Nov 15, 2012

‘Royal commissions aren’t called lawyers’ picnics for nothing’

For lawyers, the royal commission is a chance to have a role in an important case that will have long-lasting implications for Australian society. And it represents a big pay day.

Kate Gibbs

Freelance reporter specialising in legal affairs

Lawyers are jockeying for position on what is estimated to be a long-running and expensive royal commission into institutional child abuse in Australia. But this time, it's not just about the money. The indefinite length of the royal commission, which is likely to run for years, will see lawyers "absolutely benefit", says Josh Bornstein, a principal at law firm Maurice Blackburn Lawyers. "They'll be charging top dollar and be paid top dollar, no different to any royal commission in the past 100 years," he told Crikey. The vast majority of the cost of the royal commission will be lawyers, says Angela Sdrinis, a partner at Ryan Carlisle Thomas. "Royal commissions aren't called lawyers' picnics for nothing," she said. "Good lawyers and good barristers are expensive. If they were not working on the royal commission they could be somewhere else earning $6000 a day. That's an unavoidable cost." But the exact cost is impossible to estimate. "If it goes three years it will be cheaper than five, which will be cheaper than 10," Bornstein said. Some lawyers will be charging full rates to be involved, while others will be accessed using legal aid. Crikey has been told that legal aid solicitors, who brief barristers, can expect to earn $140 an hour during a royal commission, while barristers are paid a daily rate of $1150, about $230 an hour. Their equivalents in the CBD charge three times that at least, says Bornstein, and not every victim and party involved in the royal commission will have access to legal aid lawyers. Not that cost should be a factor. "There is no more worthy subject of a royal commission than this one," Bronstein said. "We are one of the wealthiest countries in the world and this is a disgraceful scourge that has affected victims in terrible ways. It's about the investment, not the cost. But lawyers do charge disgraceful amounts of money and there will be some who find it a very profitable process." Law firm Corrs Chambers Westgarth -- which said it wasn't able to comment for this story -- has traditionally acted for the Catholic Church on similar cases. A handful of smaller law firms work with smaller religious orders and churches and are likely to do defense work on the royal commission. Lewis Holdway Lawyers supports the work of an organisation called Good Faith and Associates, which provides advocacy and support service to women and men who are survivors of abuse by clergy and religious professionals. Sdrinis says this firm, as well as her own, are experienced at plaintiff work such as this. Only a handful of firms have the specific expertise to do this type of work. Lawyers with connections to the Catholic Church will be "clambering to assist", according to Bornstein: "I debate this issue with lawyers who have different views to mine and who are devout Catholics. They argue the confession is sacred. I am on the opposite side of that argument." The public outpouring in support of a royal commission has been echoed in the legal community. For a lot of lawyers, the royal commission represents a chance to help change the structure of how the church is involved in legal matters. Many lawyers have tried to sue the church on behalf of abused children before and have been frustrated by the lack of structure, says Bornstein. They're angry, and many will work pro bono as a result. Bornstein says lawyers will see it as a "feather in their cap". "You will find with organisations like the Salvation Army and the Catholic Church, attempts to sue have been unsuccessful because there is not a proper legal entity to sue. It's held in a property trust that is completely divorced from the supervision of priests or clergy," he said. "As a lawyer, you know what big business does to avoid liability. There is delay, there are PR strategies, there is setting up a code of conduct and arguing a problem is being dealt with internally, there is asset protection. But what has horrified me is that now we are seeing church organisations doing the same thing. They are behaving like Phillip Morris and James Hardie. It cuts to the quick for a lot of lawyers who can recognise the strategy to avoid civil and criminal liability, to protect assets and minimise liability to the brand."

