included payments made
by the Catholic Church Insurance - CCI - in respect of
claims against the Christian Brothers, as well as
Christian Brothers' data held by it. You understand that?
A.
I do.
Q.
And the data that was provided excludes the
compensation paid following the settlement of the
Slater & Gordon class action.
A.
Correct.
Q.
The data that was provided, after some analysis,
indicates that for the period 1 January 1980 to 1 June
2013, the Christian Brothers received 775 allegations
against members of the Christian Brothers or
.06/05/2014 (WA19)
WA2222
R J McDONALD (Ms Furness)
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non Christian Brothers, such as visiting priests or lay
staff, or other non Christian Brothers personnel who,
nevertheless, were working at a Christian Brothers
institution, concerning sexual abuse or a combination of
sexual abuse and other types of abuse - physical,
psychological, or unspecified abuse. You understand that
to be the case?
A.
I do.
Q.
The 775 allegations were made by 531 complainants, so
clearly individuals, on occasions, made more than one
allegation.
A.
(Witness nods).
Q.
Of the 531 complainants, 424 of those received a
monetary settlement from the Christian Brothers or CCI on
the Christian Brothers' behalf. You understand that?
A.
I do.
Q.
The total amount paid in compensation in response to
the allegations made - that is, the 775 allegations - was,
roughly, $20,885,000.
A.
That is true.
Q.
Giving an average payment of just under $50,000 per
complainant who received a monetary settlement.
A.
Understood.
Q.
Going back to the 775 allegations concerning sexual
abuse or a combination of sexual abuse and other types of
abuse, 196 of those 775 allegations relate to the abuse at
the four institutions the subject of this case study Castledare, Bindoon, Clontarf and Tardun. Now, the 196
allegations concerning sexual abuse or a combination of
sexual and other abuse were made by 101 complainants; you
understand that?
A.
I do.
Q.
So, again, complainants on some occasions made more
than one allegation, which you would understand to be
consistent with the evidence the Royal Commission has
received over the last week or so?
A.
I do.
Q.
Of the 101 complainants, 91 received a monetary
settlement from the Christian Brothers or the insurer.
total amount paid in compensation in response to those
.06/05/2014 (WA19)
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R J McDONALD (Ms Furness)
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allegations was about $3,341,000; you understand that?
A.
Yes, I do.
Q.
Giving an average payment of $36,700-odd per
complainant who received a monetary settlement. Now, as
I've said, this data doesn't include the Slater & Gordon
settlement. Do you accept those figures, brother?
A.
I do.
Q.
Can I turn then to the class action. If we can turn
to paragraph 55 of your statement, you indicate there that
you instructed Mr Howard Harrison of Carroll & O'Dea, after
becoming aware of the litigation through an article in the
newspaper.
A.
That is correct.
Q.
What was your position at the time - this is 1993?
What position did you hold in the Christian Brothers?
A.
I was province leader of St Mary's Province of the
Christian Brothers - that's New South Wales, ACT and PNG.
Q.
You were involved because the litigation began in an
area the subject of your province; is that right?
A.
That is correct.
Q.
Who was the province leader covering Western Australia
at the time?
A.
Brother Gerry Faulkner.
Q.
But, again, you instructed Mr Harrison because of your
location in Sydney?
A.
That is true.
Q.
You say in paragraph 55 that you instructed him, on
his recommendation, "to investigate these matters with
Slater & Gordon". Have you chosen that word "investigate"
carefully, Brother McDonald, in your statement?
THE CHAIR:
Q.
"Discuss" I think he means.
Don't you?
MS FURNESS:
Q.
"Defend"? There's a range of words one
could have used?
A.
There's a range of words I could have used. My
difficulty, quite frankly, is that at that time I really
didn't know what litigation was all about, and this hit me
.06/05/2014 (WA19)
WA2224
R J McDONALD (Ms Furness)
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like a bombshell, I suppose, because I was being asked to
defend something that happened on the other side of the
country about which I had next to no knowledge.
Q.
When you say you were "asked to defend it", who asked
you to defend it, as opposed to respond to it?
A.
Well, probably that's the better word - "respond". I
was drawn into the litigation because I was named, I think,
as first/second defendant.
Q.
Was this the first time that you had been named in
litigation concerning a personal injury?
A.
It was.
Q.
