Religious confessions and child protection reporting

The variances 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.

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 Commission

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.

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.

Kieran Seed is a Legal Research Consultant and School Governance reporter

This is an extract from his article which originally appeared in School Governance on 5 July 2018. To read in full: