Recent legislative changes in Victoria mean that “persons in religious ministry” will soon be subject to mandatory reporting laws. The laws were passed on 10 September 2019 and will commence on proclamation. In this article we explain the new laws and what they mean for religious schools.
Overview of the Changes
The Victorian Parliament passed the Children Legislation Amendment Act 2019 (Vic) (Amending Act) on 10 September 2019. The Amending Act made amendments to several other Victorian Acts, including the Children Youth and Families Act 2005 (Vic) and the Evidence Act 2008 (Vic).
Two of the main purposes of the amendments were to:
- include persons in religious ministry as mandatory reporters
- clarify that persons in religious ministry are not able to rely on the religious confession privilege to avoid obligations to report to DHHS Child Protection or police as mandatory reporters, or to the police as adults who must report child sexual abuse.
Who are “persons in religious ministry”?
The new laws define “person in religious ministry” as “a person appointed, ordained or otherwise recognised as a religious or spiritual leader in a religious institution.”
The new laws also list the following examples of “persons in religious ministry”: church elder, deacon, granthi, imam, religious minister, monk, nun, pastor, priest, pujari, rabbi, religious brother or sister and Salvation Army officer.
The new laws define “religious institution” as “an entity that:
- operates under the auspices of any faith; and
- provides activities, facilities, programs or services of any kind through which adults interact with children.”
Under these definitions, a “person in religious ministry” would include a chaplain, priest, minister, brother or nun who works at a school.
Mandatory Reporting Obligations for Persons in Religious Ministry
The Children Youth and Families Act 2005 (Vic) tells us who are mandatory reporters in Victoria for the purposes of reporting to DHHS Child Protection or the police and what they must do. The list of “who is a mandatory reporter” includes medical practitioners, nurses, police officers, teachers and, soon, “persons in religious ministry.”
The new laws mean that the same mandatory reporting obligations that already apply to medical practitioners, nurses, police officers and teachers will apply to religious ministers. In broad terms, the main obligation is this: any mandatory reporter who forms a belief on reasonable grounds that a child needs protection because of physical or sexual abuse, must report their belief to the Department of Human Services.
There are some nuances in relation to this obligation that are worth noting. First, the obligation only applies if the reporter forms their belief while carrying out the duties of their office. So, if a school chaplain is doing their shopping on a weekend and notices a child in need of protection, they probably won’t be subject to mandatory reporting laws.
Secondly, the belief must be “on reasonable grounds.” The Children Youth and Families Act 2005 (Vic) explains that “a belief is a belief on reasonable grounds if a reasonable person practising the profession or carrying out the duties of the office, position or employment, as the case requires, would have formed the belief on those grounds.”
Finally, while children may need protection for many reasons, not all of these reasons will give rise to mandatory reporting obligations. The law says that mandatory reporting obligations only apply if a reporter believes that a child needs protection for certain specified reasons, or “grounds”.
Section 162 of the Children Youth and Families Act 2005 (Vic) sets out all of the grounds, which cover a broad range of harmful events that can affect children, including physical injury, sexual abuse, psychological and emotional abuse and damage to health. However, mandatory reporting only applies to the grounds of physical injury and sexual abuse. Further, mandatory reporting obligations will only apply if the reporter believes that the child has suffered, or is likely to suffer, these kinds of harm and the parents have not protected, or are unlikely to protect, the child from the harm.
Penalty for Breach
Under section 184 of the Children Youth and Families Act 2005 (Vic), the penalty for breaching mandatory reporting obligations is “10 penalty units”, which for the 2019/2020 financial year equates to a fine of about $1,650.
Mandatory Reporting Obligations and the ‘Seal of the Confessional’
In a previous article we looked in detail at the interaction between mandatory reporting laws and the ‘seal of the confessional’. Here we will focus on the impact of the new Victorian laws.
Currently in Victoria there are laws under the Evidence Act 2008 (Vic) that entitle “clergy of any religious denomination” to refuse to disclose what someone said during religious confession. The new mandatory reporting laws explicitly state that these entitlements do not exempt a person from mandatory reporting obligations. This means that if a religious minister hears something during confession that gives rise to mandatory reporting obligations, they must report their concerns – if they don’t, they will be breaking the law.
Criminal Law Reporting Obligations and the effect of the Evidence Act amendments
Section 327(2) of the Crimes Act 1958 (Vic) says that every person over the age of 18 has a responsibility to report child sexual abuse to police. Specifically, the section says that if you are over 18 and you have information that leads you to form a reasonable belief that an adult has committed a sexual offence against a child under 16, you must report that information to police.
That obligation has always applied to persons in religious ministry, as well as everyone else who is over 18. However, just like the situation with mandatory reporting obligations, there was an exemption for members of the clergy who heard the information during religious confession.
The Amending Act removes that exemption. Under the new laws, if a person in religious ministry discovers during confession that an adult has sexually abused a child under 16, they must report this information to police. If they don’t, they will be breaking the law and can be sent to prison for three years.
The new laws will apply retrospectively. In other words, it doesn’t matter when you first discovered that the child needed protection. Even if the discovery was made months before the new laws existed, if you are a person in religious ministry and you still believe that the child needs protection, you must report your concerns.
When Will the Laws Commence?
The Amending Act says that the new laws will commence on proclamation or, if no proclamation is made, on 1 September 2020. As at 18 September 2019, no proclamation has been made.
What this Means for Religious Schools
Religious schools in Victoria should discuss the new laws with all persons in religious ministry who work at the school. This should include informing them of their new obligations as mandatory reporters and providing them with appropriate and ongoing mandatory reporting training.
As part of this process, schools should ensure that religious ministers understand that the ‘seal of the confessional’ does not exempt them from their mandatory obligations or their criminal law reporting obligations, and that the obligations apply retrospectively.
Mark is a Legal Research Consultant at CompliSpace. Mark has worked as a Legal Policy Officer for the Commonwealth Attorney-General’s Department and the NSW Department of Justice. He also spent three years as lead editor for the private sessions narratives team at the Royal Commission into Institutional Responses to Child Sexual Abuse. Mark holds a bachelor’s degree in Arts/Law from the Australian National University with First Class Honours in Law, a Graduate Diploma in Writing from UTS and a Graduate Certificate in Film Directing from the Australian Film Television and Radio School.
Deborah de Fina
Deborah recently completed five years working with the Royal Commission into Institutional Responses to Child Sexual Abuse where she assisted the Royal Commission to establish the Private Session process and subsequently managed its legal aspects. Prior to working with the Royal Commission, Deborah had her own successful consulting practice where she specialised in the statutory child protection system, legal issues facing children and vulnerable people, and legal aid. She also spent more than nine years at Legal Aid NSW, as a child protection solicitor, Senior Solicitor and then Solicitor in Charge, Child Protection. Deborah holds a Juris Doctorate from the Columbia University School of Law, a Master of International Affairs from the Columbia University School of International and Public Affairs and a Diploma in Law from Sydney University.