Had you been named in litigation in relation to
property or industrial matters?
A.
Not to my knowledge. I'd been challenged about what
were called contingencies early in my time as province
leader probably in the first - in the second half of 1990
by a building company that said, "We've been underpaid and
if you don't pay up $100,000, we will take you to court."
But that didn't get to formal litigation.
Q.
In paragraphs 61 and 61 you set out your reaction to
the litigation and you refer to your anxiety about it, but
also, that it was your understanding at the time - and
I take it "the time" is the beginning of the litigation -A.
(Witness nods).
Q.
-- that Slater & Gordon was an aggressive law firm.
Do you see that. That's in paragraph 62?
A.
Yes, I wrote that.
Q.
Where did that understanding come from, given that you
are a novice as a litigant?
A.
From my reading of the newspapers.
Q.
Did the newspapers refer to Slater & Gordon as an
aggressive law firm?
A.
I don't know that the newspapers used the word
"aggressive", but Slater & Gordon - I had the impression
from newspapers that Slater & Gordon were taking up what
I would call big cases, like Ok Tedi, Wittenoom - Ok Tedi
may not have been on the agenda then, but Wittenoom I think
was I think, and the implication I read from the newspapers
was this was a powerful law firm going into bat for groups
of people, and that more or less said: you support us,
.06/05/2014 (WA19)
WA2225
R J McDONALD (Ms Furness)
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we'll win for you.
any costs.
If we don't win, you won't have to pay
Q.
How did that have anything to do with the way you
responded to whether or not these people were injured at
the hands of the Christian Brothers and deserved some
recompense for that. What did that have to do with it?
A.
Could you please put the question again?
Q.
Certainly. What did the fact that Slater & Gordon had
dealt with big cases and that you believed they were a firm
going into bat for groups of people and that: "You support
us, we'll win for you and if we don't win you don't have to
pay any costs" - what did that have to do with the stance
you took when there was a claim against the
Christian Brothers for compensation arising out of harm
caused by the Christian Brothers?
A.
The stance I took was that this is unfamiliar ground
to me, I need proper professional advice. So I approached
Carroll & O'Dea and said, "Look, I want you to advise me on
this, because, in a sense, I'm carrying this for three
other provinces as well as the province of St Mary's, and
I need some professional advice on how to respond." My
difficulty was that I have trouble, personally, going the
litigation way.
THE CHAIR:
Q.
Brother, by this stage, of course, you
knew from the work of Brother Coldrey that there was
evidence of significant problems and I think, also, the
apology had been made at that stage, hadn't it?
A.
The apology had been made in Western Australia, that
is correct, and it was very soon after the apology, your
Honour, that the Slater & Gordon action was advertised in
the newspaper.
Q.
I assume from the work that had been done to document
what had happened by Brother Coldrey, and the fact that the
Brothers had felt moved to issue the apology, that the
Brothers accepted that they were responsible for having
injured a number of people; is that right?
A.
The Brothers in Western Australia had. I was not
familiar with all the details of what had happened in
Western Australia, your Honour, and it wasn't really until
I had read one of the final chapters in "The Scheme", and
it wasn't until subsequently Brother Coldrey produced
"Reaping the Whirlwind" that I was personally aware of all
the details of that abuse.
.06/05/2014 (WA19)
WA2226
R J McDONALD (Ms Furness)
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Q.
A.
"Reaping the Whirlwind" you read when?
I didn't read it fully until fairly recently.
Q.
But you read enough back then. When was that?
A.
I read it in parts back then and I think, from memory,
it was produced in 1994.
Q.
Again, I would assume that, leaving aside what the
lawyers might have been saying to you, you, yourself,
understood that the Brothers had been responsible for
injuring a significant number of people?
A.
That is true.
Q.
Did you, yourself, think accordingly that the Brothers
were obliged to accept responsibility for doing what you
could to repair the damage that had been done?
A.
I did, except that I didn't know details of the damage
and Slater & Gordon wouldn't tell me or anybody else
details of the damage or who the victims were.
Q.
That's the lawyers, but at the point where you came to
understand what had happened, leaving aside the lawyers,
because lawyers plainly have a capacity to complicate
things, but as far as -MS FURNESS:
Some lawyers do, your Honour.
THE CHAIR:
Q.
