In the Australian National Census taken in 2011, around 5.4 million people picked their religion to be “Catholic” while a total of 13.1 million Australians (61.1%) said their religion was Christianity of some kind. Being a ‘Christian’ in Australia does not always equate to being Anglo-Saxon, white or Caucasian. Christianity as a religion has a great reach inclusive of Australian citizens who are from the sub-continent, Korea, Philippines and various Chinese communities just to name a few. Australia is a religiously tolerant country due to s116 of the Constitution of Australia which provides strong protections to the right to freedom of religious expression. The Australian Human Rights Commission supports the International Covenant on Civil and Political Rights Article 18 which protects “not only the ‘traditional’ religious beliefs of the major religions, but also non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief.”
Australia has a strong Chinese Catholic Community and racial tolerance dates back to Australia's first Catholic cardinal, Patrick Francis Moran who had publically denounced anti-Chinese legislation as being unchristian in the 1880s and 1890s. The Cardinal also defended Chinese migrants. Amongst other things he stood against discrimination when he criticized the French Catholic Church’s anti-Semitism during the Dreyfus case, supported trade unionism and was an advocate for women's suffrage. He died in 1911. This created fertile ground for the growth of Chinese Australian Catholics to emerge into a vital demographic in our community as exhibited by the creation of the Asiana Centre in Ashfield which was formed in 1963 under the guidance of Rev. Dr Paschal Chang, OFM. It is a rich history to be proud of.
This brings us to the present time 2016 and the revelations of the Australian Royal Commission on Child Abuse in the Catholic Church. Much public criticism has been placed on Cardinal George Pell’s supposed “poor form” and “lack of moral courage” on the stand as he was questioned on what he actually knew, suggesting that there was a cover up that was systemic in the Catholic Church both here in Australia and globally. However we need to understand that Cardinal Pell’s response is more of a reflection of a systemic legal problem within the Catholic Church itself where child abuse by rogue offending priests continued for years. This was because the so called “culture of silence” was in a legal sense written into Canon Law.
Cardinal Pell suggested it was up to the Bishops to act and not other priests who may have known of any child abuse in the church but due to their respect for church hierarchy they remained silent. Pre 1917 and during Cardinal Moran’s time, the Code of Canon Law held decrees requiring priests who sexually assaulted children to be handed over to the civil authorities. Then Pope Pius XI issued his 1922 decree, Crimen Sollicitationis, imposing the “secret of the Holy Office” or the secret of the confessional but with a difference. Confessions are without exceptions but secrets of the Holy Office are dispensable but only by the Vatican. This means there is “permanent silence” on all information the Church obtained through its canonical investigations of clergy sex abuse of children and was without exception.
Pope St. John XXIII in 1962 reissued this decree and Pope Paul VI in 1974 replaced it with the “pontifical secret.” This expanded its reach applying to not only information obtained by a church in a canonical inquiry but to the allegations itself. John Paul II applied this in 2001 and Benedict XVI in 2010. In fact Benedict wrote a Pastoral Letter to the people of Ireland blaming the bishops for covering things up but failed to acknowledge the criticisms of the Irish Murphy Commission. Why? Because the 1983 Code of Canon Law required bishops to try and reform child abusing priests before dismissing them so the onus fell on the Bishop’s head instead. The church’s claim is to protect reputations but by letting the crime go unpunished.
There are only two states in Australia which has comprehensive reporting laws and that’s NSW and Victoria. Under the Evidence Act 1995 NSW s127(1) on religious confessions, a member of the clergy is entitled to "refuse to divulge that a religious confession was made" but it does not apply under 127(2) if “the religious confession was made for a criminal purpose”. A religious confession is considered as a privilege under the law as confessions can be about a whole bunch of personal information other than child abuse that a confessor may not want it to be released in a public court. However there is no clear definition of ‘criminal purpose’ under the law. Any reasonable person would assume that child abuse is a crime. If a member of the clergy is placed on the witness stand and refuses to say anything then s20 kicks in with its various case laws or if a clergy refuses to say anything during a police interview then s89A in NSW and if the witnessing priest was considered unfavourable then s38.
However in order to change things you need to have to make it mandatory to report priests suspect of abusing children. All complaints should be reported to the civil authorities and witnessing priests be made compellable to do so on the stand. In NSW if you suspect on reasonable grounds that a child is at risk of significant harm then under ss23 & 27 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) you have to say something. The UN Committee Against Torture and For The Rights of the Child asked Pope Francis to support mandatory reporting in 2014. Pope Francis refused and argued that this would be interfering with the sovereignty of independent states. The Holy See or the Vatican City is the smallest state in the world by both area and population. The criteria for inclusion codified by the Montevideo Convention of 1933 says statehood requires a permanent population, defined territory, government and capacity to enter into relations with the other states. Further it needs to be recognized by at least one UN member state. So does that mean all priests are natural citizens of Vatican City and hence not compellable to speak if they witnessed or know of one of their own having abused a child? No.
Citizenship for other states is based either on birth outside (jus sanguinis) or birth inside (jus soli). Citizenship of the Vatican City is based on the grounds of possessing a certain capacity to work in service of the Holy See (jus officii). The Holy See issues diplomatic and service passports while the Vatican City issues normal passports. But the minute you step out it gets complicated. If you have no citizenship you automatically become an Italian citizen as provided in the Lateran Treaty. Cardinal Pell has an Australian citizen and hence he would fall under Australian law. The ultimate question is then should Pope Francis bring back the Canon Laws as they stood before 1917?
Chesney O’Donnell (BA LLB MCulMed GDLP)