It’s a funny thing …
About the Sydney Anglican Disciplinary Tribunal
Part 2
Drew & Pippa are warned about faults in the Disciplinary Tribunal process.
By Louise Greentree[1]
Introduction
It’s a funny thing about the Sydney Anglican Disciplinary Tribunal. The Deputy President has been much at pains to warn Drew that there are potential faults in and difficulties with the Disciplinary Tribunal process that means that the case cannot, and, most certainly should not ever go to a hearing.
In each of the four directions hearings in Drew’s case so far it has been the Deputy President the Hon. Acting Judge Peter Young AO QC who has been speaking 99 per cent of the time. Tribunal member, barrister and the ‘token’ female member Mrs. Victoria Brigden has ably supported him in the first two in May and July 2014, but she has been unavailable for the last two in September and December 2014. The ‘token’ clergyman, the rev. Mark Charleston has been largely silent after contributing the ‘opening prayer’ and a ‘closing prayer’, but he has been present at all four directions hearings.
It is surprising that all three members have been present for two of the four directions hearings and that even for the last two Mr. Charleston has been present also because it is permitted, and indeed normal, for just the Deputy President to deal with these. His explanation of all three members being present at the first directions hearing is this: that it is a matter of courtesy and because ‘we (who is ‘we’? The Tribunal members or he and Mr. Easton and/or Mr. Marr?) thought there may be some other issues that may need be – ‘[2] But even though he acknowledges at this the first of the directions hearings that he can deal with the directions hearings alone, yet at each of them at least one other member has been present. Perhaps the rev. Mr. Charleston is the only person thought capable of opening the proceedings with prayer, whenever the Deputy President pauses in his onslaught on the respondent’s legal team and remembers to call for prayer.
Five Issues that militate against a proper process in the Disciplinary Tribunal
There have been five different issues that the Deputy President himself has raised. These are raised on the basis that the Disciplinary Tribunal process is unreliable but he has raised them mainly to force the respondent (but not the PSU) to bring the matter to a close without having to go to a hearing. The issues are these:
- That it is a waste of time and money when the Tribunal can only make a recommendation to the Archbishop, who can make an executive order in those terms or any other executive order that he sees fit, even without a Tribunal hearing. (Tick) Therefore, Drew should simply ‘walk away’. (Perhaps the Deputy President is a little ingenuous: surely it is unlikely that if the tribunal members actually found that the case should be dismissed the Archbishop would not act on this recommendation.)
- That the case could be brought to an end if Drew entered into an undertaking not to seek work in the diocese. (No tick)
- That Drew cannot clear his name with the Tribunal hearing. He needs to go to the Supreme Court to do this. (Tick)
- That the Disciplinary Tribunal may not even have jurisdiction, due to the ambiguity (read, incompetence) of the drafting of the Ordinance. (Tick)
- That running the case for the respondent would be so stressful that it would destroy the respondent (what the Deputy President called ‘the Rumpole effect’). (Partial tick)
I will now look at each of these in more detail:
One: that it is a waste of time and money when the Tribunal can only make a recommendation to the Archbishop, who can make an executive order in those terms or any other executive order that he sees fit, even without a Tribunal hearing. (Tick)
From the very first directions hearing, Acting Judge Peter Young QC AO has been aggressively vocal in criticising Drew for not just ‘walking away’ from the Tribunal proceedings. On several occasions he has commented that it was a waste of money and time to run the case because the Tribunal can only make recommendations; however the Archbishop can simply make an executive order in those terms, or any other terms that seem fit to him. In this he has been ably supported by Ms. Brigden until she absented herself due to the imminent arrival of her child. She has not yet returned to take her place on the tribunal.
