Should religious ministers face criminal charges if they fail to report allegations of child abuse? This is the question being debated in Victorian Parliament at the moment.

Victoria is all but guaranteed to pass the legislation, but it won’t go through without some controversy. Melbourne Archbishop’s Peter Comensoli recently announced he’d rather go to jail than break the confessional seal — a tenet of Catholic canon law punishable by excommunication.

So, where does the rest of the country sit on this issue? Is this really such a radical move?

State by state

The question of which states do and do not require ministers to report child abuse is complicated by different legal mechanisms. Some states apply fines and other civil penalties for professionals who fail to report abuse, some also cover “concealing” child abuse under criminal law.

While all states have mandatory reporting laws, not all require religious ministries to report abuse and even fewer cover the seal of confession. This is in part because clergy may be able to turn to separate legislation governing what can and cannot be used as evidence — think, for example, anything you might tell your lawyer.

Notably, in the disparate state of things before the Royal Commission into Institutional Responses to Child Sexual Abuse, only Victoria and NSW reporting laws covered “historic abuse” — i.e. for when a survivor was abused as a child but is now an adult.

Before the royal commission findings in 2017, the Northern Territory was something of the gold-standard; the Care and Protection of Children Act 2007 effectively labelled everyone in the territory a mandatory reporter, including clergy. Come 2017, the territory also legislated to cover historic offences.

However, a separate evidence law still provides a qualified religious privilege for the confessional seal. Basically, while the NT’s mandatory reporting legislation does now cover both priests and the confessional seal, clergy could still turn to the Evidence (National Uniform Legislation) Act 2011 if they refuse to give evidence of information covered in the seal. 

This creates a somewhat confusing overlap, and a Territory Families spokesperson tells Crikey the NT government, along with other state government, is now considering “any necessary changes” to clarify this as part of a Council of Attorneys-General working group, due to report later in the year.

Where are we now?

After the royal commission, South Australia amended state law so that, since October last year, mandatory reporting covers ministers, employees and volunteers of religious groups. The confessional seal exemption has been abolished, and historic abuses are covered.

The ACT has passed similar legislation that will come into effect from September 1 this year. Like the NT, ACT has a new rule whereby everyone in the territory will have to report allegations of child sexual abuse. The sole exception will be for information from survivors who are a) currently adults and b) do not want their allegations reported.

Victoria’s new bills will create both civil and criminal offences, and Tasmania will likely soon follow suit with a current bill before parliament. It’s expected to pass its third reading in the Legislative Council next month. This covers the confessional seal and creates a new crime for failing to report child abuse.

In Western Australia, laws covering religious ministers and confessions are currently being drafted. The legislation is due to be introduced to parliament before the end of the year.

In Queensland, the state’s mandatory reporting laws do not cover religious ministries, despite an apparent attempt in 2017. A government spokesperson tells Crikey the government is currently developing new laws on the issue.

Finally, New South Wales has ramped up criminal charges for cover-ups of historic abuse that include religions ministries. See, for example, Archbishop Philip Wilson’s conviction and subsequent appeal last year.

But, despite individual support from the Attorney-General Mark Speakman, the Berejiklian government has deferred action on the confessional seal to that CAG working group.

Will this do anything?

While targeting the confessional seal was a crucial recommendation of the royal commission, policing the confessional booth is challenging. It’s both difficult to implement and, crucially, against the Vatican’s “canon law”.

With SA legislation less than a year old, the state’s Department for Child Protection says it is currently unable to provide information about the effectiveness of the new laws. 

Retired civil lawyer and royal commission witness Kieran Tapsell argues that changing canon law to allow for independent reporting where no state requirements exist is the most effective way to ensure universal reporting of child abuse takes place.

The Vatican has, since 2010, moved to allow priests to report where mandatory reporting laws exist, but it still refuses to amend canon law around confessions. For priests, breaking the seal can result in excommunication. This can be a big deterrent for willing reporters.

“All this hullaballo about ‘we’re going to go to jail, we’re going to be bloodless martyrs’, can be solved very easily by the Vatican changing canon law,” Tapsell tells Crikey. “But the confessional secret only applies when a perpetrator goes to confession. Firstly, how often does that happen, even amongst priests? Some of them did do it, and some did use it as a way of assuaging their guilt, but others didn’t.”

Anyone seeking help after reading this article can contact Lifeline on 13 11 14 and Beyond Blue on 1300 22 4636. 

Peter Fray

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