It’s a funny thing …..
About the Disciplinary Tribunal of the Anglican Church of Australia Sydney Diocese
Part 1
Disgraceful behaviour by Deputy President of the Disciplinary Tribunal Sydney Anglican Church
By Louise Greentree[1]
Introduction
In my series ‘Drew’s Adventures in Wonderland’[2] I pulled apart the Disciplinary Tribunal of the Anglican Church of Australia Sydney diocese and demonstrated that as it is merely a body created by successive (Church) Discipline Ordinances of Sydney diocese, it has no more authority and power than the Court of Playing Cards in Lewis Carroll’s children’s classic Alice’s Adventures in Wonderland. This may have caused some angst in church circles but it was necessary to make it clear that despite the performances put on by the members of the Tribunal in Drew’s case he was facing a toothless (and very saw-dusty) toy tiger.
Notwithstanding this, however, it is an expensive and excoriating experience being forced to be involved with the process involving this Tribunal, not least because of the behaviour of the Tribunal members attempting to impose a pretence of power and authority. It has been for Drew and Pippa and their solicitor Dr. Scott Dobbs an experience that has made clear that it is a disgrace to a church organisation for its’ blatant disregard for principles of justice and fair process, let alone professional courtesy and competence. It’s pretence to authority and fair process is based wholly and simply on bluff and bluster.
After the second directions hearing on 15 July 2014 I wrote and published on my website a piece called ‘Disgraceful behaviour by Deputy Chairman of Disciplinary Tribunal Sydney Anglican Church’. I took it down after a short period of time when I was sure that a significant quantity of people of influence had seen and read it. It was necessary to keep things ‘cool’ as successive directions hearings were being held before the very same members of the Disciplinary Tribunal[3].
With some updating, including removing anonymity, that article now appears as the first in this series.
As the diligent researcher of the Sydney Anglican website will discover, the Deputy President of the Disciplinary Tribunal of the Anglican Church Sydney diocese is the former Chief Judge in Equity of the Supreme Court of New South Wales, presently Acting Judge Peter Young AO QC. The other Tribunal members are: barrister Mrs. Victoria Brigden (who has been on maternity leave recently) and the Rev. Mark Charleston.
I do need to make it clear that my report upon the behaviour of these individuals has no connection with their work in the world outside the Disciplinary Tribunal; in particular my criticism of the Deputy President’s role and behaviour is not a comment on his work in the State of NSW civil law system and no-one should construe what I write as having any application to his behaviour, professionalism and competence there.
In the next two articles concerning the Disciplinary Tribunal in this series I will look at further examples of what has been going on in the directions hearings (there has not been a final hearing despite it being scheduled for 23 and 24 April 2015[4]) and why those representing the Sydney PSU in this case, the PSU director Mr. Lachlan Bryant and Mr. Michael Easton, barrister and deputy Chancellor of the diocese, as well as, I surmise, the deputy President of the tribunal and the other two Tribunal members themselves, are unwilling to reschedule the case for a hearing by the Tribunal.
On the evening of Tuesday 15th July 2014 those present in a hearing room at St. Andrew’s House, Sydney Square, the headquarters of the Sydney Anglican Church, were witnesses to the disgraceful, intimidating and threatening verbal abuse of a woman who had come into the room with her husband who is a solicitor appearing for the respondents. She was threatened with removal. Why? Because she had come in to take notes of the Directions Hearing to assist her husband.
She was subjected to a barrage of angry demands by the Hon. Acting Judge Peter Young AO QC[5] that she must give an undertaking not to reveal to anyone what went on in the directions hearing or immediately leave the room. She refused. This is not provocative. Firstly, the proceedings were being recorded for an official transcript which would be sent to the parties some days after that date. However, secondly, for the time being note-taking is an appropriate way of reviewing immediately what was said and what directions were given. If you look in a State or Federal courtroom while legal representatives are addressing the Court you will see that usually they are accompanied by someone from their office or chambers taking notes and keeping track of the submissions and the orders and directions made.
Thirdly, the Tribunal deputy president is not there as a judge duly appointed to dispense justice whether in the civil or criminal sphere and therefore able to enforce respect for the judicial officers and the judicial process through the power of contempt of court. Here in the Anglican Church Disciplinary Tribunal he has no power or authority at all and all the bluster in the world cannot alter that fundamental fact. What could he have done had the woman simply said: ‘if you want to remove me you will have to get someone to physically pick me up and throw me out.’? Would he, could he, have called the Police to eject her? Would he have been unworried that she or her husband had News Limited, Channel 7 and other media outlets on speed dial?