As far as you as the brother were
concerned, was there any doubt in your mind that the
Brothers had an obligation to do what they could to repair
the damage that had been done?
A.
There was no doubt in my mind, and I really would have
preferred to go the way of mediation, to a mediated
settlement. Frankly, I felt locked in.
Q.
When you say that that's the road you would have
preferred to go, where I'm leading you is to a discussion
about what the lawyers call vicarious liability.
Presumably, by now you've had those sorts of discussions
with the lawyers; is that right?
A.
I've come to understand something of it, yes, your
Honour.
Q.
As opposed to an absolute liability, to shorthand the
language?
A.
Yes.
.06/05/2014 (WA19)
WA2227
R J McDONALD (Ms Furness)
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Q.
Did you have any doubt in your mind that, given the
nature of the Brothers and the way these institutions were
run and the persons who were brought to them and damaged,
that the Brothers as an institution, as a group, however
you like to call it, carried that responsibility even
though it was the actions of perhaps people who were now
dead that caused the damage?
A.
I've never doubted that, your Honour.
Q.
That would mean that the argument about vicarious
liability would not be one that you would respond to.
A.
No.
Q.
Would your view on that question be generally held
amongst the brothers, do you think?
A.
At a guess, I'd say so. Look, compassion - that's
probably not the right word - a pastoral response is my
inclination and desire, and that's how I was educated. The
world of litigation is, quite frankly, totally foreign
territory to me, and I find it repulsive in a lot of ways.
Q.
To go back to the discussion that we are having,
I assume that that is born of the fact that you understand
that the Brothers had, and continued to have, a
responsibility to those who may have been damaged by the
actions of members of the brotherhood?
A.
I do.
Q.
I should add, you know that I've discussed that same
issue with other people from the church in various roles?
A.
I understand that, and if you want to discuss it
further with me, please don't hesitate.
MS FURNESS:
Q.
If we can turn to paragraph 78 of your
statement, at the top of page 12 -A.
Yes.
Q.
-- you say:
The advice from the legal team was that
decisive action needed to be taken to deal
with these matters immediately.
And once a complainant commences litigation, the pastoral
consideration will be set aside. Do you see that?
A.
I do.
.06/05/2014 (WA19)
WA2228
R J McDONALD (Ms Furness)
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Q.
But, in fact, that wasn't the way it operated, was it,
because you still had CBERS and the help line and various
other measures running alongside which were available to
the Slater & Gordon plaintiffs.
A.
That is true.
Q.
Is that right?
A.
And that, to my way of thinking, Ms Furness, was part
of the dilemma, if you like. Brother Faulkner had started
a pastoral response and he had been in dialogue with the
men from VOICES and that was going on. Slater & Gordon
didn't want us to have anything to do with the plaintiffs
they represented.
Q.
But you did. As a church, as a congregation, as an
Order, you in fact were dealing with the very men, in
relation to the other measures that we've gone through a
number of times in these proceedings, that you had in
place?
A.
I'm not sure that they were the very men. Like, there
were some people going to Brother Faulkner - we simply
didn't have the information as to who the men were that
were being represented.
Q.
But you didn't exclude anyone who was a former
resident from accessing those services, did you?
A.
We didn't, no.
Q.
So you didn't do what was set out in here in your
advice, that pastoral considerations be set aside. You
didn't set them aside, did you?
A.
No.
Q.
And, therefore, to take a pastoral approach to the
litigation itself would have been quite consistent to the
actions of the Christian Brothers, albeit in different
provinces, offering those services to whatever former
resident wished to avail himself of them?
A.
Correct.
Q.
But, indeed, there were no instructions from you on
behalf of the Christian Brothers to enter into settlement
negotiations early at all.
A.
Because we had been advised by Mr Harrison,
Mr Phillips, Mr Peter Johnson, Mr Jack Winneke,
Mr Paul Santamaria, Ms Rimmer to go this direction.
.06/05/2014 (WA19)
WA2229
R J McDONALD (Ms Furness)
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Q.
A.
Everyone you've named was a lawyer; is that right?
No. I think some of them were barristers.
THE CHAIR:
They are lawyers, too.
THE WITNESS:
I understand that technically, but I think
there's a hierarchy somewhere.
MS FURNESS:
No, there's no hierarchy.
Q.
You were advised by lawyers, be they barristers or
solicitors, to go down the path you've described?
