Royal Commission's latest findings to receive prompt attention from General Synod
Recommendations on confession, protection of minors from abuse released as Church's national parliament prepares to meet
By Mark Brolly
August 16 2017
The national parliament of the Anglican Church, General Synod, is to consider legislation on confession at its meeting in Queensland early next month, only three weeks after the Royal Commission into Institutional Responses to Child Sexual Abuse recommended that failure to report child sexual abuse in institutions, including information given in religious confessions, be made a criminal offence.
The Royal Commission released its report on criminal justice on 14 August and made 85 recommendations, including one to make failure to protect a child within an institution from a substantial risk of sexual abuse by an adult associated with the institution a criminal offence.
General Synod, which is to meet at Maroochydore on the Sunshine Coast from 3-8 September, is also due to consider legislation covering child protection, removal of persons from ministry, episcopal standards and the Church’s National Register of complaints, findings and admissions made by clergy or lay people within the Church of child abuse or adult sexual misconduct.
The proposed legislation was drawn up before this week’s report was published but follows commitments made by Church leaders to the Royal Commission at the Anglican “wrap-up” hearing in March, at which Commission Chair, Justice Peter McClellan, and his fellow Commissioners pressed Church leaders on the importance of a consistent national approach to child abuse.
At one stage of the hearing, Justice McClellan told former Primate, Archbishop Phillip Aspinall of Brisbane: “You can assume that the six Commissioners are of one mind: there should not be inconsistency of approach to these issues in one part of Australia different to another. That's as much in your Church as it is in any other Church.
Melbourne’s Archbishop Philip Freier, who as Anglican Primate of Australia will chair next month’s General Synod, told the Commission hearing: “I think that as Primate I can commit to the Commission that I will expend my best energy between now and the General Synod seeking to gather the support for the proposals which will be about uniform child protection going to the General Synod.
“I think that we're in an uncomfortable place, as has been widely discussed here at the Commission, but I think the intention is for us to drive the highest standards we can and some of it might be a bit messy getting there. I hope we can get there at our General Synod in September.”
At its previous meeting, in Adelaide in 2014, General Synod approved church legislation providing that a clergyperson was only obliged to keep the confession of a serious offence such as child sexual abuse secret if he or she was reasonably satisfied that the penitent had already reported the offence to police.
Archbishop Freier said at the time: "We want those people to see as part of their true repentance that they need to be accountable for their behaviour and have made a disclosure to police. So we're all for people seeking the amendment of their life, the confession of their sins and embracing proper accountability for their offending behaviour.
"We want to do all that we can do to make sure that child-sex abuse has no place in Australian society or in the Church."
The Royal Commission report released on 14 August said it had been told there was a question as to the validity of the 2014 legislation, which amended the 1989 Canon Concerning Confessions.
“We heard that, at the time of our case study, the 2017 General Synod of the Anglican Church of Australia intended to revisit the issue by voting on a canon expressly removing the seal of confidentiality over confessions of child sexual abuse and related matters.”
Sydney barrister and senior Anglican layman, Mr Garth Blake SC, told the ABC on 15 August that Anglicans had a right of private confession but that “at least around the issue of child sexual abuse, there should be no absolute obligation or confidentiality attaching to a confession”.
The Commission’s report said Commissioners had considered whether clergy should be exempt from reporting information about child sexual abuse received through religious confession, and that they had understood the significance of religious confession, particularly the inviolability of the confessional seal to people of some faiths, such as Roman Catholics.
“However, we heard evidence of a number of instances where disclosures of child sexual abuse were made in religious confession, by both victims and perpetrators,” the report said.
“We also heard evidence that the practice of religious confession is declining, at least in the Catholic Church. However, it remains possible that information about child sexual abuse held by people associated with a relevant institution is communicated to a priest hearing a religious confession.
“Submissions to the Royal Commission argued that any intrusion by the civil law on the practice of religious confession would undermine the principle of freedom of religion. In a civil society, it is fundamentally important that the right of a person to freely practise their religion in accordance with their beliefs is upheld.
“However, that right is not absolute. This is recognised in article 18 of the International Covenant on Civil and Political Rights on the freedom of religion, which provides that the freedom to manifest one’s religion or beliefs may be the subject of such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
“The right to practise one’s religious beliefs must accommodate civil society’s obligation to provide for the safety of all and, in particular, children’s safety from sexual abuse. Institutions directed to caring for and providing services for children, including religious institutions, must provide an environment where children are safe from sexual abuse. Reporting information relevant to child sexual abuse to the police is critical to ensuring the safety of children.
“Our inquiry has demonstrated that there is significant risk that perpetrators may continue with their offending if they are not reported to police. Reporting child sexual abuse to police can lead to the prevention of further abuse. In relation to religious confessions, we heard evidence that perpetrators who confessed to sexually abusing children went on to reoffend and seek forgiveness again.”
The Commission recommended that each state and territory government should ensure that the legislation it introduced to create the criminal offence of failure to report should apply in relation to knowledge gained or suspicions that were or should have been formed, in whole or in part, on the basis of information disclosed in or in connection with a religious confession.
“The legislation should exclude any existing excuse, protection or privilege in relation to religious confessions to the extent necessary to achieve this objective,” the recommendation said.
“Religious confession should be defined to include a confession about the conduct of a person associated with the institution made by a person to a second person who is in religious ministry in that second person’s professional capacity according to the ritual of the church or religious denomination concerned.”
The Commission said that unlike a duty to report, a duty to protect was primarily designed to prevent child sexual abuse rather than to bring abuse that had occurred to the attention of the police.
“Many of our case studies reveal circumstances where steps were not taken to protect children in institutions,” its report said. “These include examples where persons were allowed to continue to work with a particular child after concerns were raised, and they continued to abuse the particular child. They also include examples where persons who had allegations made against them were allowed to continue to work with many other children and they went on to abuse other children. In some cases, perpetrators were moved between schools or other sites operated by the same institution.”
The Anglican Church’s Royal Commission Working Group submitted that: “Any criminal offence in relation to a failure to report should acknowledge the difference in responsibilities between those of institutional officials and those of family members or support persons to whom the abuse is disclosed.
“It should allow a survivor to disclose their abuse to a support person, who is not an institutional representative or subject to mandatory reporting obligations, without that person having any obligation to report.”
It also stated that some dioceses had determined that their employees and office-holders would act as mandatory reporters even if mandatory reporting legislation did not apply to them.