Legislative Council Thursday 15 August 2019

Ms FORREST - Mr President, I thank the Government and commend it for taking this action and being so proactive in it. 

The Leader's second reading speech said many of the things I wish to repeat.  It is important to have a number of things on the record.  All of us cannot remain unaffected by the royal commission held into sexual assault of children.  I also reiterate the Leader's words in sincerely thanking those victims and their families who came forward to give evidence because without them this would not have been uncovered.  I thank organisations involved in the media who blew the lid on some of this. 

I am sure members have watched the film Spotlight, a dramatisation of the work done by The Boston Globe in lifting the lid on these abhorrent sexual assaults of children within the Catholic Church in that area.  As time went on, we heard of more and more cases.  I have made contributions in the past about different aspects of this as they have come through, but I want to comment specifically on the  provisions of this bill.  I also want to thank the people who sat around the table of the royal commission.  It must have been the most harrowing of jobs for those people, totally arduous work.  I am sure they all probably need ongoing support and counselling themselves from having to hear those stories over and over again.

As the Leader said, there 17 volumes in the final report - a large and extensive report - and the commissioner has made 409 recommendations across a wide range of policy areas.  This bill picks up some of those.  Again, I commend the Government for being so proactive and stepping up and doing this.  We know Victoria tabled its legislation yesterday and already the Archbishop of Melbourne has said he would rather be sent to prison than to abide by the seal of the confession.  I will come to that later.

Broadly speaking, the royal commission recommendations aim to prevent abuse or at the very least, identify it as early as possible.  We need to keep these things in mind because this is what this is about.  Improve the way perpetrators are investigated, prosecuted and sentenced - I will come to the way that is achieved in this bill in a moment.  It is to improve survivors' access to justice and ongoing support, which is absolutely critical.  Unfortunately, so many people did not survive this, so many people took their own lives - and the lives it did not take, it completely destroyed.  We do not have to look very far to find accounts of those stories. 

I will make some general comments on a couple of particular issues in the bill.  The bill amends a number of acts.  It amends the Children, Young Persons and their Families Act to include members of religious ministry and members of the Tasmanian parliament as notifiers for the purpose of mandatory reporting of risk to children under section 14 of that act.  As the member for Elwick mentioned in the briefings yesterday, he has been a mandatory reporter in his role as a teacher.  I have been a mandatory reporter in my role as a nurse and sex educator.  While the responsibility where the reporting obligations lie may be slightly different at times, we understand what the role is and the importance of it.  I am sure he will speak to this when he speaks about his own personal experience.

It is absolutely heartbreaking when you have a disclosure and know you have to do something, there is absolutely no question about that.  As has been included in this bill, as members of parliament, we will all become mandatory reporters.  Because of the nature of our work, people come to us.  Possibly it happens more in opposition and to independent members because people are frustrated by the system and they think they cannot go to the government; I do not know.  As an independent member with a health background and a background in sex education and in other areas, I engage in discussions about sexuality, about growing up, about what a good and bad touch is.  That is how I always described it when I talked about it, so little kids could understand what I was talking about.  Of the whole session, that was when they all shut up, they all sat still and they all listened.  That is where sometimes you would get a disclosure - but not right then, it might a bit later, when they would find you in the playground.

I think it is important we lead by example, too.  We are drawn into this, and we act in that way, but because it will be new to many members in both this place and the other - I know the member for Elwick will probably raise this as well - how will the protocols around it be established and managed?  This is a question for the Leader to consider in her response.  What training will be provided to members of parliament to ensure we do it right, that we are not given the run-around, as we heard happens currently when trying to make a notification, and how will our identities be protected?  I say that because it is not we necessarily who are in the firing line, it is our staff.  If someone finds out that you have made a notification - I or any of us here - and they go to our offices to discuss the matter, the staff certainly are the front line because often we are not there.  I would like some clarity around those matters when the Leader replies.

This provision is based on the recommendation of the final report of the royal commission, recommendation 7.3.  This is where it removes the right, if you like, of ministers of religion to rely on confessional privilege.  I will come back to that point.  I want to just talk about the other provisions before I get into the detail of that.

