This is the first part of a two part series exploring the link between religious confessions and child protection reporting. Part one considers responses to the Royal Commission's recommendations concerning religious confessions, and assesses how they are dealt with under the laws of Australian jurisdictions. Part two analyses how Australian law interacts with Church law, and outlines how the Royal Commission's recommendations may be reconciled by religious institutions and schools.

Over half a year on from the Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission), and issues concerning child protection legal changes and achieving institutional child safety continue to be a key subject of media reporting, and at times, fierce intellectual and public debate.

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. The Royal Commission heard evidence of various instances of both victims and perpetrators discussing abuse during confession. From this evidence, 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.

Government Responses to the Royal Commission’s Recommendations

Under section 116 of the Australian Constitution, it is stated that the Commonwealth shall not make laws for, among other things, prohibiting the free exercise of any religion. However, according to the Royal Commission, no law has ever been struck down on the basis of this section, and it does not apply to the laws of the Australian states.

All jurisdictions have now issued formal responses to the Royal Commission. However, responses in relation to confession recommendations are inconsistent and it is currently unclear who is ultimately responsible for determining whether Australia's child protection legal framework should be adjusted to reconsider the special religious significance of the confession.

The Federal Government’s response indicated that 'failure to report' laws were subject to further consideration, but that removing a confession exemption from mandatory reporting laws was a matter for state/territory governments. Most jurisdictions have accepted the changes in principle, but indicated that further discussion between Australian jurisdictions would be needed before legislative change progresses. In WA, Child Protection Minister Simone McGurk has stated that clergy should be required to report abuse and be subject to the same relevant disclosure laws as other professionals.

The ACT will also consult on the recommendation as part of its work on the Reportable Conduct Scheme, with allegations disclosed in confessions specifically excluded from the scheme until 31 March 2019 to allow time for consultation to occur (but indications at this stage are that confessions will eventually be captured by the Scheme).

Queensland in particular has clarified that change is contingent upon national approaches and final determinations regarding national consistency in mandatory reporting laws.

The NT has stated that further legislative reform in this area is being considered as part of the development of a single Act to replace the Youth Justice Act 2005 (NT) and the Care and Protection Act 2007 (NT).

The South Australian Exception

South Australia is poised to become the first Australian jurisdiction to legally compel clergy to report allegations or disclosures of child sexual abuse that are received during confessions, when laws introduced in 2017 come into effect on 22 October 2018.

The Children and Young People (Safety) Act 2017 (the Act) passed Parliament on 6 July 2017. The Act was introduced to be the central piece of legislation in a new SA child protection framework. Refer to previous School Governance articles on the Act and the new framework here and here.

Under section 31 of the Act, if a mandatory reporter suspects on reasonable grounds that a child or young person is, or may be, at risk, and that suspicion was formed in the course of their employment, they must report that suspicion as soon as reasonably practicable after forming the suspicion. Failure to report will carry a maximum financial penalty of $10,000.

Mandatory reporters are taken to include ministers of religion and employees/volunteers of religious or spiritual organisations. There are exemptions in place, such as if the person reasonably believes that another person has reported the matter appropriately, but there is no exemption for the religious confession.

The Situation in Other Jurisdictions

While this makes SA the first state to specifically identify priests as mandatory reporters, in reality, disclosures made during confession may already be covered under other laws in other jurisdictions. For example, in the NT, section 26 of the Care and Protection of Children Act requires that every person must make a report to the Department of Children and Families or the Police when they believe that a child has been or is likely to be the victim of child abuse, neglect or a sexual offence. A person who fails to do so is guilty of an offence, with a maximum penalty of 200 penalty units (currently over $28,000, in effect making NT more financially compelling than the new SA Act).

Courts have also demonstrated that they will hold the clergy to account under child protection laws, even if the intent of the individual is to protect the religious institution. Archbishop Philip Wilson was recently convicted and sentenced to 12 months' imprisonment by a NSW Local Court for concealing child sex abuse. While it is unclear whether the nature of the confession was considered in the decision, one of the victims alleged that they had told Wilson about being abused by a priest while in a confessional box.

In other jurisdictions, the significance of the confession has been upheld. Mandatory reporters do not include ministers of religion, unless they would otherwise be captured as mandatory reporters, such as if they were also a teacher.

Victorian laws provide an interesting example of how the significance of the confession is implemented under legislation. Under section 327 of the Crimes Act 1958 (Vic), there is a legal obligation on all adults to make a Police report if they form a reasonable belief that a sexual offence has been committed against a child under 16 years of age by an adult, with a maximum three years’ imprisonment for a failure to report. However, it will not be a contravention if the relevant information would be privileged under the Evidence Act 2008 (Vic) - section 127 states that a member of the clergy is entitled to refuse to divulge that a religious confession was made, or the contents of a religious confession.

The variances between in the statutory laws applicable to religious confessions may leave many institutions, particularly religious schools, uncertain as to the current and future scope of their child protection obligations. Ultimately, this may mean confusion about how best to protect children.

About the Author

Kieran Seed is a Legal Research Consultant and School Governance reporter. He can be contacted here.