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"The law stands": A-G won't boost SA's mandatory reporting laws

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As a defiant Catholic Archbishop Philip Wilson prepares to fight his conviction for concealing child sexual abuse, South Australian Attorney-General Vickie Chapman says there is no need to bolster the state’s new mandatory reporting laws, despite several church leaders suggesting they would not adhere to them if it meant breaking the seal of confession.

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Changes to South Australian law passed last year – and coming into effect from October – will impose a maximum $10,000 fine on anyone who fails to report a suspicion that a child or young person is at risk of abuse.

The legislation relates to a suspicion formed “in the course of the person’s employment”, and makes specific provision for “work as a minister of religion or as part of the duties of a religious or spiritual vocation”.

The legislation, brought in following a recommendation of the Nyland Royal Commission, is distinct from the law under which Wilson was charged – and found guilty – in New South Wales.

Wilson was charged under Section 316 of the NSW Crimes Act, which relates to failing to report information about a serious indictable offence “which might be of material assistance”.

Late yesterday, 67-year-old Wilson confirmed he would appeal his conviction, after he received a 12-month jail term, with a six-month non-parole period, possibly served on home detention at his sister’s NSW Central Coast home.

Political leaders, including Prime Minister Malcolm Turnbull, Opposition Leader Bill Shorten and Premier Steven Marshall, have lined up to demand his resignation – calls Wilson said in a statement he took “very seriously”.

“However, at this time, I am entitled to exercise my legal rights and to follow the due process of law,” he said.

“Since that process is not yet complete, I do not intend to resign at this time. However, if I am unsuccessful in my appeal, I will immediately offer my resignation to the Holy See.”

He has stood aside from all official duties in the interim.

The case has prompted questions about the efficacy of the new South Australian laws, with Adelaide lawyer Mal Byrne renewing calls for a specific offence of concealment, carrying a maximum penalty equivalent to that faced by Wilson.

Byrne, a partner at Tindall Gask Bentley Lawyers who has represented many survivors of institutional child sexual abuse, says “there’s a difference between breaching mandatory reporting obligations and concealing knowledge of a criminal offence”.

“If [Wilson] did the same thing in SA he wouldn’t be facing the same [sentence] that he’s facing now,” he said.

He maintains the maximum sentence should be increased, particularly “because the clergy have indicated they’re not going to comply in certain circumstances”.

“But you can’t create an offence specifically to clergy – it should apply to anyone,” he said.

“The argument is: is a $10,000 fine enough? Or should there be something equivalent [to the NSW concealment penalty]?”

The acting head of Adelaide’s Catholic Archdiocese, Port Pirie Bishop Greg O’Kelly, last month told ABC radio the forthcoming law change “does not affect us”.

O’Kelly said while there was an “absolute need to do everything we can for child protection”, laws passed by parliament could never change the nature of the Catholic confessional, which “is in the area of the sacred”.

“Politicians can change the law, but we can’t change the nature of the confessional, which is a sacred encounter between a penitent and someone seeking forgiveness and a priest representing Christ,” he said at the time.

“That does not change by the law of politicians.”

O’Kelly said he had never heard a confession from a pedophile, but that if he did, he would not report it to secular authorities. Rather, his “obligation would be to try to urge that person to go to somewhere where he can get help or whatever, to do whatever he can to change this dreadful behaviour”.

O’Kelly’s approach was echoed this week in a statement published by Brisbane parish priest Scot Armstrong on behalf of the Australian Confraternity of Catholic Clergy, a group comprising around 600 Catholic priests from all states and territories.

Armstrong wrote that the group “wishes to voice its profound objection to the laws passed in the Australian Capitol Territory, South Australian and Tasmanian legislatures requiring priests to break the seal of confession”.

“The seal of the sacrament applies to the penitent’s personal relationship in conscience with God, and as such is not merely a matter of canon law, but of Divine Law, from which the Church has no power to dispense,” he wrote.

“No priest is bound to keep any human law that attempts to undermine the absolute confidentiality of confession.

“Since priests cannot and will not follow such a law, the intention to protect children and vulnerable adults is thwarted by the ill-judged nature of the legislation which indicates a radically inadequate understanding of the Sacrament.”

Armstrong said the laws were impractical in either protecting children and vulnerable adults from abuse, or depriving predators of the opportunity to commit crimes.

But Chapman told InDaily she had read the statements made by O’Kelly “and others” and did not believe they constituted “an indication that… they’re not going to comply with [this law]”.

The Attorney said the clergy understood their obligation in relation to child protection and to their own canon law, and “if in conflict we’ll stick with our law and not civil law”.

“That’s as far as it goes,” she said.

She said none of the commentary suggested a statement of civil disobedience, insisting: “I haven’t seen that so far.”

Chapman said she did not intend to revisit the maximum sentence under law, and certainly would not single out any given profession that was captured by mandatory reporting requirements.

“I’m not minded to either release them from this legal obligation or to single them out [by giving] them a higher penalty than anyone else, including teachers, nurses or doctors,” she said.

She said the comments made by O’Kelly appeared “quite reasonable” to the extent that the church had not been consulted or even notified about the legislative change.

“The law stands as far as we’re concerned,” she said.

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