As the Leader said in her contribution, it is for the state to legislate in relation to the safety of the community, and in particular of our children, and that is why this provision has been included.  It was a recommendation in the final report of the royal commission, recommendation 7.4.

The Children, Young Persons and Their Families Act 1997 also seeks to clarify that the identity of notifiers may be provided to law enforcement agencies.  This is where I again raise the issue about our identities potentially being protected, to protect our staff.  I do not have a problem with it being provided to law enforcement agencies because they potentially need to follow it up.  It is how that is dealt with.

The bill also amends the Criminal Code to provide for a new crime of failing to report the abuse of a child.  Again, this is really important.  We saw in the evidence given to the royal commission that reports led to further and ongoing abuse, and failing to report the abuse of a child, even though it may not have been notification from the perpetrator themselves, potentially should also be drawn in.  Again, this removes the sanctity of the confessional, if you like, as a reason not to report that.  I understand the concern of the Catholic Church and I will get to that a little later.

The bill also provides some safeguards for this new kind of failure to report abuse of a child.  They are listed in the bill and in the second reading speech.  I will reiterate those.  The new crime does not apply to information where it is received by a child or by someone from a victim who has attained the age of 18 years and who wants the information to remain confidential.  The person is not guilty of the new crime if the information relating to a child abuse offence was not provided to a police officer, where the information is already generally available to members of the public, and where a person has a reasonable belief that the information has been reported or is known to a proper authority; they believe it has already been notified.  This reasonable belief is well established in law and we know what it means.

Ms FORREST - Mr President, earlier I was talking about some of the safeguards or protections against prosecution under the amendment to the Criminal Code 1924 which provides a new crime of failing to report the abuse of a child.

I have already mentioned two but I will read them in order again.  This new crime of failing to report the sexual abuse of a child or abuse of a child does not apply to information where it is received by a child or by a person from a victim who has attained the age of 18 and who wants the information to remain confidential.  The person is not guilty of a new crime if the information relating to the child abuse offence was not provided to a police officer where information is already generally available to members of the public or a person has a reasonable belief the information has been reported or is known to a proper authority or reporting the information may endanger the safety of any person other than the alleged perpetrator. 

These are entirely appropriate measures to provide protections for the person who is a child themselves, someone who really wants the matter not to be made public and raised when they have attained the age of 18.  The test of reasonable belief is always one that we talk about but it has been tested a number of times.  You would have to have some evidence of why you would believe that the police, or whoever, were aware and have already had a report made to them.

The last thing you want to do is potentially endanger the safety of any person other than the alleged perpetrator.  When I first read through the second reading speech and the bill itself, that was one thing that jumped out at me.  As a member of parliament, if I make a notification that actually puts that family and the victim in more harm, or potentially in the line of harm, there is a real issue there.  Obviously, that is a bit of a judgment call at times.  We know that particularly where there are issues of family violence and things like that, often it is not easy for women to leave.  A notification may need to be made and it goes from then on, and it is going to put someone at risk or potentially at risk.  We have to be really careful about those things.  The last thing we want to do is see further harm.  We know that the most likely time a woman will be killed by an intimate partner is when she makes the decision to leave and as she is leaving.  You could blow something up like this that triggers a need to act, so we need to be cautious in those areas.

This new crime gives effect to recommendation 35 of the royal commission's Criminal Justice Report.  This bill amends the Criminal Code Act 1924 to extend the Tasmanian grooming offence under section 125D of the Criminal Code to include communicators with third parties with the intent to procure a child for unlawful sexual activity or exposure to child exploitation material.  These, again, are measures being put in place following the royal commission's Criminal Justice Report and recommendation 83. 

There are also amendments to the Evidence (Children and Special Witnesses) Act 2001 that will strengthen important protections and assist people to participate in the criminal process.  I will not go through all the information the Leader gave about that and the basis of that recommendation from the royal commission.

The final amendment area is the Sentencing Act 1997, which requires sentencing courts to indicate the sentence that would have been imposed for each offence had separate sentences been imposed when setting a sentence in relation to child sexual abuse offences involving multiple discrete episodes of offending and/or when there are multiple victims.  That is in line with recommendation 75 of the royal commission's Criminal Justice Report. 

