Evidence and Confession(al)s

It’s been a long week, and in the midst of it came the news that a Bill with a bland title had been passed by the Legislative Council. In due course, the Governor will provide royal assent and it will become law.

The bill in question is called the Children Legislation Amendment Bill 2019. It amends a number of Acts, but the amendments that have drawn most attention relate to the Children, Youth and Families Act 2005 (CYF Act) and the Evidence Act 2008.

Image from here

The text of the bill can be found here. Once its amendments are made, §182 and §184 of the CYF Act will relevantly read as follows –

Section 182 – Who is a mandatory reporter?
(1) The following persons are mandatory reporters for the purposes of this Act— …
(ea) a person in religious ministry;… .

Section 184 – Mandatory reporting
(1) A mandatory reporter who, in the course of … carrying out the duties of his or her office … forms the belief on reasonable grounds that a child is in need of protection … must report to the Secretary that belief and the reasonable grounds for it as soon as practicable …

Penalty: 10 penalty units. …

(2A) To avoid doubt, a person is not exempt from the requirement to report under subsection (1) merely because the information would be privileged under section 127 of the Evidence Act 2008. …

This amendment dovetails with §327 of the Crimes Act 1958.  This section relevantly provides that

Section 327 – Failure to disclose sexual offence committed against child under the age of 16 years 

(2)     … a person of or over the age of 18 years (whether in Victoria or elsewhere) who has information that leads the person to form a reasonable belief that a sexual offence has been committed in Victoria against a child under the age of 16 years by another person of or over the age of 18 years must disclose that information to a police officer as soon as it is practicable to do so, unless the person has a reasonable excuse for not doing so.

Penalty:     3 years imprisonment. …

This would be fairly unremarkable, but for the amendments to the Evidence Act.  Post-amendment, §127 of that Act relevantly reads as follows –

Section 127 – Religious confessions
(1)     A person who is or was a member of the clergy of any church or religious denomination is entitled to refuse to divulge that a religious confession was made, or the
contents of a religious confession made, to the person when a member of the clergy.

(2)    Subsection (1) does not apply— …
   (b)        in a proceeding for an offence against section 184 of the Children, Youth and Families Act 2005; or
    (c)    in a proceeding for an offence against section 327(2) of the Crimes Act 1958. …

(4)     In this section, “religious confession” means a confession made by a person to a member of the clergy in the member’s professional capacity according to the ritual of the church or religious denomination concerned.

The effect of this is tolerably clear: in cases falling under the CYF Act or the Crimes Act, a priest may now be prosecuted for failing to maintain the seal of the confessional.  In these cases, a cleric is to be obliged to violate a sacrament and to excommunicate himself (a person who dies in such a condition has no hope of salvation).  While the Minister who steered the legislation through Parliament insisted it applied to a range of faiths, it’s unlikely many people think it was aimed at anyone except Catholics:

For better or worse, §116 of Australia’s Constitution offers clerics little protection.  In relevant part, that section says that “The Commonwealth shall not make any law … for prohibiting the free exercise of any religion”.  Leaving aside whether s.116 applies to State legislatures, the High Court long ago emptied the section of most of its force.  As Griffith CJ put it in Krygger v Williams (1912) 15 CLR 366

To require a man to do a thing which has nothing at all to do with religion is not prohibiting him from a free exercise of religion. It may be that a law requiring a man to do an act which his religion forbids would be objectionable on moral grounds, but it does not come within the prohibition of sec. 116, and the justification for a refusal to obey a law of that kind must be found elsewhere.

I remember my long-ago lecturer in Criminal Law went through a thought experiment where he demonstrated that law of even the most 1984-esque type could be rationalised as being for the protection of children.  One imagines he may now feel vindicated.

Invective from the Past

Australian readers will be well aware of the legal brouhaha surrounding the social media use of rugby player Israel Folau.  The most neutral way of putting the matter is to say that Mr Folau made comments about gay people which were considered gravely offensive and resulted in his contract as a professional athlete being terminated.  The post in question was as follows –


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Those that are living in Sin will end up in Hell unless you repent. Jesus Christ loves you and is giving you time to turn away from your sin and come to him. _______________ Now the works of the flesh are manifest, which are these , adultery, fornication, uncleanness, lasciviousness, idolatry, witchcraft, hatred, variance, emulations, wrath, strife, seditions, heresies, envyings, murders, drunkenness, revelings, and such like: of the which I tell you before, as I have also told you in time past, that they which do such things shall not inherit the kingdom of God. Galatians 5:19‭-‬21 KJV _______________ Then Peter said unto them, Repent, and be baptized every one of you in the name of Jesus Christ for the remission of sins, and ye shall receive the gift of the Holy Ghost. Acts 2:38 KJV _______________ And the times of this ignorance God winked at; but now commandeth all men every where to repent: Acts 17:30 KJV _______________

