The Australian Catholic Church released its response to the Royal Commission (Response) last week, a combined effort of the Australian Catholic Bishops’ Conference (ACBC) and Catholic Religious Australia (CRA). ACBC president Archbishop Mark Coleridge and Sister Monica Cavanagh, the president of CRA, represented 150 religious orders when releasing the Response, with the Response having been completed after consultation with the Vatican.

Background to the ACBC and CRA Response

Of the 189 recommendations made by the Royal Commission, 80 were either directly or indirectly related to the Catholic Church and its ministries, with the majority of these being agreed to in the Response. Thirteen of the recommendations made by the Royal Commission were referred to the Holy See for more action, four of the recommendations were only "accepted in principle" and one recommendation, namely Recommendation 7.4 requiring mandatory reporting in connection with a religious confession, was not accepted.

The Royal Commission also recommended a national review of the governance and management structures of dioceses and parishes to allow transparency, accountability and the involvement of lay men and women. Archbishop Mark Coleridge and Sister Monica Cavanagh stated that:

“Our response to these recommendations is not to be about mere compliance. It is at the heart about ensuring that the safeguarding of children and vulnerable adults will be integral to everything we do in the Church, every activity, every ministry.”

Together with the Response, the four-volume report from the Truth, Justice and Healing Council was also made public last week and this informed much of what is contained in the Response.

Child Safe Standards

In Recommendation 6.5, the Royal Commission identified 10 Child Safe Standards that are essential for a child safe institution. These standards are intended as best practice to guide institutions to drive cultural change. The Standards are:

1. Child safety is embedded in institutional leadership, governance and culture.
2. Children participate in decisions affecting them and are taken seriously.
3. Families and communities are informed and involved.
4. Equity is promoted and diversity respected.
5. People working with children are suitable and supported.
6. Processes to respond to complaints of child sexual abuse are child focused.
7. Staff are equipped with the knowledge, skills and awareness to keep children safe through continual education and training.
8. Physical and online environments minimise the opportunity for abuse to occur.
9. Implementation of child safe standards is continuously reviewed and improved.
10. Policies and procedures document how the institution is child safe.

For the Royal Commission recommendations 16.31 to 16.54, relating to providing the Child Safe Standards as nationally mandated standards for each of the Catholic Church's affiliated institutions, the Response referred to a 15 December 2017 media release, in which Catholic Professional Standards Limited (CPSL) stated that “CPSL will be developing new standards to protect children and vulnerable people across the Catholic Church. It will also audit and publicly report on the compliance of each Church leader, including bishops and congregation leaders, against these new national standards and existing statutory standards.”

According to the Truth, Justice and Healing Commission Report (Volume 3), the non-profit company CPSL, will develop, audit and report on compliance with professional standards by Catholic service providers and Church entities including to:

• create comprehensive standards nationwide for application by providers
• audit compliance by each authority with the new standards, and
• promote education and training on the new standards.

CPSL is functionally independent of the Church and, according to the Truth, Justice and Healing Commission, represents a dramatic change to the accountability of bishops and congregational leaders. The National Catholic Safeguarding Standards have been in draft stages for approximately 10 months but are expected to be rolled out towards the end of 2018.

Voluntary Celibacy

Recommendation 16.18 of the Royal Commission was to consider introducing voluntary celibacy for Catholic diocesan clergy. The Response has committed to this recommendation, informing the Holy See in relation to relevant changes to Canon Law. The Royal Commission indicated in its report that, based on research, there was an elevated risk of child sexual abuse where compulsorily celibate male clergy or religious have privileged access to children in certain types of Catholic institutions, including schools, residential institutions and parishes. The Royal Commission continued (at Page 47 of the Royal Commission Report) that:

"For many Catholic clergy and religious, celibacy is implicated in emotional isolation, loneliness, depression and mental illness. Compulsory celibacy may also have contributed to various forms of psychosexual dysfunction, including psychosexual immaturity, which pose an ongoing risk to the safety of children. For many clergy and religious, celibacy is an unattainable ideal that leads to clergy and religious living double lives, and contributes to a culture of secrecy and hypocrisy. This culture appears to have contributed to some clergy and religious overlooking violations of celibacy and minimising child sexual abuse as forgivable moral lapses committed by colleagues who were struggling to live up to an ideal that for many proved impossible."

The Response stated that despite the Royal Commission making no finding of a causal connection between celibacy and child sexual abuse, nevertheless, there was a "dark side" to celibacy and it may have contributed to a heightened risk of child sexual abuse. Celibacy became a contributing factor to a culture in which abuse and inappropriate handling of complaints was common. The Catholic Church is seeking expert theological and canonical advice about the influence of celibacy on decision-making, attitudes and behaviours of individuals in the Church culture, as voluntary celibacy "is a long established and positive practice of the Church".