Fourthly, he is not in a courtroom but sitting on a Church Disciplinary Tribunal which was created by the Discipline Ordinance 2006, which does not give decisions of the Tribunal members the force of law. They have only the function of reviewing the evidence and making recommendations to the Archbishop, who can modify their recommendations, even to the point of ignoring them.
Fifthly, he is just a private individual who has been appointed to a private body by functionaries of a private organisation. He has as much power and authority as the chairperson of the local school Parent & Community Association, or the local Footy Club[6].
Sixthly, as a Tribunal member he should observe the requirements of the Discipline Ordinance 2006 which provides that the Tribunal hearings are open to the public unless there is a good and proper reason to exclude them. This is a fundamental requirement of justice – that it be seen to be done because injustice breeds behind closed doors[7]. And especially so in this present case before the Tribunal. Even the proceedings of the Royal Commission into Institutional Responses to Child Sex Abuse are public; the anonymity of victims is preserved by pseudonyms, but the transcript of the evidence is published on the Commission’s Website.
Seventhly, he and his co-members had made an ‘order’ under the Discipline Ordinance 2006 suppressing publication of the details of the names of the complainants and details of the charges. As I wrote in a previous post: why bother? Who can this order be binding on? Well, no-one in reality – there is no provision for enforcement of the order, and compliance or non-compliance should be irrelevant to whether the complainants have made out a case for the respondent to answer and for proper consideration of his defence. But even were there enforcement options it could only bind the respondent himself as a party to the proceedings. The Respondent’s wife and family members are free to talk about it. I am free to write and talk about it and I do so. The woman is free to write and talk about it. Her husband is free to write and talk about it. The co-Tribunal members are free to write and talk about it.
This is how it should be to ensure that there is appropriate scrutiny; to ensure that people behaving badly cannot continue to do so without being exposed to the harsh glare of public opinion.
What about the other Tribunal members?
So what were other people doing while this display of verbal abuse and empty threats was taking place?
In the case of the woman’s husband he tried to argue that the hearing was open to the public according to the Discipline Ordinance 2006 and he was shouted down for his pains. No, said the Deputy President, that clause only applied to the final hearing and not to a directions hearing. This is not true. No such distinction is made in the Ordinance.
The respondent and his wife were appalled but could do nothing.
Nothing was said to protect her by the Director of the PSU Lachlan Bryant and his barrister, deputy Chancellor of Sydney diocese Michael Easton who were also in the room. And yet, the Director PSU Lachlan Bryant is directly responsible for protecting vulnerable persons from abuse. And yet again, the barrister Michael Easton should take responsibility as a lawyer and a Christian to prevent just such outbursts against a private individual who was not doing anything wrong.
But most disappointingly absent was any protest by the other two members of the Tribunal or any attempt by them to protect the woman from this bullying and intimidation. These two members comprise the token woman, who is also a barrister, Mrs. Victoria Brigden and the token clergyman the rev. Mark Charleston. I use the word ‘token’ not to denigrate their role but to highlight the prescribed structure of the Tribunal membership: three people of which one must be a woman, one a clergyman[8] and one at least must be a lawyer.
When I was studying Law at Sydney University in the late 1960’s (and admitted to the Supreme Court of NSW in 1970) I was one of only a small handful of women. In the Women’s Common Room in the Law School building at the time there were some very uncommon women, including Mary Gaudron, later Judge of the High Court of Australia[9] and Helen Coonan, later Federal senator for NSW and Cabinet Minister, to name just two of the women with highly developed social consciences.[10] Later, through membership of what is now called the Young Lawyers’ Committee of the Law Society of NSW I was involved in the early days of the Redfern Legal Centre and the development of Legal Aid both initiated by another committee member, Terry Purcell.
The Women Lawyers Association had been formed and it was taking active steps in a social agenda for the benefit of women. Women lawyers spoke out fearlessly in respect of injustice and discrimination against women caught up in the justice system.
So what has happened to the legal profession that a woman barrister would not speak up to stop the bullying and intimidation of another woman who was doing no wrong? What has happened that a woman barrister/member of the tribunal would not remind the Deputy President that the Discipline Ordinance 2006 (Sydney diocese) does not make any reference to a directions hearing being closed to any member of the public.
Likewise the clergyman. What has happened to the clergy that a clergyman would not intervene to put a stop to blatant bullying and intimidation of a woman? Jesus was always very courteous to women (even more surprising to His followers in the culture of their day than now), a fact that some Sydney Anglican clergy would do well to remember and to emulate. What has happened to courage and Christian principles in the face of this sort of behaviour?
What happened next?
