Recent Developments in Relation to Mandatory Reporting by Persons in Religious Ministry

Published
04 June 2020

The Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) made a number of recommendations to seek to improve institutional responding and reporting of child sexual abuse. Those recommendations included expanding mandatory reporting laws to apply to “people in religious ministry” (Recommendation 7.3).

The Royal Commission also recommended that “laws concerning mandatory reporting to child protection authorities should not exempt persons in 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” (Recommendation 7.4).

A number of Australian states and territories have implemented, or are in the process of implementing, laws to include people in religious ministry as mandatory reporters to child protection authorities and to remove the exemption in relation to information disclosed in or in connection with a religious confession.

 

What is Mandatory Reporting?

The Royal Commission (in its Final Report) defines a “mandatory reporter” to be “a person who is required by either state or territory legislation to report known and suspected cases of child abuse and neglect to a nominated government department or agency (typically the child protection authority)”.

Mandatory reporters are required by law to report suspected child abuse and neglect to government authorities. In practice, the mandatory reporter usually reports their suspicion/belief of child abuse to the relevant state or territory child protection authority. For example, in New South Wales, mandatory reporters will generally make a report to the New South Wales Department of Communities and Justice by calling the Child Protection Helpline.

The term “mandatory reporting” does not refer to the requirement to report to other bodies, such as the Police.

 

Recent Developments

There have been some recent developments in some states and territories to include religious ministers as mandatory reporters and remove the ‘religious confession exemption’ which we outline below.

 

Western Australia

On 28 November 2019, the Western Australian Government introduced the Children and Community Services Amendment Bill 2019 (WA) to introduce mandatory reporting of child sexual abuse for ministers of religion by amending the Children and Community Services Act 2004 (CCS Act).

Under the Bill, a minister of religion (defined broadly) is required to make a report to the Department of Communities if they form a reasonable belief that a child has been or is being sexually abused. A fine of $6,000 will apply if this law is not followed. This gives effect to recommendation 7.3 of the Royal Commission’s Final Report.

The Bill amends the CCS Act will to also exclude as an excuse for failing to make a mandatory report the fact that a minister’s belief was based on information disclosed to that minister during a religious confession, or because making the report would otherwise be contrary to the tenets of the minister’s faith or religion. This gives effect to recommendation 7.4 of the Royal Commission’s Final Report regarding religious confessions.

The Bill had its second reading on 21 May 2020 in Western Australia’ Legislative Council (upper house) and the mandatory reporting sections are expected to commence on proclamation. The announcement of when the amendments will come into effect can be followed on the WA Parliament website.

 

South Australia

The Children and Young People (Safety) Act 2017 (SA) has included a minister of religion as a “mandatory notifier” since 19 December 2017. Under section 31 of the Act , if a mandatory notifier 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 carries a maximum financial penalty of $10,000.

On 13 May 2020, the Statutes Amendment (Mandatory Reporting) Bill 2020 (SA) was introduced into South Australia's Legislative Council (upper house) as a private member’s bill by the Hon Connie Bonaros MLC.

The Bill seeks to amend the Children and Young People (Safety) Act 2017 (SA) to require a priest or other minister of religion who forms a suspicion in the course of carrying out their duties (including in the course of a confession made in accordance with the rules and usages of the relevant religion) that a person has committed a prescribed sex offence to notify a police officer of that suspicion as soon as practicable after forming the suspicion. This seeks to give effect to recommendation 7.4 of the Royal Commission’s Final Report regarding religious confession.

The proposed commencement date is not yet known, however the progress of the Bill can be followed on the SA Parliament website.

 

New South Wales and the Australian Capital Territory

In New South Wales religious ministers became mandatory reporters on 1 March 2020. Section 27 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) was expanded to include a person in religious ministry or a person providing religion based activities to children (e.g. minister of religion, priest, deacon, pastor, rabbi, Salvation Army officer, church elder, religious brother or sister).

On 28 March 2020, ministers of religion in the ACT were added to the list of “mandated reporters” set out in section 356 of the Children and Young People Act 2008 (ACT). In the ACT, there are serious penalties for not making the mandatory report as soon as practicable after forming the belief (the current maximum penalty is $8,000 and/or imprisonment for six months).

Additionally, in the ACT, a person who is, or was a member of the clergy of a church or religious denomination is not entitled to refuse to make a mandatory report because it contains information communicated to the member during a religious confession.

 

Other Jurisdictions

It was anticipated that religious ministers in Queensland would become mandatory reporters with the introduction of the Child Protection and Education Legislation (Reporting of Abuse) Amendment Bill 2017 (Qld) in March 2017 by the Queensland Government. The Bill has since lapsed without passing, and religious ministers are therefore not currently mandatory reporters in Queensland.

As outlined in our previous article, “persons in religious ministry” became mandatory reporters in Victoria in September 2019 and the ‘religious confession exemption’ was also removed.

While Tasmania and the Northern Territory have not introduced laws to make religious ministers mandatory reporters, a previous article outlines that there are other reporting requirements that may require a religious minister to report child abuse or neglect. For example, in the Northern Territory, section 26 of the Care and Protection of Children Act 2007 (NT) 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.

 

What Should Schools Do?

If your school has a religious minister (however defined) providing services to students, your school's child protection and registration policies and procedures will need to be reviewed, including any relevant training for those staff/contractors.

Karen Zeev

Karen is a Legal Research Consultant at CompliSpace. Karen recently completed three years working at the NSW Ombudsman and the Office of the Children’s Guardian as a Senior Investigator in employment related child protection. Karen also spent three years at the Royal Commission into Institutional Responses to Child Sexual Abuse as a Senior Legal and Policy Officer and was a key contributor to the “Redress and Civil Litigation” and “Criminal Justice” reports. Karen has worked as a commercial litigation lawyer both in the private and public sector and holds a bachelor’s degree in Arts/Law (Hons).