Convictions for Child Abuse

Recommendations 16.55, 16.56 and 16.57 of the Royal Commission relate to any person in religious ministry (16.55 and 16.56) and any person attending any religious services or activities (16.57) who is subject to a complaint of child abuse, substantiated on the balance of probabilities, or convicted of an offence relating to child sexual abuse. These recommendations suggest the Catholic Church takes all necessary steps to assess and manage the risk of the religious' ongoing involvement in the religious community, prohibit the person from holding themselves out as having religious authority and (in related Royal Commission Recommendation 16.52) to stand down a potential offender from any practice of public ministry while investigations are undertaken. In the case of conviction, the Royal Commission recommended dismissal from the priesthood or dispensing with their vows as religious. The Response has accepted in principle both recommendations regarding any person in religious ministry and accepted the recommendation regarding lay-people.

Importantly, the Response referred the matter of dismissal from the priesthood or dispensation from their vows as religious to the Holy See, with a recommendation that, without leaving the offender unsupported and isolated from their faith, it was important to remove them from their access to public ministry.

Archbishop Coleridge said that “far too many” clergy, religious and lay people within the Church in Australia had “failed in their duty to protect and honour the dignity of all including and especially the most vulnerable, our children and our young people," with Sister Monica stating that the church had already started to change a number of practices including in the screening and formation of people training to be priests or religious brothers or sisters.

Sacrament of Penance (Confession)

Perhaps the most contested issue that arose from the recommendations of the Royal Commission is the status of religious confessions in mandatory reporting and ‘failure to report’ laws. From the evidence provided, the Royal Commission drew the conclusion that the importance of protecting children from abuse is such that no exemption should exist for clergy from reporting offences in relation to information disclosed in, or in connection with, a religious confession.

Two of the Royal Commission’s recommendations relate specifically to the legal status of the confession. The first was that each state/territory government should ensure that the criminal offence of ‘failure to report’ (a law recommended by the Royal Commission) should specifically address religious confessions, including by excluding any excuse, protection or privilege in relation to religious confessions to the extent necessary to ensure its effective application.

The second was that laws concerning mandatory reporting to child protection authorities should not exempt persons in a religious ministry from being required to report knowledge or suspicions formed, in whole or in part, on the basis of information disclosed in or in connection with a religious confession.

As discussed in our previous article, the Sacrament of Penance (confession) is a sacrament of the Catholic Church and everything that takes place during confession is considered secret. This is known as the Seal of the Confessional. Within the scope of Canon Law, priests are not allowed to reveal what the confessor has said to the priest during the confession, or even if the confessor had been to confession at all. It is also stipulated that anyone else who happens to overhear a confession, such as an appointed interpreter, is also required to maintain the seal. The penalty for violating the Seal of the Confessional is excommunication (expulsion from the Catholic Church). This is the ultimate sanction for a priest, and reportedly would only be reversible by the Pope himself. Penalties for breaching the seal have existed for many hundreds of years, with priests previously commenting that they would rather go to prison than to break the seal and risk excommunication.

The one recommendation not accepted by the Response was Recommendation 7.4 which recommended not exempting persons in religious ministry from being required to report knowledge of child abuse. The Response stated that "We are committed to the safeguarding of children and vulnerable people while maintaining the seal...We do not see the seal as mutually exclusive."

The Response has, however, committed to commissioning research on the subject by the Holy See's Implementation Advisory Group with particular reference to:

• the seal of the confessional and the theology of the child
• improvements to training of clergy on the sacrament of confession
• the operation of the sacrament and how it would apply to confessions by a perpetrator or a child that had been abused, and
• the extent to which legislation for mandatory reporting would be inimical to freedom of religion.

What does this mean for schools?

Schools and their staff are already subject to child protection reporting laws, with many jurisdictions also imposing an organisational duty to protect children from abuse. The creation of a child safe environment and introducing a comprehensive child protection training regime for staff are two crucial ways in which schools can ensure that they are continuously complying with child protection laws.

These legal requirements also exist for schools that have a religious or spiritual focus, in particular, Catholic schools. They will have additional obligations if the clergy are uniformly added to the list of mandatory reporters. But, as stated by Archbishop Coleridge, child safety and sacramental integrity need not be mutually exclusive concepts.

The best approach for these schools before advice is received from the Holy See is to assess and determine where their obligations lie with respect to both Australian child protection laws and Canon Law, and implement a Child Protection Compliance Program that accounts for all compliance requirements (both statutory and under Canon Law). This program should clearly identify the scope of employee obligations, including those who are mandatory reporters. By taking these steps, schools with a religious or spiritual focus will be better positioned to respond to any legislation resulting from recommendations of the Royal Commission, increasing their capacity to uphold both child safety and religious sanctity.