Finally the woman who was verbally abused by this man was forced to give an undertaking that she would not give a copy of her notes to anyone other than her husband. I doubt that this undertaking could possibly be appropriately enforced against her. She is not a party, but even if she were a party the Deputy President of the Tribunal has no power to enforce undertakings because this is not a court. Also, an undertaking wrung out of someone by means of a threat to eject the person from the hearing room is hardly an undertaking given willingly, rather like a ‘confession’ wrung out of a person by lies, intimidation and torture: it cannot be relied on in any process that acknowledges the rule of law (such as an Australian court), only in a place where there is merely a travesty of justice.
And in any event the notes should also be made available to the respondent and his wife who were in the hearing room. She gave no undertaking that would prevent her speaking to me. Neither her husband nor the respondent and his wife suffered a similar choleric threat of ejection from the hearing room if they did not give a similar undertaking.
And of course the Tribunal does not have any power and authority over her whatsoever.
So she had to suffer being singled out in this most intemperate, and ultimately futile, fashion. In the first draft of this article I wrote: ‘It does not auger well for a principled hearing and a just and true decision when the case finally reaches that stage.’ Nothing that has happened in the interim has provided proper cause to alter that opinion.
What was the Hon. Acting Judge Peter Young AO QC angry about?
Because of his insistence on secrecy I can only conclude that he was angry about my articles and the articles and appeals written by Drew and Pippa published on my website[11].
However, surely this was not his problem. It is a problem for the diocesan officers – particularly Sydney PSU director Mr. Lachlan Bryant (bringing the ‘charges’ against Drew), the diocesan Registrar (originally Dr. Philip Seldon but now Mr. Douglas Marr) and the diocesan Chancellor Mr. Michael Meek and his second deputy Mr. Michael Easton – as well as a problem for the first complainant and his solicitor who had already threatened defamation action against me[12] for one of my blog posts and against Drew and Pippa[13] for their blog posts published on my website.
Is it possible that the Deputy President was acting on ‘instructions’ from one or more of these people when he launched such a vicious attack? Surely he cannot have thought that he had any power or authority to carry on in this fashion? Surely he had to have realised that he was not making a valid legal point supported by legislation? And if he did realise this, then what was a man of his reputation and stature carrying out what could only be described as a choleric attempt to intimidate?
He gave the solicitor for the respondent an undertaking to provide written reasons for his decision to make the woman’s attendance in the hearing room contingent on her giving such an undertaking. This has not happened. If that occurred in a State Court the refusal of a Judge to honour his or her obligation to give reasons for a decision would be a matter for a complaint to the Attorney-General.
All of this raises deep concerns about the validity, transparency and probity of the church Tribunal process being administered in this case: he has clearly demonstrated a close personal alignment with the diocesan ‘case’ and with the complainants to the extent that he personally cannot control his temper when the futile attempts to impose secrecy on the proceedings are challenged. He has unleashed his anger on a woman unconnected with the case, and unconnected with any writing about it. He is risking his personal reputation just because legitimate questions have been asked – about the PSU director’s competence (now admitted to be at fault in this case) and bullying, about the bona fides of the complaints, and about a great many problems with the PSU case let alone the Tribunal process.
The issue of his bias looms large in relation to his pre-judgment of the issues and certainly the strong indications of his alignment with the interests of the diocese[14].
Who was she?
It happened that the women singled out for verbal abuse and threats is Machelle Dobbs. You can read about what she and her children suffered at the hands of self-described Christians in the articles on this website about the Figtree Affair[15]. When she was telling me about this latest example of behaviour by such people she said a surprising thing. She said: ‘It was a very healing experience.’ What did she mean? Well, in her heart of hearts she had cherished the idea that the Christians involved in the Sydney Anglican church organisation and in Figtree Anglican Church would eventually behave appropriately as Christians, repent of their behaviour and apologise, so that there could be Christian reconciliation.
This experience with a man who has had a distinguished career and who had been rewarded by a grateful society for his contribution, amongst others, to the Anglican Church extinguished that entirely unrealistic hope.
Postscript
In the successive directions hearings in September and December 2014 a number of highly respected members of the Anglican Church attended on Drew and Pippa’s invitation to observe the proceedings. The Deputy President still sought to extract promises not to reveal what had gone on in the directions hearings. Although the Deputy President moderated his behaviour somewhat in the September directions hearing, he was back on form in the December directions hearing. Several of these people made indignant representations to the Archbishop of Sydney the Most Rev. Glenn Davies about the Tribunal and what they described as the lack of Christian process.
By that time, of course, some 21 statutory declarations had been filed from concerned supporters of Drew and Pippa – many of whom had also been members of the youth group when Drew was youth minister. One flatly contradicted the major piece of complainant 2’s ‘evidence’, supporting Drew’s denial. Many others praised Drew for his devotion to the youth group and demonstrated how similar activities with Drew as those that complainant 1 was complaining about had worked well for their benefit and growth to Christian maturity. One related a conversation with complainant 1 when he admitted that he never thought that there was any sexual element to Drew’s conduct.