A post shared by Israel Folau (@izzyfolau) on

As it happened, about the time this particular storm was brewing, I happened to notice a case in my home jurisdiction’s law reports that was worth considering on the matter of what speech is impermissible

The Case

Robert Brickell was a pretty angry man.  He was described as a “mission worker” and on 7 April 1940 he was a man on a mission.  He had fitted a microphone and loudspeakers to his car and gave a speech in Barkly Street, Ararat, which drew quite a crowd.  He referred to the mayor’s decision to refuse permission to use the town hall for a religious meeting, and then to the mayor’s own religion. Warming to his theme he said –

The organisation responsible is that whose blighting influence has spread over most of the countries of Europe and whose slimy hands, dripping with blood unrighteously shed, is subtly but effectively grabbing control of this country, namely, the Roman Catholic Hierarchy of Authority which operates from the Vatican city, Rome, and carries on the biggest racket ever perpetrated upon mankind, blasphemously attaching the name of God and Christ to their racket.

The crowd became agitated and some people said “stop him or we will”.  Police constable Eric Annett intervened to prevent a riot.  Brickell was charged with breaching §24 of the Police Offences Act 1928, which provided –

Every person who … uses any … insulting words … in … any public place … whereby a breach of the peace is likely to be occasioned shall be liable to a penalty of not more than Ten pounds; and in default of immediate payment shall be committed to prison for a term of not more than three months unless such penalty is sooner paid.

The matter was dealt with in the Court of Petty Sessions.  Brickell was convicted and fined £2 (about $170.00 in today’s value).  He applied to have the conviction reviewed: Brickell v Annett (1940) The Argus, 9 May 1940 at 7.

Town Hall
Ararat Town Hall (Image from here)

Barrister DM Little, instructed by the firm of Nevett, Nevett & Glenn (now Nevett Ford Lawyers) sought to overturn the conviction on the basis that the words used, while offensive, were not insulting, unless there was insult to the personal feelings of the hearers.  Insulting, he said, was confined to attacks on a person’s moral character only and not (say) physical appearance.

O’Bryan J took a different view.  He considered that the word “insulting” had a wide meaning and covered scornful abuse of a person or the giving of a personal indignity or affront.

A Catholic would, I have no doubt, hearing the words in question, regard them as an abusive attack upon his personal religious beliefs and practices and would thereby suffer a personal affront. To say to a man that his religion is a sham, that it is a mere dishonest business and trickery, is to offer him a personal indignity as direct as possible.

It followed that the conviction stood.  The section in question, incidentally, lives on in §17 of the Summary Offences Act 1966.

It seems to me there are lessons for both sides in the ruling  in Annett.  On one hand, critics of what one might call public Christianity should not claim a right to say whatever invective comes into their minds –

On the other, free speech fans should remember that there has never been an open season to pick fights.

Annett v Brickell [1940] VLR 312

Pius wasn’t on the ballot

The 1949 Australian Federal Election is usually remembered for the election of the long-lived Liberal/Country Party government which lasted until 1972. It threw up one other interesting result: a High Court decision which (a little surprisingly) has never been reported.

Gordon Anderson was the winning candidate for the newly-formed electorate of Kingsford-Smith.  He took 49.7% of the vote.  His election was challenged by independent candidate Henry Crittenden (who took a whopping 3.2%).  Crittenden alleged that the Gordon – a Roman Catholic – was under an allegiance to the “Papal State”.  This would mean that his election breached §44(i) of the Australian Constitution. That section provides that –

Any person who … is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives.

By contrast, s.116 of the constitution states that “no religious test shall be required as a qualification for any office … under the Commonwealth”.

Chick
Nope! (Image from here)

The case was brought in the High Court of Australia sitting as the Court of Disputed Returns. Anderson applied to stay the proceedings as vexatious. The matter was dealt with by Fullagar J. His Honour said –

[E]very person born in Australia, into whatever religion he may be born and whatever religion he may embrace, is according to the law of this country … a British subject owing allegiance to His Majesty, and that of that allegiance he cannot rid himself except in certain prescribed ways. … But the root of the matter, to my mind, lies in the fact that the petitioner really seeks to revive a point of view which was abandoned in England in 1829, when §2 of Act 10 Geo. IV, c. 7 enacted that any person professing the Roman Catholic religion might lawfully sit and vote as a member of either House of Parliament, if in other respects duly qualified. Section 116 of our own Constitution was, of course, not enacted by men ignorant or unmindful of history, and it is, in my opinion, §116, and not §44(i) of our constitution which is relevant when the right of a member of any religious body to sit in parliament is challenged on the ground of his religion. Effect could not be given to the petitioner’s contention without the imposition of a “religious test”. In my opinion, the ground put forward … is quite untenable.

The application was dismissed with costs against the petitioner.

Crittenden v Anderson (High Court of Australia, Fullagar J, 23 August 1950, unreported)