Victoria, Inquiry into the Handling of Child Abuse by Religious and Other Organisations, Victorian Government Gazette No S125, 17 April 2012; NSW, Special Commission of Inquiry concerning the investigation of certain child sexual abuse allegations in the Hunter Region, 9 November 2012, <http://www.lawlink.nsw.gov.au/lawlink/Special_Projects/ll_splprojects.nsf/pages/sisa_index>.
2.
Catholic Archdiocese of Melbourne, ‘Catholic Church in Victoria backs mandatory reporting for clergy and reporting to police’ (Media release, 10 October 2012) 1.
3.
NSW, Victoria, Tasmania, the ACT and NT have adopted Uniform Evidence Acts which mirror the Commonwealth Act: Evidence Act 1995 (NSW); Evidence Act 2008 (Vic); Evidence Act 2001 (Tas); Evidence Act 2011 (ACT); Evidence (National Uniform Legislation) Act (NT). Henceforth, I refer to the Uniform Evidence Acts to incorporate the Commonwealth Act and those state and territory Acts which replicate the Commonwealth Act. Evidence Act 1977 (Qld), Evidence Act 1906 (WA) and Evidence Act 1929 (SA) do not contain equivalent provisions. Correspondingly NSW, Tasmania, SA, WA and the NT legislate for the protection of communications by victims of sexual assault to sexual assault counsellors.
4.
Evidence Act 1906 (WA) specifically assumes the existence and continuation of a common law protection (see s 20B). For an excellent discussion of the ramifications of such common law principles, see ALRC, ‘Privilege: Other Privileges’ in Uniform Evidence Law, Report 102 (2006) and TownsleyLesley, ‘Conceal or Reveal? The Role of Law in Black Collar Crime’ (2007) 1Public Space: Journal of Law and Social Justice1.
5.
See Family and Community Development Committee, Parliament of Victoria, ‘Betrayal of Trust - Inquiry into the handling of child abuse by religious and other non-government organisations'’ (2013) 18.
6.
Ibid500.
7.
Ibid.
8.
See, eg, Crimes Act 1900 (NSW) s 45; and Review of Australia's Female Genital Mutilation Legal Framework Final Report March 2013
See, eg, Christian Education South Africa v Minister of Education (CCT4/00) [2000] ZACC11.
11.
See, eg, South African Constitutional Court decision of Prince v President of the Law Society of the Cape of Good Hope (CCT36/00) [2002] ZACC1; 2002 (2) SA 794; 2002 (3) BCLR 231 (25 January 2002)
12.
See, eg, X v The Sydney Children's Hospitals Network [2013] NSWCA320
13.
Prince v President of the Law Society of the Cape of Good Hope (CCT36/00) [2002] ZACC1, [79].
14.
See Krygger v Williams [1912] HCA65, 15 CLR 366; Kruger v Commonwealth [1997] HCA 27, 190 CLR 1, 146 ALR 126; Adelaide Company of Jehovah's Witnesses Incorporated v Commonwealth [1943] HCA 12, 67 CLR 116; Attorney-General (Vic) (Ex rel Black) v Commonwealth [1981] HCA 2, 146 CLR 559.
15.
Ibid.
16.
Above n 10 at [34].
17.
Prince v Massachusetts [1944] USSC 52 at 166–168
18.
494 US 872 at 879.
19.
For example, while the Commonwealth Act contains no privilege for sexual assault counselling admissions such privileges are contained in the Evidence Act 1995 (NSW) s 126H; Evidence Act 2001 (Tas) s 127B; Evidence Act (NT) s 56B; Evidence Act 1906 (WA) s 19C; and Evidence Act 1929 (SA) s 34L.
20.
Religious confession may also, at least in NSW, be caught by s 126B dealing with Exclusion of evidence of protected confidences.
21.
See, eg, Children and Young Persons (Care and Protection) Act 1998 s 93.
Children and Young People Act 2008 (ACT) s 356; Children and Young Persons (Care and Protection) Act 1998 (NSW) ss 23 and 27; Care and Protection of Children Act 2007 (NT) ss 15, 16 and 26; Children's Protection Act 1993 (SA) ss 6, 10 and 11; Children, Young Persons and Their Families Act 1997 (Tas) ss 3, 4 and 14; Children, Youth and Families Act 2005 (Vic) ss 182(1), 184 and 162; Children and Community Services Act 2004 (WA) ss 124A and 124B; Family Court Act 1997 (WA) ss 5 and 160.
24.
Again, classification as a mandatory reporter varies between jurisdictions. See the summary provided by the AIFS, ‘Mandatory reporting of child abuse and neglect’ (July 2013) <http://www.aifs.gov.au/cfca/pubs/factsheets/a141787/index.html>. Difficulties are further compounded by differences in definition of ‘abuse’ and ‘child in need of care’ - see, eg, Leah Bromfield, Prue Holzerand Deborah Scott, Australian legal definitions: When is a child in need of Protection?'’ (July 2013) Australian Institute of Family Studies <http://www.aifs.gov.au/cfca/pubs/factsheets/a142089/index.html>.
25.
See, eg, HannaEdward, The Sacrament of Penance’, The Catholic Encyclopaedia (1911).
26.
Or for that manner any other offence in the eyes of God or the secular society such as murder or genocide
27.
Again, s 126B may be used as a discretionary basis to exclude such evidence as a ‘protected confdence’.
28.
Subject to conditional absolution.
29.
For an excellent discussion of common law privilege, see ThompsonA Keith, Religious Confession Privilege and the Common Law (Brill, 2011).
30.
See Bentham, An Introduction to the Principles of Morals and Legislation (1789) and Hutcheson, Inquiry into the Origins of our ideas of beauty and virtues (1726) expressing the concept as ‘That action is best which procures the greatest happiness for the greatest numbers’.
31.
Bentham, above n 30.
32.
MillJohn Stuart, On Liberty (1859).
33.
See, eg, clause 39 of the 1355 draft of Magna Carta, and the US Bill of Rights.
34.
Subject to a number of qualifications in NSW.
35.
See, eg, Minister for Immigration and Ethnic Affairs v Teoh (1995) 183CLR273; Mabo v Queensland [No. 2] (1992) 175CLR1; and B & B and Minister of Immigration & Multicultural and Indigenous Affairs [2003] FamCA 621.
36.
For a comprehensive discussion of such international standards to domestic law see, eg, JosephSarahSchultzJennyCastanMelissa, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (Oxford University Press, 3rd ed, 2013).
37.
Again, see Attorney-General (Victoria); Ex rel Black v The Commonwealth (1981) 146CLR559; and above, n 12.
