Under a Bill introduced yesterday, religious and spiritual leaders will be added to law as mandatory reporters, and will no longer have the exemption of the confessional seal.
Additionally, cases dismissed under the previous limitation periods can now be brought , and courts will be empowered to set aside some historical settlements, if it is just and reasonable. Therefore, there may be increased volume of claims and related liability issues.
Religious and spiritual organisations need to consider their ethical stance on the proposed changes, and ensure that policies, and their responses to allegations, are consistent with their ethos and the law. They should also review historical settlements to gauge whether any may be set aside under the new laws or subject of an extension of the limitation period.
It is expected that the Bill will be given priority so that it comes into force as soon as possible.
The Bill
On Wednesday 14 August 2019, the Children Legislation Amendment Bill 2019 (Vic)(the Bill) was introduced by the Andrews Labor Government.
The Bill will enact one of the recommendations by the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission).
Religious and spiritual leaders will join doctors, nurses, teachers, police, registered psychologists and other mandatory reporters as people who are required to report when they form a belief on reasonable grounds that a child is in need of protection.
Significantly, the Bill clarifies that disclosures of abuse made during religious confessions will not be exempt from reports as required under mandatory reporting or the failure to disclose offence.
A power has also been added to allow the Supreme Court to set aside some historical settlements, if it is just and reasonable.
Will it become law?
While the Bill is expected to pass both houses, several prominent religious figures have spoken out against the Bill, including Melbourne’s Catholic Archbishop Peter Comensoli. This article will outline the key provisions of the Bill and our recommendations for organisations in preparation.
Background: The need for change
The seal of confession is regulated under canon law which states that “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.” This was replicated in the Evidence Act 2008 (Vic) and relied on by religious leaders to avoid reporting child abuse disclosures made in confessions, even after the failure to disclose obligation imposed on all adults in Victoria was introduced under the Crimes Act 1958 (Vic).
However, the Royal Commission and several other enquiries into child abuse have highlighted the devastating role the confession can play on ensuring child safety concerns are reported.
A prominent example is the case of Michael McArdle, a Catholic priest who was jailed in Queensland for over 60 instances of child abuse against young boys in 2004. It was revealed that he confessed these instances of abuse to up to 30 priests over 25 years, yet this was never reported to the police.
The Royal Commission also heard case studies where children and survivors had disclosed instances of abuse by priests during a confession and this was never reported. In some case studies, the children were told that they were the ones who had to seek forgiveness.
A small study commission by the Royal Commission of nine priests convicted of child abuse found that the confessional was seen as a ‘safe’ place to confess their abuse and seek forgiveness. The secrecy of the confessional space and the idea of ‘seeking forgiveness’ might have encouraged the abuse to continue and somehow seem permissible.
Laws in other states
Victoria is not the first state to introduce laws which prioritise child safety over the sanctity of the confessional.
We are seeing the first prosecutions taking place in other states such as Western Australia for failing to report offences.
South Australia became the first state in 2018 to legally require clergy to report child sexual abuse, even if revealed in confession. Failing to do so carries a penalty of up to $10,000 and potential prosecution. Similarly, ACT passed laws earlier this year that would require all adult to report child abuse, including priests even if disclosed during a confession.
In both states, the legislative changes were met with resistance from the Catholic Church, including several prominent leaders who vowed to uphold the sacramental importance of the confession notwithstanding the law and potential penalties.
Changes under the Bill
Under the first version of the Bill, the following key changes are proposed:
- Persons in religious ministry will be added as a mandatory reporter under the Children, Youth and Families Act 2005 (Vic);
- Clarifies that persons in religious ministry will not be able to rely on the religious confession privilege in the Evidence Act 2008 (Vic) to avoid the reporting requirements;
- Clarifies that the failure to disclose requirement under the Crimes Act 1958 (Vic) includes an obligation to provide information even if disclosed in a religious confession setting (i.e. the religious confession privilege does not apply);
- Amendment to the Limitations of Actions Act 1958 (Vic) to allow for actions in relation to death or personal injury arising from child abuse to be brought despite being dismissed due to the expiry of a limitation period or settled prior to the removal of limitation periods; and
- Allows for the Supreme Court to set aside certain historic judgments and settlement agreements if it is satisfied that it is just and reasonable to do so.
The Bill also limits the right of appeal to VCAT for persons whose Working with Children Check application is rejected if they’ve been charged a serious sexual offence (Category A offence).
Additionally, it makes clarifications in relation to the Department of Health and Human Services’ (DHHS) role to share information, administer immunisations and protect non-indigenous children who have an Indigenous sibling under the Aboriginal Children in Aboriginal Care program. The Bill further amends the legislation relating to the Child Information Sharing Act and other privacy legislation to align with the above key changes.
Impact on organisations
The legislative changes to capture persons in religious ministry as mandatory reporters and the removal of religious confessional privilege in relating to child abuse reports will be significant for organisations. Failure to comply with the reporting requirements could lead to imprisonment of up to three years under the Crimes Act.
“Persons in religious ministry” is defined to mean a person appointed, ordained or otherwise recognised as a religious or spiritual leader in a religious institution. A religious institution will include any 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. This will capture church elders, priests, nuns, a religious brother or sister, ministers, imams, rabbis, monks and Salvation Army officers amongst others.
Next steps
The introduction of the Bill indicates an ongoing commitment by parliament to continue implementing the Royal Commission’s recommendations. Organisations should heed the message that child safety will continue to be a significant area of change and priority.
We recommend that organisations take the following next steps:
- Child Safety Stance – religious institutions will need to decide what their position on the new Bill will be. This should be decided with board involvement and stakeholder consultation and once decided, communicated to all relevant employees and staff.
- Review policies – in light of the changes under the Bill and the other changes we have seen in the child safety space, it is important that organisations review their child safety policy, code of conduct and reporting procedures to ensure they comply with legislative requirements.
- Consider Risk Strategy on Historical Settlements: consider whether any historical settlements are at risk of being set aside, and take note of the extended limitation period, and the impact on the organisation’s broader child safety strategy, including its participation in the Redress Scheme and risk strategy.
- Responding to allegations – organisation are dealing with an increased amount of child safety allegations, including difficult allegations such as historical allegations and child on child abuse. It is important that organisations are reviewing their processes for responding to these allegations, investigating concerns and training their staff.
Moores will continue to provide updates in relation to the Bill as it progresses through parliament.
How we can help
For more information on preparing your organisation’s response to child safety concerns, please do not hesitate to contact us.