That is a really important provision too because it helps the public understand how the decision was made by the sentencing judge.  We did see this with Cardinal Pell's sentencing.  Each charge was stepped out and it really helped the public to understand the mitigating factors that might be taken into consideration and the reasons a particular sentence was imposed.  While there will always be people who say those who abuse children and who are proven to be guilty in a court probably should be locked up and the key thrown away, we do have the courts for a reason.  We have the courts to determine the most appropriate sentence.  Where there are multiple offences - and this is the case this deals with - I think it is helpful for the public to be able to understand the sentencing and why maybe it is not as much as they thought it should have been.  A victim never gets their life back to where it was before.

I want to talk about the opposition to these amendments, particularly removing the sanctity of the confessional, and for a Catholic priest not to be able to fail to report a disclosure of a child sex abuse confession.  I will refer to some of the information that Alex Sidhu gave us when he spoke to us yesterday at the briefing.  It is important to get some of this on the record.

I have been a member of the Catholic Church; I joined the Catholic Church some years ago.  My first husband was a Catholic and I joined the Catholic Church.  I went through the whole process and I found it an odd sort of process in many respects but, you know, there were some good parts to it. 

I had some really good debates with a priest about a number of things and we had quite robust debates on some things, but eventually I found this to be quite a hypocritical place in many respects.  I left that church and I joined another one, the Pentecostal church, and that is where I saw breathtaking hypocrisy such as I had never seen. 

I have my Christian values, my beliefs, my Christian way of living, Christ-like - however you want to describe it - where I care for people.  I always try to do my best for people and care for my fellow citizens.  I stand up for those who are downtrodden; I stand up for those who do not have a voice, and that is what I do in this place. 

The hypocrisy I saw in those churches made it impossible to stay in them and live with myself. 

After I left them, stories started emerging about the abuse of children in these religious institutions.  Not just the Catholic Church - the Anglican Church, the Salvation Army and many other organisations.  To me, that is indefensible, totally indefensible.

To hear some of the arguments put by the Catholic Church - and I am talking about the Catholic Church because as far as I am aware, it is the main opposition in terms of removing the sanctity of the confessional - I cannot understand how they can defend that position that they should not be mandatory reporters.  I cannot understand that. 

I will talk about some of the things we were told.  I have been a member of the Catholic Church, so I get it to a certain degree.

The discussion we had yesterday was about how when a person goes in to confess their sins, they do it in a proper format where they make a statement that indicates they are there for confession.  In the Catholic tradition your confession is made to the priest, but the priest is just an intermediary.  They are actually confessing to God and it is only God who can give them absolution and can forgive them.

The priest may say, 'Well, because of the nature of your sin, you should do this, this and this', but we were told quite clearly that the priest should have no memory of it.  I do not know how you forget some of the stuff you might be told, but that is how it is supposed to work.

This is a supernatural forgiveness of sins by God, a divine authority, and the parishioners are subject only to divine authority.  There is canon law and there is the seal of the confessional that drives all this.  That part of it is the priest not revealing what was confessed and, notionally, not remembering any of it because only God will remember it.

I noticed this in The Age yesterday.  The Victorian parliament tabled its legislation yesterday and the Melbourne archbishop has said he believes he would not break the seal of the confessional and they can put him in jail.

That is a bit of a challenge to say, 'Come and get me'.  I am not sure he understands that if this becomes law, that will be the reality if it can be shown he has covered up or not reported an instance of child sex abuse that has been confessed to.

This is a quote from The Age.  He said -

'Personally, I would keep the seal,' Archbishop Comensoli said when asked on ABC radio on Wednesday morning if he would report an admission of child sexual abuse made during confession to authorities.

Asked if he was prepared to go to jail in defence of the new law, the Archbishop said: 'I'll say for myself, yes.'

In saying for himself yes, he is saying for every other priest in the Catholic Church - or certainly in his diocese, I do not know how far it works - that they are off to prison too if they do not do it.

I find that is maybe a strong conviction of the man's faith and that is fine, but I cannot see how you can live with yourself knowing these children will continue to be harmed.