A.
I was.
Q.
A.
And you accepted that advice?
I did.
THE CHAIR:
Q.
You say in your statement that you were
advised to take technical points. Did you feel comfortable
with being advised to take technical points?
A.
Not totally, your Honour.
Q.
No. Looking back now, do you think you should have
taken technical points?
A.
I've said in my statement here somewhere that if I had
my time over again, I would certainly not go the way of
litigation, nor trying to win battles that were legal
battles.
MS FURNESS:
Q.
You say in your statement that while you
had serious concerns for the plaintiffs, you were also
concerned and responsible for the viability and future of
the New South Wales and ACT schools.
A.
That's true.
Q.
So is it the case that your concerns for the
plaintiffs were tempered by ensuring that the
Christian Brothers had sufficient funds to carry out its
work?
A.
I'm not sure that I would have used the word
"tempered", but -Q.
Balanced by?
A.
Yes, I'd say "balanced by" and I had this balancing
act of being responsible for some 22 schools and some
16,000 to 18,000 students in those schools.
.06/05/2014 (WA19)
WA2230
R J McDONALD (Ms Furness)
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Q.
Wasn't one way of dealing with that balancing act to
attempt, through your lawyers, to understand the needs of
each of the plaintiffs, to work out a sum of money that
might properly respond to those needs?
A.
Definitely, except we couldn't get those needs. That
was the difficulty. Nobody would tell me who they were and
what their needs were.
Q.
For a period of time there was a suppression order in
place, so you didn't know the identity of the plaintiffs that's right?
A.
Correct.
Q.
And for a period of time, your lawyers sought to
engage with Slater & Gordon to obtain details of the
allegations or claims made by each of the plaintiffs.
A.
Correct.
Q.
You would have heard Mr Harrison say that he didn't,
however, seek to sit down with Slater & Gordon in order to
have a discussion, firstly, about such matters, to
understand the boundaries of the litigation, and then,
secondly, to talk money about it - you heard Mr Harrison
say that?
A.
I did.
Q.
And that was open for him to do, do you understand, at
an early stage in the litigation?
A.
Yes.
Q.
Were you aware that that was open to your lawyers to
do such a thing?
A.
I don't have any memory of it, I'm sorry.
THE CHAIR:
Q.
Is the reality of this that you
personally were caught in an environment which you didn't
understand?
A.
Correct.
Q.
And felt, because of your lack of understanding, that
you had to place your trust in the lawyers.
A.
That's true, your Honour.
Q.
A.
With the consequences we know about.
Correct.
.06/05/2014 (WA19)
WA2231
R J McDONALD (Ms Furness)
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Q.
Including the costs that were accumulated in the legal
battle.
A.
Indeed.
Q.
You've obviously learnt some things out of this.
A.
I've learnt an enormous amount in the last 25 years of
dealing with this, your Honour.
Q.
Do you think that what you've learnt has also
penetrated into the minds of others who may face similar
issues on behalf of the church, or not?
A.
I hope it has, and I think there's some at least
anecdotal evidence to support that, because I don't know of
any religious congregations - I can't talk about dioceses
but I don't know of any religious congregations that would
go into litigation over this. This is people's lives being
ruined.
Q.
Have you had discussions in any formal way with the
other religious congregations about your experience?
A.
I have.
Q.
A.
At seminars or similar events?
I'll elaborate on that if that's okay.
Q.
Yes.
A.
I had 12 years as province leader and my response from
then on was always to go the way of mediation. When
I finished as province leader, I was approached by
Bishop Geoffrey Robinson, who said to my successor, "Will
you let Brother McDonald go to Towards Healing, because we
think we can benefit from his experience", and from the end
of 2002 to 2007 I was an executive officer for the National
Office of Professional Standards for the Catholic Church.
In the course of my job there, we ran seminars and
workshops for religious leaders, for bishops, for their
representatives on various issues to deal with the whole
Towards Healing process and the whole issue of dealing with
victims and I often said, "For God's sake, don't go the way
of litigation."
Q.
Have you had the opportunity of sharing your views
with the wider Christian Brothers, and back into Rome?
A.