This approach of Acting Judge Peter Young AO QC is a trifle disingenuous: it was the recommendation of the Professional Standards Committee (PSC) to the Archbishop that he refer the case to the Disciplinary Tribunal, and this recommendation the Archbishop was obliged to act upon by the provisions of the Discipline Ordinance 2006, even although he did not wish to do so and begged the PSC members NOT to put him in that position. In the event he only did so after what seemed to Drew and Pippa to be an unconscionable period of time (they were unaware then of the behind-the-scenes manoeuvres). The recommendation was made by the members of the PSC in a secret ‘hearing’ attended only by Lachlan Bryant (whose conduct in this case I and others have trenchantly criticised) producing ‘evidence’ the probity of which is seriously compromised by Lachlan Bryant’s and Peter Barnett’s behaviour in the first interview (see earlier posts about this, particularly ‘For the Lawyers’).
If Drew did walk away, then in his absence the Disciplinary Tribunal would able to make findings and recommendations to the Archbishop that bear no relation to the reality of the facts of the case. Despite the absurdity of making a finding of fact that it constituted disgraceful conduct in a youth minister to offer to buy complainant 1 a pair of Speedo swimmers that were on sale to replace his old ones that were on the verge of unwearable – an offer that the mid-teenager accepted and provided size details to enable the transaction to proceed – and that had it been known at the time it would have caused a scandal (because there is no evidence from the complainant that it did cause a scandal) this is what they would be capable of doing, and not only that, this is one of the things they would have to do.
And in any event why would Drew walk away when he and his wife had worked so hard for over 12 months trying to get the diocesan officers to take seriously his complaints of bullying and harassment as well as lies and misinformation by Lachlan Bryant and Peter Barnett? Why walk away when they have been trying to find someone with responsibility for what was done to them in the first two meetings with Lachlan Bryant and Peter Barnett to re-open the case that had been so ruthlessly and dishonestly brought against Drew?
In adopting this approach the Deputy President is all too clearly ‘acting’ in concert with the PSU director and barrister, and in the interests of the diocese rather than in the interests of justice, and certainly not out of concern for Drew and Pippa. This is because under the Discipline Ordinance 2006 the diocese itself has to pay out a little over $40,000 towards the respondent’s legal costs of defending the ‘charges’ as well as legal costs of its’ own.
In fairness, the Deputy President does add the rider to this comment to the effect ‘unless he (Drew) wants to clear his name’. However, other comments also convey the sub-text that such an objective in this case would be unlikely to be successful, not least because of the alignment of the members of the Tribunal with the PSU case that is even clearer in the other reasons offered to persuade Drew to walk away.
Second: That the case could be brought to an end if Drew entered into an undertaking not to seek work in the diocese.
This would imply an admission of guilt, but Drew has not done anything wrong – none of the actions complained of are in themselves scandalous; nor are they against the criminal law, nor are they immoral, or are they prohibited by the Bible, nor harmful (notwithstanding complainant 1’s feeble attempts to cite some harm – feeling uncomfortable, and not happy about his wife massaging his legs!) nor sexual (even the complainant has to admit that). The actions, without evidence of abusive or sexually abusive intent, are harmless and do not infringe ecclesiastical law.
Also this would exceed the penalty that the Archbishop would be likely to impose in the unlikely event that the facts of this particular case did constitute disgraceful conduct by a youth minister that caused (or if known would have caused) a scandal – a ban of 5 years. So why submit to a greater penalty?
Drew has not done anything wrong other than in the strange, highly subjective and, dare we say it, surely neurotic world of the first complainant[3].
Third: That Drew cannot clear his name with the Tribunal hearing. He needs to go to the Supreme Court to do this. (Tick).
Yes, and for these additional reasons apart from the powerlessness of the Disciplinary Tribunal: because of the demonstrated bias towards protecting the diocesan reputation; prejudging the case (although Mr. Easton, barrister for the PSU, should have corrected the Deputy President when he did this); and using intimidatory tactics to try to warn Drew off against proceeding in the Tribunal.
It is indubitably the case that Drew could start proceedings in the Supreme Court of NSW if he wishes to have a fair and just assessment of the case, with a right of appeal to senior judicial officers[4], and to obtain an award of money for the damage to his reputation and his loss of earnings: he could sue complainant 1 for defamation, as well as Lachlan Bryant and Peter Barnett as a start.
There would be significant benefits to the diocese if he did this. By commencing those proceedings the Tribunal process would be ‘frozen’ until the Supreme Court case was completed. Also, the cost to the diocese would be suspended: the diocese maintains insurance to run these cases. The legal costs and any judgment in Drew’s favour would be paid by the insurer.
The officers and senior clergy of the diocese could wash their hands of the case, saying that it was out of their hands, and they would not be held responsible for the anti-Christian way in which the case would be conducted. The Archbishop could say with good conscience that he could not offer comfort, wise counsel and any admission or apology because the terms of the insurance policy prohibited this.
The insurer’s lawyers would use the usual tactics to try to break Drew financially and drain him of the will to proceed, and then offer a mediation to settle the case on the best terms for the insurer – that is, for the least amount of money.
Additionally, both complainant 1 and complainant 2 would get short shrift by the insurer: the case would be dispassionately assessed. There would be no counselling or pastoral work with them once the insurer decided what the best financial outcome was for the insurer.
There would be another issue also that the Supreme Court administration would have to resolve: the involvement of the Deputy President in the diocesan case while sitting on the Tribunal would be of concern when he is a colleague of all the other Supreme Court judges, and it would be necessary for the sake of the appearance of justice that a judge independent of these be ‘imported’ to hear the case.
And beside all this are two other objections: firstly: that Drew would require a substantial amount of money available to pay legal costs, which he does not have – indeed very few individuals have. Even if he did obtain a favourable judgment, the amount of costs payable by the insurer for the diocese would not go near covering all his costs.
The second objection is more serious for the reputation of the church: as reported by Matthew in chapter 5 verses 23-25 Jesus counsels believers as follows:
23 “Therefore, if you are offering your gift at the altar and there remember that your brother or sister has something against you, 24 leave your gift there in front of the altar. First go and be reconciled to them; then come and offer your gift.
25 Settle matters quickly with your adversary who is taking you to court. Do it while you are still together on the way, or your adversary may hand you over to the judge, and the judge may hand you over to the officer, and you may be thrown into prison.”
The injunction contained in clause 24 is repeated in An Australian Prayer Book and the Book of Common Prayer before it, in the Exhortation contained in both the announcement of the intention to administer Holy Communion and the preamble to the administration of Holy Communion[5].
Believers often take the view that they should not take secular court proceedings against other believers. They base this view on Paul’s First Letter to the Corinthians Chapter 6 verses 1 – 6, commencing –
If any of you has a dispute with another, do you dare to take it before the ungodly for judgment instead of before the Lord’s people?
It is important to be absolutely clear that any activity by a church worker that allegedly breaks the criminal law MUST be reported to the Police for investigation and prosecution. The church tribunals should not interfere with the secular legal process or attempt to act in substitution for it. But in relation to other activities that are not against the criminal or even the civil law but which may be against God’s law, the church has an obligation to provide people with an unbiased process of unimpeachable integrity to enable these words of Jesus to be complied with. The process of the Disciplinary Tribunal, quite apart from the way it can be seen to be in operation in Drew’s case, goes nowhere near fulfilling this obligation[6].
Fourth: That the Disciplinary Tribunal may not even have jurisdiction, due to the ambiguity (read, incompetence) of the drafting of the Ordinance. (Tick)
Yes – this may be so in Drew’s case. Certainly the Deputy President was urging the respondent’s legal team to make submissions to this effect so that he could make a decision, either in favour of jurisdiction, or against it – which would have the benefit of getting the case out of the Tribunal and left stranded without any avenue for redress within the church system.
Fifth: That running the case for the respondent would be so stressful that it would destroy the respondent (what the Deputy President called ‘the Rumpole effect’). (Partial tick.)