Alex Sidhu, on behalf of the Archbishop of Tasmania, talked to us yesterday about the Catholic Professional Standards that have been developed.  He just sent me a copy of these standards.  I do not know if anyone else received it; I am happy to share my copy with other members.  He just sent the copy through so I have had about two minutes to look at it.  I will see what some of the requirements are.  To me, this is the sort of information all people working within Catholic organisations should read because they are already mandatory reporters in a lot of circumstances in which they are working, as in their welfare organisations and other aspects.

On ongoing education and training, it says -

Criterion 7.3 -

Personnel receive training and information to enable them to respond effectively to child safeguarding risks, concerns, disclosures and allegations of child abuse.

This is going right to the nub of it.  We are talking about disclosures and allegations -

Indicator 7.3.1 says -

The entity provides training to equip relevant personnel to appropriately respond to and support those bringing forward concerns, disclosures and allegations of child abuse [refer to indicator 4.1.2].

Indicator 7.3.2 says -

The entity provides training to ensure personnel are aware of information sharing and record keeping policies and procedures [refer to indicator 1.6.2].

Indicator 1.6.2 is under the heading 'Committed leadership, governance and culture' -

Child safeguarding is embedded in the entity's leadership, governance and culture. 

The heading for indicator 1.6.2 says -

Personnel understand their obligations on information sharing and record keeping.

Indicator 1.6.2 says -

The entity's information sharing and record keeping policies and procedures relating to all aspects of child safeguarding, including incidents and complaints, apply the following requirements:

·        complete and accurate records are created and maintained for all incidents, complaints, responses and decisions;

I do not know how this sits if they are still with the confessional being this private place.  If you have this directive here, maybe canon law may be applied, but it is not -

Mr Willie - It appears in conflict, doesn't it?

Ms FORREST - It does.  It seems to be directly contradicting what we are hearing from them, saying that we will abide by the sanctity of the confessional, but we still have to provide accurate records, and create the records.

·          records are created at the time of, or as soon as practicable following, an incident, complaint, response or decision;

·          records are titled, organised and filed logically;

·          a master copy of each record is formally maintained to ensure duplicate records or multiple copies of the same record are kept to a minimum;

·          records are maintained and disposed of in accordance with legislative and statutory requirements, or after a period of 50 years [refer to Indicator 6.1.7], whichever is higher;

·          information and/or records are treated as confidential and records are appropriately secured; 

It goes on with a couple more dot points.

Mr President, to me this shows you have to keep records.  If something is disclosed, you have to keep a record.  This is one of the problems we found within the churches:  records were not kept, and so people would make claims and they could not be substantiated because there were no records.  Doing this is a really good step and one would argue they should have been doing it already.

When you look at the other comments Mr Sidhu made, he said the purpose of the confession is about helping an individual to stop committing harm to themselves or to others - that is the purpose of it:  to help them stop.  The person seeking confession is expected to change their life.  He said that before they are given absolution by the priest, on behalf of God, they must first give clear indication of the desire to stop doing what they are doing, and that absolution was condition on a person being sorrowful and committed to changing their life.

I am sure most people, when they confess the nasty, horrible things they might have done, are probably sorrowful.  We hope they are.  What we saw happen, and as reported in the royal commission, was that the priest would hear confessions from other priests time and time and time again.  I assume each time they were asked:  Were they sorrowful?  Were they committed to changing their life?  They probably said yes.   I do not know.  But what happened then?   They moved the priest to another diocese and on it went.  More children damaged, more children harmed, and on and on and on it went.  I do not think their confession system is very effective from the evidence alone. 

I ask myself, what would Jesus do?  We are talking about children.  We are talking about how we should care for children because they are some of the most vulnerable in our communities.  I take you to Mark, chapter 10, verses 13 to 16. 

People were bringing little children to Jesus for him to place his hands on them, but the disciples rebuked them.  When Jesus saw this, he was indignant.  He said to them, 'Let the little children come to me, and do not hinder them, for the kingdom of God belongs to such as these.  Truly I tell you, anyone who will not receive the kingdom of God like a little child will never enter it.'  And he took the children in his arms, placed his hands on them and blessed them.