I have. That's why I think I've been given a job in
Rome starting - well, it was supposed to have started
yesterday. I said at the recent Christian Brothers Chapter
.06/05/2014 (WA19)
WA2232
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in Nairobi, "There's no future for the Christian Brothers
until we address the devastation that some of our brothers
have caused by child sexual abuse - no future unless and
until we do that."
Q.
And going to Rome, you're going to work in the head
office, as it were, of the Christian Brothers, is that -A.
That's true - call it the head office. I call it HQ,
so you're entitled to call it HQ.
Q.
What role will you have there?
A.
I'll be one of the congregation leadership team that
has five members.
MS FURNESS:
Q.
Is your role, as you anticipate it, in
Rome to be concerning indicating to Christian Brothers
Orders around the world approaches they should take to
various issues including child sexual abuse - is that part
of your role?
A.
I hope it will be. I won't be silent, I can assure
you.
Q.
Let me just come back to the process of negotiating
the settlement in the class action, if I can. If we can
have tab G on the screen. This is a letter to you from
your lawyers in February 1996 about the settlement,
Brother McDonald. You'll have seen this as part of your
preparation?
A.
I have. I've got it in my documents somewhere.
Q.
If we can just turn to page 3, which is 002, and go
down to the third numbered paragraph, "To settle or not to
settle"?
A.
Yes.
Q.
There is reference to, among other things, the reality
as Carroll & O'Dea saw it that "we", that is, the
Christian Brothers, "could see a worsening in the current
litigation problem". You understood that Carroll & O'Dea
were concerned that what can be described as more
aggressive American-style litigation might come to these
shores with the Christian Brothers in its sights - you
understood that?
A.
I did.
Q.
If we can then turn over the page, halfway down your
lawyers are telling you that "at the moment" - and this
.06/05/2014 (WA19)
WA2233
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is February 1996 - "sexual abuse cases are capable of being
settled for $20,000 to $40,000".
A.
Yes, I see that.
Q.
And you'd understand that that would be based on their
experience working for the Christian Brothers as well as
other orders, wouldn't you?
A.
Yes.
Q.
You are then told, if it goes to court, the cost could
be between $130,000 to $230,000, do you see that?
A.
Yes.
Q.
A.
That's over the page.
Yes.
Q.
You were then given advice about settling or not
settling, and you were then given advice about various
structures in which a settlement might be arranged. Do you
remember that?
A.
I do.
Q.
And then, at this stage, the offer that was on the
table from Slater & Gordon was still in the vicinity of
$18 million to $20 million, was it not?
A.
I believe so.
Q.
A.
It then dropped to $9.5 million?
It did.
Q.
And your advice, when it was at $9.5 million, was that
it would be a very good outcome for the Christian Brothers
if you could get out of it for $5 million; do you remember
that?
A.
I do.
Q.
Given the 241 plaintiffs and depending, of course, on
how the trust or the outcome was to be structured, that
would mean a relatively small amount of money for probably
each of those.
A.
Yes.
Q.
Was that something that was in your mind at the time
the lawyers were putting to you various options in respect
of settlement?
A.
It was in my mind as a total figure, but I still
didn't know details of the extent of damage that had been
.06/05/2014 (WA19)
WA2234
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done to this large number of plaintiffs. There were people
named eventually who hadn't been near any of our
institutions. So, in one sense, you could say that - or
I felt that the litigation had been done in haste with some
loose edges around it. Now, how many there were, who they
were, what specific damage had been done, I didn't know.
Q.
Did the lawyers provide you with any indication of
breakdown at any stage of the litigation in relation to
what individuals might be likely to receive in the event
that a particular offer was or wasn't accepted?
A.
That happened only at the 11th hour.
Q.
In relation to the trust.
A.
Yes, when they said there will be so many get $25,000
each, so many get $10,000, everybody will get $2,000 as
reimbursement. Then there were all the other things that
were put in relative to the trust.
Q.
The letter I've just taken you to that's still on the
screen, do you recall now the impact that had on you,
knowing that out-of-court settlement of $20,000 and $40,000
was common, in-court settlement of effectively up to
$250,000 was available?
A.
No, I can't recall that. As I say, in one sense, the
numbers meant very little to me. My concern is the people
who were chopped up in the process, whose lives had been
messed up because of what had happened to them way back
there then, and who were now, in one sense, being re-abused
by this whole process - that was a process of litigation
with people on the sidelines saying, "You'll get $120,000
or you'll get $240,000", or whatever, and in one sense
I felt they were being led up the garden path by being
plaintiffs in this horrible litigation.