There had been a series of almost comic (if it were not so serious) back-downs by the PSU director Lachlan Bryant: in the initial meeting with Drew and Pippa he and his co-intimidator, Peter Barnett, accused Drew of child sex abuse; when it came to authorising an announcement to the relevant parish about Drew, there was no mention of child sex abuse, but ‘grooming’; when it came to drafting the charges to be brought against Drew in the Disciplinary Tribunal, there was no mention either of child sex abuse or grooming: he found he did not even have the evidence to bring such charges and he has had to fall back on ‘disgraceful behaviour that caused or, if known at the time, would have caused a scandal’. Clearly, in the light of the large number of former youth group members supporting Drew with their statutory declarations, this charge is not going to succeed either.
All of which leaves complainant 1 under the suspicion of neurosis and/or making a false and malicious complaint and complainant 2 of being a liar. For all the Deputy President and Mr. Charleston in several of the directions hearing have been talking about the need for pastoral work with the complainant(s) to enable the case to be concluded by agreement, there is no real way out of this dilemma. A good outcome for the complainant(s) has been clearly an impossibility from the very start.
This, above all is not the case for the Deputy President and the other two members of the Disciplinary Tribunal to risk their reputations for.
In Part 2 I examine the Deputy President’s own commentary on the deficiencies of the process and how he has used these to try to intimidate the respondent and his legal team into simply ‘walking away’ from the Tribunal proceedings. As it happens this has been a case of ‘You wish!’ Why should the PSU and the diocesan officers, as well as their invited ‘consultant’, Peter Barnett, be let off the hook for their incompetence and/or bullying and/or unprofessional and/or lying behaviour? And why should the members of the Professional Standards Committee be let off the hook for their collective stupidity in recommending that the case be referred to the Disciplinary Tribunal, thereby binding the Archbishop of Sydney to doing that in the teeth of his pleas that they do not do so?
[1] Louise Greentree BA LLB LLM(Hons) ProfCertArb Admitted to the Supreme Court of NSW and to the High Court as a solicitor(now retired). Former partner of Sydney city firm of solicitors. Lately law academic with special interest in Legal Professional Conduct, Alternative Dispute Resolution and restorative processes. Professional training includes Real Justice Restorative Conferencing and Collaborative Law.
[3] See my post ‘More about the Anglican Disciplinary Tribunal’ 28 July 2015 on www.churchdispute.com
[4] See my post ‘What happened on 23 and 24 April 2015’ on www.churchdispute.com
[5] I give the deputy President his title as it stands in his secular occupation. In the Disciplinary Tribunal he is not a Judge and he is not entitled to be addressed as one.
[6] In fact, although blunt, this probably overstates his position. He probably has even less than those two functionaries. And they have to administer a democratic process.
[7] As we have seen with the deliberations of the Professional Standards Committee of the Sydney Anglican Church in this case as well as earlier ones (all to be dissected in a later article in this series).
[8] In Sydney diocese the member of the clergy will be male.
[9] The Hon. Mary Gaudron had a brilliant career as a woman of keen intelligence. She won the Sydney University Medal for Law (recognition of outstanding academic results) and she was admitted to the Bar in 1968. During her career she was appointed Queen’s Counsel, Solicitor General, a Federal Court Judge, and to the High Court as the first female Justice. As such she was one of the majority of the High Court who decided in favour of the landmark Mabo case.
[10] Helen Coonan was active in the Women’s Electoral Lobby, which initiated the campaign against domestic violence and was responsible for the setting up of refuges for battered women and their frightened children. This campaign completely changed the attitude of society, particularly the Police to domestic violence.
[11] He had already granted a ‘suppression order’ to conceal the names of the two complainants on the basis of a statutory declaration by Lachlan Bryant annexing a copy of the article ‘Honi Soit qui Mal y Pense: Shame on those who think evil of it’ which was written by Drew and published on www.churchdispute.com . Yet this article did not disclose the names of the complainants but used their initials.
[12] See ‘Shooting the Messenger’ on www.churchdispute.com
[13] See ‘Our lives are shattered and now we are to be sued!’ by Pippa on www.churchdispute.com
[14] This will be discussed, with examples, in the next article in this series: ‘It’s a funny thing about the Disciplinary Tribunal of the Anglican Church of Australia Sydney Diocese: Part 2 ‘Drew and Pippa are warned about faults in the Disciplinary Tribunal process’; and Part 3 ‘Drew and Pippa are warned that they cannot obtain justice from the Disciplinary Tribunal.’
[15] In particular see ‘A Mother’s Story’ on www.churchdispute.com