Mr President, Jesus had a real love for children and wanted to protect them, and not have people saying, 'No, don't let them near me'.  We need to protect these people.  We need to love these people.  Further, in Matthew 18, in verse 6, it says -

If anyone causes one of these little ones - those who believe in me - to stumble -

This is not just children, it is his children, the followers of Jesus -

… it would be better for them to have a large millstone hung around their neck and to be drowned in the depths of the sea.

That is how Jesus felt about it, as I read it.  I have read the whole Bible a couple of times.  I know what is in there.  Anyway, it is not too hard to find references to the way Jesus viewed children.

We also had information from Steve Fisher, on behalf of Beyond Abuse.  I am not going to go through it; other members may wish to.

Clearly, the harms are significant and large.  I want to read some of the information referred to in our briefing yesterday.  I will go to the royal commission's comments on the abrogation of the seal of the confessional, because I do not really understand fully how it works.  I do not understand entirely all the arguments for and against, but the royal commissioners did, and do.  They spent a lot of time and energy looking at this and researching it.  I hold a lot of weight in what the royal commission has to say about this.  This is out of the final report, volume 7, page 62.  It said -

Many of the religious institutions we examined in our case studies had institutional cultures that discouraged reporting of child sexual abuse.  These cultures were often based in traditions and practices that acted as institution-wide barriers to reporting child sex abuse to an external authority - for example, the inviolability of the confessional seal in the Catholic Church. 

On page 99 of the same volume -

In our case studies, we heard that religious confession has been used as a forum to disclose child sexual abuse, both by children subject to abuse and by perpetrators of abuse. 

It was being used in that way.  Same volume, also on page 99 -

In a civil society, it is 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.

I know other debates are going on in the federal parliament about religious freedoms, but it is the right to practise your religious beliefs - but it is not an absolute right.  It went on -

This is recognised in Article 18 of the United Nations International Covenant on Child and Political Rights regarding freedom of religion, which provides that the freedom to manifest one's religion or beliefs may be limited by law, where necessary to protect public safety, order, health or morals, or to ensure the fundamental rights and freedoms of others.

I think the rights and freedoms of children here were grossly ignored and abused.  The right to freedom of religious expression is not an absolute right and the use of the sanctity of the confessional should not be seen to be a way to perpetrate that.

Further on page 99 -

Although it is important that civil society recognise the right of a person to practise a religion in accordance with their own beliefs, that right cannot prevail over the safety of children.  The right to practise one's religious beliefs must accommodate civil society's obligation to provide for the safety of all individuals.  Institutions directed to caring for and providing services for children, including religious institutions, must provide an environment where children are safe from sexual abuse.

In the final report, volume 16, book 1, page 23, it said -

We heard about priests misusing the practice of religious confession to facilitate child sexual abuse or to silence victims.

Just let me read that again -

We heard about priests misusing the practice of religious confession to facilitate child sexual abuse or to silence victims.  Survivors told us about experiencing sexual abuse as children in the confessional at their church.

How can it be a safe place?  Further, in the Criminal Justice Report executive summary on page 52 -

We are satisfied that, where the elements of the reporting obligations are met, there should be no exemption, excuse, protection or privilege from the offence granted to clergy for failing to report information disclosed in or in connection with a religious confession. 

We understand the significance of religious confession - in particular the inviolability of the confessional seal to people of some faiths, particularly the Catholic faith.  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.  We are satisfied that confession is a forum where Catholic children have disclosed their sexual abuse and where clergy have disclosed their abusive behaviour in order to deal with their own guilt.

From the Criminal Justice Report, parts III to VI, page 202 -

We also heard evidence of individuals disclosing their own offending during confession.  For example, in Case Study 35 in relation to the Catholic Archdiocese of Melbourne, a priest had an offending priest attend on him and go into 'confessional mode' making a confession of child sexual abuse.  The priest who heard the confession gave evidence that because of the confessional situation he 'couldn't speak to anyone' and he 'felt totally entrapped by that situation'.

