This article is more than 6 years old

This article is more than 6 years old

The Vatican's representative in Australia is claiming diplomatic immunity in response to repeated requests for documents that might assist the NSW inquiry into child sex abuse.

Copies of correspondence released by the commission this week reveal the diplomatic stand-off between the papal nuncio, Archbishop Paul Gallagher, and the chair of the special commission of inquiry, Margaret Cunneen SC.

The Cunneen inquiry was established last November to investigate sexual abuse by two priests of the Maitland-Newcastle diocese, Father Denis McAlinden and Father James Fletcher (both deceased), following allegations made by a NSW police whistleblower, chief inspector Peter Fox.

The NSW crown solicitor's office made the request on Cunneen's behalf on 30 August and again on 22 October, asking for copies of any relevant documents held in the archives of the Apostolic Nunciature in Canberra or the Congregation for the Doctrine of the Faith (CDF) in Rome.

Similar requests have been sent to directly Cardinal Gerhard Müller, prefect of the CDF, but there has been no reply.

The documents sought relate to "any allegations, complaints, suspicions or reports" about child sexual abuse by McAlinden or Fletcher.

Information has also been requested on an incident in 1995, when Australian church officials asked then papal nuncio Archbishop Franco Brambilla to intervene on their behalf with the papal nuncio of the Philippines.

At the time, it had been discovered that McAlinden was operating as a priest in a remote diocese in the Philippines, despite having had his priestly faculties suspended by his bishop in Australia.

McAlinden, one of Australia's most notorious paedophile priests, was an Irishman who arrived in Australia in 1949. His diocese of Maitland-Newcastle became aware he was a serious risk to children as early as 1953 but he was moved from parish to parish for more than four decades.

He was also posted to Papua New Guinea for extended periods and briefly to New Zealand.

McAlinden was charged in Western Australia in 1992 but acquitted and died in 2005 without ever being convicted.

The Crown Solicitor's Office says relevant documents from dioceses in PNG, New Zealand and the Philippines have been made available voluntarily.

The correspondence with Gallagher was released by the commission – which is due to report by February – on Monday as part of a bundle of exhibits.

It shows that on 2 September the nuncio sent an interim response, stating that he was submitting Cunneen's request to his superiors in Rome and would write again soon when he had a reply.

On 13 November he replied again, this time directly to Cunneen.

Gallagher reminded the commissioner that his office was "the high diplomatic representative of the Holy See to the Commonwealth" and cited "the protections afforded by international agreements, including the Vienna Convention on Diplomatic Relations".

Article 24 of the 1961 Vienna Convention states that the archives and documents of a diplomatic mission "shall be inviolable at any time and wherever they may be".

The nuncio’s response said article 24 "thus states a high principle of international relations without which diplomatic missions would no longer be able freely to carry out their domestic and international responsibilities".

He said his office would be pleased to consider "specific requests" for information, "bearing in mind the expectation that it would not be appropriate to seek internal communications".

On 14 November the NSW crown solicitor, Ian Knight, wrote to Gallagher for a third time.

Knight said his earlier requests for information had been specific and asked Gallagher to clarify his statement about "internal communications".

"As you may appreciate, if this is intended to refer to communications within the Holy See, or within the Church generally [that is, between the Diocese of Maitland-Newcastle or the Holy See] or as between the Apostolic Nunciature of Australia and the Holy See, it is respectfully suggested that such restriction may significantly impair the utility of the request for the documentation," he wrote.

Giving evidence to Victoria's state parliamentary inquiry into child sexual abuse on 27 May, Cardinal George Pell gave a personal guarantee that "every document the Vatican had" would be made available to the commission.

The cardinal said he had been assured of this by a senior Vatican official.

"We have said that we will co-operate fully with the royal commission and we mean to," he said.

In his letter Knight reminded the nuncio of Pell’s guarantee and enclosed an extract from the transcript of his evidence to the Victorian inquiry.

"Of course, this commission is separate and distinct from both the royal commission and the Victorian parliamentary inquiry," Knight wrote, "but I trust that the sentiment of co-operation would similarly extend to this Commission's processes."

Gallagher, an Englishman, was appointed to Canberra last December, just weeks after former prime minister Julia Gillard announced the national royal commission into institutional responses to child sexual abuse.

The former nuncio, Archbishop Giuseppe Lazzarotto, had previously been papal ambassador to Ireland. A report into child sex abuse within the archdiocese of Dublin found he had failed to reply to letters requesting documents relevant to that inquiry.

His replacement by Gallagher was widely seen as a sign of Rome’s intention to pursue a more positive approach.