Friday, 13 September 2019

Breaking Open the Confessional

It's been a long week, and in the midst of it came the news that a Bill with a bland title had been passed by the Legislative Council.  In due course, the Governor will provide royal assent and it will become law.

The bill in question is called the Children Legislation Amendment Bill 2019.  It amends a number of Acts, but the one that leaps out at me as problematic are amendments of the Children, Youth and Families Act 2005 (CYF Act) and the Evidence Act 2008.

Image from here
The text of the bill can be found here.  Once its amendments are made, sections 182 and 184 of the CYF Act will relevantly read as follows -
Section 182 - Who is a mandatory reporter?
(1)   The following persons are mandatory reporters for the purposes of this Act— ...
   (ea)     a person in religious ministry;... .

Section 184 - Mandatory reporting
(1)     A mandatory reporter who, in the course of ... carrying out the duties of his or her office ... forms the belief on reasonable grounds that a child is in need of protection ... must report to the Secretary that belief and the reasonable grounds for it as soon as practicable ...

Penalty:     10 penalty units. ...

(2A)    To avoid doubt, a person is not exempt from the requirement to report under subsection (1) merely because the information would be privileged under section 127 of the Evidence Act 2008. ...

This amendment dovetails with section 327 of the Crimes Act 1958.  This section relevantly provides that
Section 327 - Failure to disclose sexual offence committed against child under the age of 16 years 
(2)     ... a person of or over the age of 18 years (whether in Victoria or elsewhere) who has information that leads the person to form a reasonable belief that a sexual offence has been committed in Victoria against a child under the age of 16 years by another person of or over the age of 18 years must disclose that information to a police officer as soon as it is practicable to do so, unless the person has a reasonable excuse for not doing so.

Penalty:     3 years imprisonment. ...
This all seems fairly unremarkable, and perhaps even desirable, until we come to the amendments to the Evidence Act.  Post-amendment, section 127 of that Act now relevantly reads as follows -
Section 127 - Religious confessions
(1)     A person who is or was a member of the clergy of any church or religious denomination is entitled to refuse to divulge that a religious confession was made, or the contents of a religious confession made, to the person when a member of the clergy.

(2)    Subsection (1) does not apply— ...
   (b)        in a proceeding for an offence against section 184 of the Children, Youth and Families Act 2005; or
    (c)    in a proceeding for an offence against section 327(2) of the Crimes Act 1958. ...

(4)     In this section, "religious confession" means a confession made by a person to a member of the clergy in the member's professional capacity according to the ritual of the church or religious denomination concerned.
The effect of this is hopefully tolerably clear: in cases falling under the CYF Act or the Crimes Act, a priest may now be prosecuted for failing to maintain the seal of the confessional.  In these cases, a cleric is to be obliged to violate a sacrament and to excommunicate himself.  One who dies in such a condition has no hope of salvation.  It is difficult to imagine a more fundamental attack on a faith (the Minister who steered the legislation through Parliament claimed it applied to a range of faiths, although it's fair to say that nobody seriously thinks it was aimed at anyone except Catholics)

Regrettably, section 116 of Australia's Constitution offers little protection at all.  In relevant part, it says that "The Commonwealth shall not make any law ... for prohibiting the free exercise of any religion".  Leaving aside the question of whether s.116 applies to State legislatures, the High Court long ago emptied the section of most of its force.  As Griffith CJ put it in Krygger v Williams (1912) 15 CLR 366 -
To require a man to do a thing which has nothing at all to do with religion is not prohibiting him from a free exercise of religion. It may be that a law requiring a man to do an act which his religion forbids would be objectionable on moral grounds, but it does not come within the prohibition of sec. 116, and the justification for a refusal to obey a law of that kind must be found elsewhere. 
I remember my long-ago lecturer in Criminal Law went through a thought experiment where he demonstrated that virtually any law, even of the most 1984-esque type, could be rationalised as being for the protection of children. Seeing this attack on the practices of one denomination in particular, I have to agree.

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