But is this not the fault of the incompetent, inadequate, burdensome and ultimately futile process created by the drafters of the Discipline Ordinance 2006? Would he not have redress against those people as well as others involved in the case – indemnified by the ‘diocese’ – for post-traumatic stress disorder?
Would not publication to the faithful of the diocese by the observers of Drew’s case of their horrified revulsion of what Drew and Pippa have been put through so far cause the reputation of the diocese for hardheartedness to be further confirmed?
Would not this cause disenchantment among the faithful?
Would it not seep out into the secular world, where people will nod their heads sagely and say: ‘Well, what can you expect from the church? It not only abuses children and protects the guilty it harasses the innocent.’
So who is responsible for this mess?
It is a mess and an obnoxious, abusive and expensive mess at that. The Deputy President clearly sees that as Drew’s problem. Drew complained about the abusive, lying and bullying behaviour meted out to him by Lachlan Bryant and Peter Barnett and tried to find some way in which to require the church to take responsibility. What he got was a compounding of the abusive process.
The real problem lies not in Drew and Pippa’s hard-fought campaign for truth and justice in this case. The responsibility for the mess lies, firstly, in the inability of the diocese to provide a process of integrity to deal fairly and in a Christian manner with complaints where there is no question of any secular criminal offence. And secondly it lies with the people who allowed the case to be dealt with in the diocese at all – for this Peter Barnett and Lachlan Bryant have to bear major responsibility.
It is sad that although some major faults leading to manifest injustice of the Disciplinary Tribunal process are so clearly delineated by the Deputy President, he, who has sat on so many Sydney diocesan committees and who could have urged a review of the process many years ago, has not done so. And nor has successive Chancellors and deputy Chancellors of the diocese. These good Christan men need to front up to the challenges of ensuring that the organisation behaves in a Christian manner in all these aspects of its’ operations and honours God as the God of truth and justice, compassion and mercy.
Endnotes:
[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.
[2] He breaks off at this point. As stated at first directions hearing on 25 May 2014.
[3] It may seem that I am ignoring complainant 2: but his complaints have been largely a misguided attempt to ‘shore up’ the otherwise unsupported complaints of complainant 1. When complainant 1 sent his messages to former members of the youth group inviting them to support him in his complaints to the PSU no-one except complainant 2 emerged. On the other hand more than 21 people emerged to support Drew and deny complainant 1’s complaints.
[4] Not available under the Discipline Ordinance 2006 – such limited ‘right’ of appeal that is provided for is to an ‘experienced lawyer’.
[5] The Exhortation in the announcement of the intention to administer Holy Communion:
‘We must thank our heavenly Father that he has given his Son our Saviour Jesus Christ, not only to die for us, but also to be our spiritual food and sustenance in that holy sacrament. This so divine and strengthening a thing to those who receive it worthily, and so dangerous to those who presume to receive it unworthily, that it is my duty to exhort you, in the meantime, to consider the dignity of that holy mystery and the peril of unworthily receiving of it, so that you may come holy and clean to such a heavenly feast.
The way to prepare yourselves is to examine your lives by the rule of God’s commandments, and wherever you see you have offended in will, word or action, there to repent and confess your sin to God with full purpose of amendment of life. And if you think you have injured not only God but also your neighbour, then you must ask his forgiveness as well, and make good, to the full extent of your ability, any injury or wrong that he has suffered at your hands.’
The Exhortation in the section titled The Lord’s Supper (First Order):
‘You, then, who truly and earnestly repent of your sins, and are in love and charity with your neighbours ..‘
The Second Order of Holy Communion provides in the Preparation for the Lord’s Supper for the same words to be read.
[6] There is a fatal flaw at the heart of the decision to setup a Disciplinary Tribunal to deal with criminal acts as well as the ‘sins’ of church workers who are not ordained: this is the desire to keep these discipline issues under the control of the church, out of the spotlight of unwelcome publicity, particularly those concerning child abuse and child sex abuse and related issues.