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Published online by Cambridge University Press: 11 December 2014
On 1 July 2014 the General Synod of the Anglican Church of Australia passed the Canon Concerning Confessions 1989 (Amendment) Canon 2014, which creates a further exception to the confidentiality of a confession. Under this further exception, a member of the clergy is only required to keep the confession of a ‘serious offence’ confidential where reasonably satisfied that that the penitent has reported the serious offence to the police and, if the penitent is a church worker or a member of the clergy, to the Director of Professional Standards (section 2A(2)). In moving this Bill, I argued that the fundamental theological principle to which it gave expression is that the safety of the members of the Church and the public should be of paramount concern when considering the issue of the confidentiality of confessions, and that accordingly confessions must not operate as a cloak for the concealment of serious criminal offences.
1 Available at <http://www.anglican.org.au/governance/Documents/Canon%2011%202014%20-%20Canon%20concerning%20confessions%201989%20%28Amendment%29%20Canon%202014_for%20website.pdf>, accessed 20 August 2014.
2 A similar provision is found in Constitution 21 of the Fourth Lateran Council in 1215 which relevantly provides: ‘Let him take the utmost care, however, not to betray the sinner at all by word or sign or in any other way. If the priest needs wise advice, let him seek it cautiously without any mention of the person concerned. For if anyone presumes to reveal a sin disclosed to him in confession, we decree that he is not only to be deposed from his priestly office but also to be confined to a strict monastery to do perpetual penance.’
3 Prior to 24 August 1981 the name of the Church was the Church of England in Australia.
4 Available at <http://www.anglican.org.au/governance/documents/canons/canon%201992-10%20confessions.pdf>, accessed 17 July 2014.
5 Royal Commission into the NSW Police Service, ‘Final Report, volume IV: the paedophile inquiry’, para 3.20, available at <http://www.pic.nsw.gov.au/OtherReportsAndPublications.aspx>, accessed 6 August 2014.
6 Report of the Clergy Discipline Working Group, available at <http://www.anglican.org.au/governance/commissions/documents/professional-standards/bisclergydisciplinereport2001.pdf>, accessed 17 July 2014.
7 Available at <http://www.anglican.org.au/general-synods/Pages/synod_proceedings_2001.aspx>, accessed 17 July 2014.
9 Earlier provisions for mandatory reporting of child abuse in New South Wales did not apply to ministers of religion: Child Welfare Act 1939 (NSW), s 148B; Children (Care and Protection) Act 1987 (NSW), s 22(2), (3).
10 The persons who are required to report suspected child abuse and neglect, along with applicable statutory provisions in each jurisdiction, are listed in the document ‘Mandatory reporting of child abuse and neglect’, available at<http://www.aifs.gov.au/cfca/pubs/factsheets/a141787/>, accessed 29 July 2014. A detailed examination of these statutory provisions and their predecessors is contained in the report Mandatory Reporting Laws for Child Sexual Abuse in Australia: a legislative history, available at <http://www.childabuseroyalcommission.gov.au/research/research-program/published-research>, accessed 20 August 2014.
11 Children's Protection Act 1993 (SA), s 11(4).
12 Crimes (Public Justice) Amendment Act 1990 (NSW), s 340.
13 Crimes Act 1900 (NSW), s 316.
14 Ibid, s 4.
15 Crimes Act 1958 (Vic), s 326; Criminal Code (Qld), s 133; Criminal Code (Tas), s 102; Criminal Code (WA), s 136; Criminal Code (NT), s 104.
16 Crimes Act 1958 (Vic), s 327, as enacted by the Crimes Amendment (Protection of Children) Act 2014 (Vic) which commenced on 27 October 2014.
17 Available at <http://www.dpc.nsw.gov.au/announcements/scoi_child_sexual_abuse_allegations_in_the_hunter_region/release_of_report_of_special_commission_of_inquiry_into_matters_relating_to_the_investigation_of_certain_child_sexual_abuse_allegations_in_the_catholic_diocese_of_maitland-newcastle>, accessed 30 July 2014.
18 Available at <http://www.anglican.org.au/general-synods/2014/Documents/books/Book%205%20-%20for%20website_with%20links.pdf>, accessed 17 July 2014.
19 Evidence Act 1995 (Cth); Evidence Act 2011 (ACT); Evidence Act 1995 (NSW); Evidence (National Uniform Legislation) Act 2011 (NT); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic).
20 Heydon, J, Cross on Evidence (ninth Australian edition, Chatswood, NSW, 2013), para 25315Google Scholar; McNicol, S, Law of Privilege (Sydney, 1992), pp 324–328Google Scholar; Elliott, D, ‘An evidential privilege for priest–penitent communications’, (1994) 3 Ecc LJ 272–298Google Scholar at 273–274, 281 and the cases, texts and reports cited therein. Thompson, A, Religious Confession Privilege and the Common Law (Leiden, 2011)CrossRefGoogle Scholar, argues that the privilege existed before the Reformation and has not been abrogated or extinguished.