You have to remove that.  We have to remove that.  We discussed this in the briefing yesterday.  If a parishioner speaks to their priest about their marriage difficulties, or whatever, and during the course of that conversation they say they have been sexually abusing their child, or their partner has, but makes a disclosure of sexual abuse, because that is not under the confessional seal used in the circumstance I just cited, the priest is a mandatory reporter.  The priest has to report at that point.  But saying the magic words at the beginning, 'Forgive me, Father, for I have sinned', you do not have to report it.

From the Criminal Justice Report, on page 203 of the same volume I referred to earlier -

We received a précis of evidence from Dr Marie Keenan.  Dr Keenan is a psychologist and researcher who conducted a study of Irish Catholic Church clergy offenders.

The results of Dr Keenan's study are published in Child Sexual Abuse and the Catholic Church: Gender, power and organizational culture.

Dr Keenan wrote in her précis that:

The men in my research used the sacrament of reconciliation to seek forgiveness, resolve never to do this bad thing again and in some cases to ease their conscience.

In Dr Keenan's study, eight out of nine clergy the subject of the study disclosed their acts of child sexual abuse in religious confession.  According to Dr Keenan, the confessional was the main place of respite and support from emotional conflicts and loneliness for those clergy, and it became an important forum for ultimately disclosing their sexual abusing.  They used the secrecy of the confessional to 'externalise' the issue of their abusing in safety.

Mr President, I asked yesterday why a priest would not encourage - or maybe they do; we do not really know what they do in the confessional - the person to turn themselves into the police if they declare they are the perpetrator of abuse.

This whole thing that the only person who forgives them is God - well, if they are really worried about their mortal soul, one would think they would go and confess their sins to God through the priest and then turn themselves in to prevent them doing it again.

If they happen to go to the police first and confess their sin, as we know, the priest can come to them and they can do their confession now and get God's forgiveness if that is what they need, but our criminal justice system must be able to deal with this in a way that protects our children.  We have to protect our children.

Mr President, a couple more quotes, and I will not be saying much more beyond that.

Again on page 203, Dr Keenan continued -

The very process of confession itself might therefore be seen as having enabled the abuse to continue, not only in how the men used the secrecy and safety of the confessional space to resolve the issues of guilt, but also in the fact that within the walls of confession, the problem of sexual abuse of children was contained. 

We cannot allow it be contained.

Even if these guidelines are put in place, they will not stop that unless we make priests and clergy mandatory reporters wherever they are, including during the sacrament of confession.

Same volume, page 216 -

Reporting child sexual abuse to the police can lead to the prevention of further abuse.  In relation to the Sacrament of Confession, we heard evidence that perpetrators who confessed to sexually abusing children went on to re-abuse and seek forgiveness again.

In this context, we have concluded that the importance of protecting children from sexual abuse means that there should be no exemption or privilege from the failure to report offence for clergy who receive information during religious confession that an adult associated with the institution is sexually abusing or has sexually abused a child.

On page 222 -

However, in our work we have learned that perpetrators of child sexual offences are often repeat offenders and that the intervention of civil authorities is required to prevent their offending.

We accept and acknowledge that religious confession serves a fundamentally important purpose for those who practise it.  However, we do not accept that the guidance or encouragement to self-report that may be offered by confessors during religious confession is sufficient to protect children from the risk of harm presented by child sexual abusers seeking absolution for their actions.

Mr President, Mr Sidhu argued yesterday that this will prevent people coming forward and making confessions generally.  It appears not to be a huge number of Catholics who actually do that; we did not get accurate numbers on that.  However, if people do not come and confess we are no worse off, but the evidence showed they confess, absolve themselves and feel better about themselves, and then they go back and do it again.  It is not me saying that - that is what the evidence showed.  The evidence showed they went back, again and again, and the Catholic Church moved the priests around.

I heard what Mr Sidhu said on behalf of the Archbishop.  I understand this is a fundamental linchpin of the Catholic faith, doctrine and practice.  All big capital Cs, but I cannot accept we should allow the seal of the confessional to override the safety and welfare of our children.

I commend the Government.  I am sure it was not easy and I am sure it had enormous pushback.  I commend the Government for being strong and courageous enough to say no.  It should not be that strong and courageous, but I know it has, in the face of opposition, put the real interests of our children first, because if we do not, who will?

Mr President, I support the bill and am pleased to see we are here debating it.

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