Judge Peter Perfect V the Vatican
March 4, 2013
The biggest challenge facing the Royal Commission into the Catholic Church response to sex abuse will be confronting the Vatican's time-honoured secrecy and obstinate bureaucracy, writes Alex Mitchell. Will they gain access to the church's documentation or not?
Justice Peter McClellan, the judicial pre-eminence in charge of the Royal Commission into Institutional Responses to Child Sexual Abuse, will have his legal and diplomatic skills tested many times in the course of his three-year assignment.
His most engrossing challenge will be confronting the Vatican's time-honoured secrecy and obstinate bureaucracy.
Many of the documents critical to the commission's investigation - legal opinions and instructions, case settlements, first-hand testimony and letters of despair - are in files held in the archives of the Eternal City. Another treasure trove is located across Australian dioceses under the control of the Vatican and its representatives.
Will McClellan and his five-member panel, armed with all the powers of a Commonwealth royal commission, gain access to the church's documentation or not?
Much will depend on the next pope and whether he will pursue the global apology strategy of the outgoing Supreme Pontiff, Benedict XVI, who unexpectedly resigned on February 11.
Apart from offering victims and families his sincerest apologies, Benedict also strengthened canon law to compel the church to inform police and other secular authorities of abuse accusations. It was a reform too far for Vatican hardliners and they want to turn back the clock.
It is not surprising that none of the recent commissions of inquiry from countries around the world have managed to penetrate the Vatican's code of sanctified non-disclosure and non-cooperation.
The most recent example of the Holy See's stubbornness came to light during the Irish government's inquiry into the Catholic Archdiocese of Dublin which reported in 2009.
Ms Justice Yvonne Murphy, who headed the three-year inquiry, sent letters to the Vatican, the Congregation for the Doctrine of the Faith and the Papal Nuncio in Ireland seeking information on clerical sex abuse. She also sought details of the Vatican document, Crimen Solicitationis, the Holy See's instructions for investigating and punishing clerics accused of "homosexual, pedophile or zoophile behaviour".
She either received no acknowledgment, no reply or her requests were obstructed.
Following publication of the Murphy report in 2009, the Archbishop of Dublin, Diarmuid Martin, apologised for the church's non-cooperation.
"I regret that this happened in this way," he conceded before adding somewhat enigmatically: "I believe letters should be answered."
Vatican spokesman Father Federico Lombardi joined the debate saying "outside requests" to the Holy See should be made through the appropriate diplomatic channels between states.
"If you are looking for official documents from the Vatican then you have to go through the normal diplomatic channels," he said.
The Vatican's insistence on proper diplomatic protocol means Justice McClellan will be writing to Foreign Minister Bob Carr who will, in turn, communicate with the Vatican authorities in Rome.
Copies of the commission's legally enforceable requests will also be sent to the resident Apostolic Nuncio in Australia, Archbishop Giuseppe Lazzarotto.
As protocol demands, Carr will call upon Australia's ambassador to the Holy See, John McCarthy QC, to seek his intercession with the Vatican over documents relating to sex crimes committed by priests in Australia.
Carr, the former NSW premier (1995-2005), and ambassador McCarthy have been the closest of friends since student days. When Carr was seeking a successor to NSW Chief Justice Murray Gleeson in 1998 he was keen to appoint his chum and personal legal adviser, McCarthy.
The ambitious plan foundered and cabinet unanimously accepted the appointment of Jim Spigelman QC, now chairman of the ABC, whose candidacy was championed by Carr's attorney-general, the late Jeff Shaw QC.
Despite the setback, the strong friendship between Carr and McCarthy endured and prospered: during Carr's post-premier career McCarthy became an ardent supporter of the "Carr for Canberra" campaign. When Carr eventually entered federal politics in March 2012 as a senator with instant elevation to Cabinet and as Foreign Minister, one of his first decisions was to appoint McCarthy to the Vatican post to replace Tim Fischer, the former deputy prime minister.
McCarthy, a seriously devout Roman Catholic, was the candidate "made in heaven", to coin a phrase. Educated at St Bernard's College in the Blue Mountains, a resident at Sydney University's St John's College (Tony Abbott's old stomping grounds), McCarthy holds a papal knighthood, having been appointed Knight Commander of the Order of St Gregory the Great in 2006.
He is a member of the 960-year-old Order of Malta, the fourth oldest religious order in the Catholic Church, whose knights are bound by the vows of obedience, chastity and poverty, and a former president of the Thomas More Society, a fraternity of Catholic solicitors, barristers and judges.
The Order of Malta describes itself as a "sovereign subject" with its own government, magistracy and bilateral relations with 104 countries including Australia. It "issues its own passports and postage stamps and creates public institutions endowed with independent judicial personality".
Before presenting his credentials to Pope Benedict XVI, McCarthy told the Catholic Weekly:
I do hope to follow him [Tim Fischer] in being able to put to the dicasteries and congregations of the Holy See, positions that Australia has on human rights, inter-faith dialogue, food security, peace in our world and region, all areas in which the Holy See has influence.
In the coming months, McCarthy will have the opportunity to pursue Australia's commitment to human rights by gaining access to Vatican records on systematic sexual abuse going back decades.
However, a note of caution: the Irish government enjoyed full diplomatic relations with the Holy See but this didn't facilitate compliance with the three commissions of inquiry it conducted in the 2000s.
If McCarthy is ordered to break the Vatican's protocols of secrecy, evasion and denial, he will face a searching crisis of conscience and faith. Since his admission to the NSW bar in 1978, McCarthy has represented the Roman Catholic Church, its clergy, agencies and institutions in numerous cases before all major court jurisdictions in NSW, the state with an appalling record of sex crimes by priests.
During his 40-year career at the NSW Bar, the Catholic Church was his most demanding and lucrative client.
The Roman Catholic Church has an awesome reputation for outmanoeuvring inquisitive royal commissioners but it may have met its match in the person of Peter McClellan.
He is an old boy of the state school system having attended Normanhurst Boys' High School, known as "Normo", on Sydney's Upper North Shore. He first attracted public attention as counsel assisting the Hawke government's royal commission into British nuclear testing at Maralinga during the 1950s and 60s. The 1984-85 inquiry, under the colourful management of "Diamond" Jim McClelland, infuriated Margaret Thatcher's Tory government and Whitehall by conducting a jaunty media campaign via Fleet Street to embarrass Britain into revealing some of its A-bomb testing secrets.
Since then McClellan has served as Chief Judge of the Land and Environment Court, assistant commissioner of the Independent Commission Against Corruption and is currently on leave from his position as Chief Judge at Common Law.
By a stroke of unusual destiny, Jim McClelland was the first Chief Judge of the Land and Environment Court (1980-85) and Peter McClellan became the fourth (2003-05). In the legal world the royal commissioner is known as "Peter Perfect" because "nothing short of getting the best possible outcome in the public interest was acceptable", as one of his colleagues remarked. He is not a judge who will tolerate the usual "round the houses" on offer from the church or state authorities.
At the start of his Vatican posting, Tim Fischer described his role in typically practical terms:
I am a less than perfect practising Catholic. But I am Australia's representative to the Holy See before I am a Catholic representative.
It is an approach that McCarthy will be called upon to consider as the royal commission grinds into action to uncover the culture that tolerated paedophilia, denied that it was happening or covered it up and then placed the protection of the church before the protection of the innocents.