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14 thoughts on “‘Royal commissions aren’t called lawyers’ picnics for nothing’

  1. Edward James

    Now victims and their supporters have won a promise of a Royal Commission. With the priceless assistance of Peter Fox, Joanne McCarthy and so many others including the Newcastle Herald. I expect to read about lawyers lining up overtly offering free legal assistance to those victims. Who have been disenfranchised by a system of church, politics and law which ignored their plight for decades. Edward James

  2. drmick

    Yeah. I am horrified too that churches would stoop as low as to do the same thing as lawyers do. Would we get a different result from a royal commission if we kept lawyers out of it or paid them a fixed amount?
    In the history of this country, you are only as guilty as the legal representation you can afford. We do not have a justice system; we have a market driven “legal” system. Very little justice and what there is costs a lot of money.

  3. Andybob

    We need a royal commission into the legal system DrMick. Oh wait….

  4. Salamander

    Also I hope it doesn’t get bogged down in the confessional exemption issue. A lot of the cover-ups had to do with administrators moving offenders on. Unlikely their boss was also their confessor.

  5. The diving swan

    If the privilege against not being compelled to disclose what is revealed in the confessional is abrogated what about removing the privilege for journalists revealing their sources? Hasn’t that been abused in the past? Or is that too close to the self interest of the commentators?
    And Mr Bornstein expresses concern that “lawyers do charge disgraceful amounts of money and there will be some who find it a very profitable process.” Quite probably true but I think it’s not unreasonable for Mr Bornstein to nominate his hourly rate so we can see how impartial and honest his assessment is. Perhaps it’s a case of judge not lest ye shall be judged.

  6. Thteribl

    The Irish Child Abuse Commission dealt mainly with the Roman Catholic Church because of its preponderance in Ireland. The proposed Royal Commission in Australia will be dealing with a host of organisations, not all of which are connected with any church. This will create a “fog” of obfuscation and finger-pointing, exonerating salient offenders.

  7. Liz45

    @Thteribl – There have been several people ‘in the know’ who’ve clearly stated that the catholic clergy would make up the overwhelming number of child rapists? I think the Professor on Lateline last night had some interesting things to add. He also pointed out, that the cc has NOT changed its attitude or behaviour in recent years. On the contrary, he gave a very scathing report of his role in overseeing the so-called protocols and how they and his report was watered down – to a very low key level at that!

    In fact, he likened the whole nasty business as almost that – a ‘organised crimes’? It was most revealing as was the PM of Ireland’s address to Parliament. Ireland has almost broken its ‘ties’ with the cc – it doesn’t have the same power or impact in politics as it used to. A good job I say!

    @Salamander – I agree with you. While it’s worthy of being addressed, as many have pointed out, the problem of clergy being warned of any accusations so that they either have/had time to destroy any evidence (rooms where abuse took place – bed etc) and/or to have the perpetrator whisked off ‘out of there’? The thing is the habitual offenders caused havoc and destruction wherever they went – sometimes (like a bastard in Victoria) for 60 years???Unbelievable!

    One chilling aspect is, that neither the abuse, the bullying or the silence have changed. Abuse is still taking place, priests etc are being protected, and victims are still being bullied and treated appallingly! So much for Pell asserting that ‘things have changed since 1998’? Total rubbish. He’s either delusional or just plain evil himself!

    As to the lawyers fees etc? Perhaps the Govt could put a maximum hourly rate for each ‘layer’ of legal people? Won’t happen, but?

  8. zut alors

    Years ago a barrister pal was involved in a Commission of Inquiry. Thereafter, his spouse named the new wing of their house after the presiding Commissioner.

  9. Hamis Hill

    No mention of Canon Lawyers who might have argued, that under canon law, “compurgation”, where priest judges priest, be chosen over the Australian Legal system.
    Pay that other set of lawyers from the seized assetts of the proven offenders then deport same upon their release from gaol.
    On a parallel track, bring in capital punishment, isn’t that a right wing favourite?
    The money saved on incarceration can help pay for the barristers etc.
    Or a special levy on those members of the various special religious communities who were unable or unwilling to give their own communities’ children the protection of the law and who are, ultimately, responsible for the public expense.
    An enforced exedus, followed by two generations in the wilderness might purge these special communities’ pretences about actually being Christian.

  10. AR

    HamisH – too logical, just & sensible. instead it will become bogged down in as many irrelevancies as shyster minds can create, not a small number.
    AndyB – also spot on.

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