No One is Above the LawKoffels
No One is Above the Law: Catholic Priests face Fines or Imprisonment if they do not report their knowledge of the abuse of a child as related to them in the act of Confession
The Royal Commission into Responses to Child Sexual Abuse heard extensive evidence of shocking historical sexual abuse in the Catholic Church over a five year period between 2013 and 2017.
In 2017 The Royal Commission handed down their final report which made 409 recommendations.
The recommendations included actions that could be taken at a range of levels by institutions, State and Territory Governments, and the Federal Government.
One area of concern that arose during the Royal Commission was the many instances where a lack of reporting of abuse that had occurred.
Mandatory reporting laws have been in effect across Australian jurisdictions for more than 20 years. Such laws require specified persons, including; doctors, nurses, teachers, police officers, counsellors and youth justice personnel, to report to police any suspicions, or knowledge of child abuse occurring.
The Royal Commission however, identified that religious ministers, priests and alike were not mandatory reporters under existing laws. They also identified that in many instances religious figures had received knowledge of abuse and did not disclose it to any relevant authority. Further, religious practices such as the seal of confession could prevent abuse being reported at all.
In response, the Royal Commission made Recommendation 7.4:
“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.”(1)
It was clear from the recommendations of the Royal Commission that no one is above the law and nothing, including religious practice or law, should stand in the way of the protection of children.
In response to the Royal Commission’s recommendations a number of Australian States and Territories sought to introduce legislation making religious ministers, including priests, mandatory reporters.
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For the Catholic Church, such mandatory reporting could have the effect of forcing priests to break the seal of confession.
The Catholic Church is governed by Canon Law. Under Canon Law the seal of confession cannot be broken.
Canon 983 §1 states:
“The sacramental seal is inviolable; therefore it is absolutely forbidden for a confessor to betray in any way a penitent in words or in any manner and for any reason.”(2)
Under Canon 1388 §1, a priest who directly violates the sacramental seal can be excommunicated from the church and even those who indirectly violate the seal will be punished according to the gravity of the violation.(3)
This issue created a divisive tension between Church and State and received strong rebuke from many within the Catholic Church.
As the nature of confession is that it is private, it is not known the prevalence of confessions of abuse. Statements made to the Royal Commission suggest there are few instances of confessions of such nature being made.
Objectors contend that forcing priests to break the seal of confession will not make children safer.
The Vatican raised their objections, issuing a note stating:
“Any political action or legislative initiative aimed at “breaching” the inviolability of the sacramental seal would constitute an unacceptable offense against libertas Ecclesiae [the religious freedom of the church], which does not receive its legitimacy from individual States, but from God; it would also constitute a violation of religious freedom, legally fundamental to all other freedoms, including the freedom of conscience of individual citizens, both penitents and confessors. Breaking the seal would be tantamount to violating the wretched man within the sinner.”(4)
In October 2018 South Australia was the first State in Australia to remove exemptions for priests from mandatory reporting laws when the Children and Young People (Safety) Act 2017 took effect.(5) Failure to report knowledge of abuse can result in a fine of up to $10,000.
In September 2019, several more States and Territories amended or introduced legislation to remove exemptions for priests and religious ministers.
On 1 September 2019 the Australia Capital Territory legislation came into effect making ministers of religion, religious leaders and members of the clergy of a church or religious denomination mandated reporters.(6)
On 10 September 2019 Victoria passed legislation making religious and spiritual leaders mandated reporters for child protection noting there will no longer be special treatment for churches. (7) Those that do not report abuse face up to 3 years in prison.
Tasmania also amended their legislation in 2019 to include religious ministers as mandatory reporters. They also introduced new criminal penalties with the failure to report knowledge of child abuse to police now resulting in a prison sentence of up to 21 years.
Tasmania’s legislation goes further than most emphasising the communities’ responsibility for the safety and protection of children and requiring anyone who reasonably suspects that a child is or has been abused or neglected must report it to the Child Protection Advice and Referral Service or police.
On 28 November 2019 Western Australia introduced legislation amended the Children and Community Services Act 2004 to extend mandatory reporters to include ministers of religion.(8)
On 29 November 2019 the Council of Attorney Generals met to coordinate the approach to mandatory reporting for ministers of religion and agreed on a set of principles for each State and Territories laws that would result in the requirement of priests to break the confessional seal.(9)
Whilst the Vatican and others may oppose these changes, it is clear the Federal, State and Territory Governments of Australia intend to continue to implement the recommendations made by the Royal Commission into Responses to Child Sexual Abuse and ensure child protection is paramount in Australian society.