Q.
When you say that the numbers meant very little to
you, it's the case, isn't it, that you were undertaking, at
least in your mind, a balancing act between this litigation
and your other financial responsibilities with respect to
the other schools and projects in operation?
A.
That is true. I must say I lost sight of the debts
that the schools had at that time and all of that when
I was confronted with the situation, yes, here's this
facing me, it's right in my face, but I got drawn into this
side of the equation, if I could put it that way.
Q.
Let's turn to tab AA --
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THE CHAIR:
Q.
Before we do, at this stage when this
advice is being given, did you have a discussion with your
solicitors about what it might cost the Brothers to defend
the litigation?
A.
No, not really, your Honour.
Q.
Did you ever think that you'd be spending millions of
dollars with lawyers?
A.
That would have been a nightmare to think that - but
yes, I knew that bills were adding up. I didn't know
exactly what they were amounting to, but I subsequently
discovered that, and it's terrible.
Q.
As they were mounting, did you, as it were, think to
ring the bell and say, "Just what's going on here?"
A.
At one level, yes, in the back of my mind, for God's
sake, ring the bell, stop this, but, on the other hand,
here's this thing - it's like a rollercoaster or something.
It's a gargantuan thing moving on and chewing up people and
chewing up funds.
MS FURNESS:
Q.
Did the bills come to you?
A.
I think they came to my bursar. I would have seen
them, yes - I would have seen them.
Q.
If we can just have AA on the screen. This is part of
tender bundle 3. You refer to this in paragraphs 113 and
114 of your statement, if you want to follow it that way,
brother.
A.
Yes.
Q.
These are the minutes of meeting number 7 of the
National Committee on Child Abuse Issues in Balmain
in May 1996?
A.
Yes.
Q.
And you were present, as was Brother Shanahan and
various others.
A.
Correct.
Q.
If we can turn over to page 2, at 5.3 there is
reference to "Settlement", and do you see that at the
heading above that at 5, if we could scroll to see that, is
"Meeting with Howard Harrison and Mitch McKenzie".
A.
Yes.
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Q.
I take it that those two attended the meeting for that
purpose?
A.
They did.
Q.
Is that how to read that?
Then further down, 5.3:
Howard authorised by the meeting to offer a
$4m settlement with a ceiling of $5m.
Do you see that?
A.
I do.
Q.
Prior to this meeting, you had been told by Howard
Harrison that $5 million would be a very good result.
A.
Correct.
Q.
Why did you start at 4?
A.
My understanding of the whole business of litigation
is - if you want a suburban house, ask for a mansion to
begin with.
Q.
But these are the lives of men.
A.
I know they are. I'm looking at the way litigators
seem to work.
Q.
I'm asking you, as
Christian Brothers, why
lawyers would have told
why you agreed to start
A.
I don't know.
a province leader of the
you started at 4. I know why the
you to start at 4. I want to know
at 4?
Q.
In fact, the first offer was lower, wasn't it? The
first offer was $3 million plus $750,000 for their costs.
A.
It was.
Q.
And that was an offer that you authorised on the
advice of the lawyers, I take it?
A.
It was.
Q.
A.
And then you went up to $4 million?
Correct.
Q.
A.
And then to $5 million, where you stayed.
Correct.
Q.
What do you say now about the $5 million amount that
the Christian Brothers settled these claims for?
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A.
Two things I'd say, if that's okay.
Q.
Certainly.
A.
One is I believe it was inadequate, and is inadequate.
The second thing I'd say is that if Slater & Gordon
accepted it, they must have been satisfied with it.
Q.
Do you think that? Sitting there, after hearing all
the evidence, you say that in terms of the
Christian Brothers having offered $5 million, the second
thing you wanted to say is that if Slater & Gordon accepted
it, they must have been satisfied with it. I'll let you
reflect on that for a moment, brother.
A.
Yes. That's relative to back there then. I'm sorry
if I've misunderstood your question.
Q.
My question was: what do you say now about the
$5 million amount that the Christian Brothers settled these
claims for?
A.
I said it was inadequate.
Q.
Yes, that was your first reason. The second was
that -A.
What do I say now? Well, sorry, I should have been
referring to what it was then as far as Slater & Gordon was
concerned. I correct myself on that.
Q.
Did you hear Mr Harrison's evidence about the
negotiations?
A.
Yes, I was here for it. I'm not sure that I absorbed
it all.
Q.
He described the settlement negotiations as the
Christian Brothers having its knee on the throat of the
plaintiffs.
MS NEEDHAM:
I object, your Honour.
not Mr Harrison.
MS FURNESS:
Thank you.
to say Mr Stephens.
THE WITNESS:
That was Mr Stephens,
Sorry, I withdraw that.
I meant
Yes, I heard that.
MS FURNESS:
Q.
What's your reaction to that?
A.
I think it was not fair for him to say that, because
that's not my tactic, number 1; and, secondly, if in fact
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it was a matter of putting knee to throat of anybody, the
Christian Brothers, if you like, having won what I call a
pyrrhic victory, could have said, "Well, we're going to
walk away from this and we're not going to enter into
paying anybody else's legal fees, and we're not even going
to enter into establishing a trust." So I thought that was
a bit unfair on -Q.
Is your approach --
THE CHAIR:
Q.
Brother, I think there's a need to
understand the context of this. You already accepted that
you were advised to take technical points, and you accepted
that advice.
A.
I did.
Q.
That meant that Slater & Gordon had to deal with the
complications that had arisen from the issues in relation
to where the matter would be litigated and whether or not
the statute of limitations would run. That's a technical
matter, but they had to recognise that you, having taken
technical defences, they had to face it. Secondly - and
we've been over this and I'm grateful for your thoughts they also had to contend with the fact that those appearing
for your interests would run a vicarious liability issue proper defendant question - another technical matter, not
without substance, and indeed Slater & Gordon would have
been foolish to think that the Brothers having decided to
take technical defences, that they didn't face very serious
problems.
Now, I get the impression maybe you didn't understand
the context back then of what was actually happening as far
as Slater & Gordon were concerned; is that right?
A.
I don't think I ever grasped this fully at any stage,
but when there were people of the calibre of
Paul Santamaria and Mr Winneke and Mr Peter Johnson and
those people advising us, and they're people I've come to
know and admire, I felt that their advice is the right
advice.
Q.
But, you see, as far as Slater & Gordon were
concerned, faced with the technical defences that were
being taken, it wouldn't be very likely that they would be
happy, or indeed content, with what happened, would it?
A.
Well, I'm sure they weren't happy with the outcome of
the whole affair, but my feeling was: well, if they're
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agreeing to this amount of money, they must have been
satisfied at some level.
Q.
Well, they say at the level that the
Christian Brothers had their foot on their throat; in other
words, they had no choice. That's what they're saying.
A.
Well - and I know that's what they're saying. I'm
just not sure that I totally agree with what they're
saying.
Q.
I have to tell you, with all my 40 years of
experience, I'm not surprised they had that view once you
had decided on advice to take the technical defence -A.
And I accept that from your experience.
MS FURNESS:
Q.
Do you now know how much it cost the
Christian Brothers in terms of payment of the bills of
Carroll & O'Dea?
A.
I think it's $750,000.
Q.
Well, it's certainly the case that cost orders were
made in the Christian Brothers' favour in the proceedings,
and that means that when you won and Slater & Gordon's
plaintiffs lost, the court ordered that they pay your costs
of whatever part of the proceeding?
A.
And we didn't ask for that.
Q.
And you didn't ask for that.
to your statement, to $750,000?
A.
Yes.
That amounted, according
Q.
A.
So you paid $1.5 million to Slater & Gordon?
We did.
Q.
A.
You paid $3.5 million into a trust?
We did.
Q.
You waived $750,000 in moneys that were, according to
court orders, technically owing to you?
A.
Mmm.
Q.
The next item is how much you paid Carroll & O'Dea for
the work it did for you, can you answer that?
A.
No, I can't.
Q.
A.
You don't know?
I don't.
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Q.
A.
You still don't know?
Still don't know.
MS FURNESS:
Your Honour, I notice the time. I'll
probably be a little bit more with the brother in the
morning.
THE CHAIR:
We'll adjourn until 10 o'clock.
AT 3.58PM THE COMMISSION WAS ADJOURNED TO
WEDNESDAY, 7 MAY 2014 AT 10AM
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