Vice-Chancellor Greg Craven argues against breaking the seal of confession
THERE are some ideas so bad they need to be killed quickly. Not just to protect those affected by them, but those pushing them.
Breaking the seal of the Catholic confessional is such an albatross. Pursue it, and Australia will carry a human rights cross through a constitutional minefield. The appeal is obvious. Why should a criminal priest unburden himself to his brethren without fear of disclosure?
The obvious fact that criminal clergy do not go to confession, and would not receive absolution unless they agreed to turn themselves in, is ignored. And if the seal is withdrawn, so will be the disclosures. But beyond this are immense constitutional and human rights problems.
First Section 116 of the Constitution bans the commonwealth from prohibiting the "free exercise of religion". Few outside the Catholic Church understand confession. The sacrament is central to being a Catholic. Catholics must confess, and priests must hear their confession in absolute secrecy. The priest acts as the ear of God. In other words, a priest cannot be a priest and a Catholic cannot be a Catholic without the sealed confessional.
So far, no law has ever been struck down as breaching Australia's constitutional freedom of religion. But a law smashing the confessional will be that law: a law prohibiting the exercise of a central belief of the world's largest religion. A good deal of sophistry has gone into denying this. One argument is that a law forcing confessional disclosures of child abuse would not be aimed at Catholics because it could be drafted "generally". Like a law outlawing large flightless birds is not aimed at emus. We do not employ judges that stupid.
The other argument is that freedom of religion must give way before the right against abuse. The High Court has in the past tolerated restraints on religion if aimed at some other legitimate objective.
But in pondering such questions, the court presumably will compare this extraordinary restriction on freedom of religion with other laws that do exempt people from reporting crimes.
For example, if priests must break the confessional, surely lawyers must report evidence strongly indicating their client has abused a child. But no one yet - rightly - has proposed abolishing legal professional privilege.
And if priests must disclose child abuse, surely they should disclose other monstrous crimes such as murder, rape and endemic corruption. And so should lawyers. And why should journalists dismissive of the confessional seal have a right to "protect their sources", even when they are criminals? Surely, freedom of religion and freedom of the press march together.
All these convenient inconsistencies will puzzle a High Court considering the legitimate object of a law dramatically limiting the freedom of a particular religion.
It will be assisted by other factors, such as international law, so favoured by many critics of the confessional in other contexts. It will know Article 18 of the International Covenant on Civil and Political Rights, to which Australia is a signatory, guarantees a fundamental freedom of religion.
The court will note that in both the US and Canada, there is high judicial authority that cracking the seal of the confessional amounts to a basic breach of a constitutional right to religious freedom.
Most of all, judges will know that law or no law, priests will not betray their religion. Like Father Frank Brennan, they will be prepared to go to jail before violating their consciences. And judges will be required to send them there.
We even have had the bizarre suggestion that this prospect does not matter, because no one will actually know what passes in the confessional anyway. But if so, why have the law?
Moreover, everybody will know every bishop is instructing every priest to keep the seal. This constitutes the very public offence of incitement, if not conspiracy. How constitutionally confident can a government be of a law to jail bishops? How confident can a world be of such a country?
Of course, the states are not bound by the freedom of religion contained in Section 116, so they theoretically could make laws banning Catholics from being Catholics.
But Australia will still be in breach of its treaty obligations. It will still be a human rights spectacle. And the High Court will still have a sense of smell.
Perhaps we should concentrate on doing something that actually helps prevent child abuse.
Professor Greg Craven is the Vice-Chancellor of ACU.
This piece was first published in The Australian.