Breaking Trust

Breaking Trust David Teisseire, CISSP 26th May 2005

Abstract This paper addresses the issues surrounding and the potential remedies to the ``Children's Protection (Keeping Them Safe) Amendment Bill 2005''. There are two primary issues addressed in the paper. Firstly the matter of mandatory reporting for pastors and secondly the matter of the confessional exemption to that mandatory reporting. A brief survey of corresponding legislation from other countries and bodies is considered in light of the proposed Bill. The inconsistency of the legislation portrayed, even from state to state within the same nation, highlights the confusion and ad hoc manner in which the child protection legislation has been implemented through out the world.Within Australia, one state (Western Australia) has no codified child protection act in force but rather relies on older statutes to provide some degree of protection to children. In regard to the 'confessional clause' within the Bill, the author considered whether it's provisions could be extended to other pastor/parishoner type confidential communications. Instead it was discovered that the entire concept of the 'confessional clause' was of little purpose, save the protection of a guilty party. This author does not know if this effect was intentioned or a result of genuine error in the drafting of the Bill. The paper concludes with a very brief analysis of the implications of both adherance and civil disobedience to the provisions of the Bill and subsequently the amended Act. Background to the Bill It is dangerous to be right in matters on which the established  authorities are wrong. ~Voltaire Before addressing the amendment bill and it's implications, there is a need to look briefly into the historical context of these amendments. In this regard, there are three documents of relevance to this paper. We shall look at these three documents in order of publication to provide a timeline based context to

the development of the documents and ultimately the Bill under consideration. Document 1: Children's Protection Act 1993 The Children's Protection act 1993 is the parlimentary act that describes and prescribes the matters regarding child protection within this State. For the purposes of this paper, the relevant portions of the Act are; PART 4 NOTIFICATION AND INVESTIGATIONS DIVISION 1 NOTIFICATION OF ABUSE OR NEGLECT Interpretation 10. In this Division, "abuse or neglect", in relation to a child,  has the same meaning as in section 6(1), but includes a  reasonable likelihood, in terms of section 6(2)(b), of the child  being killed, injured, abused or neglected by a person with whom  the child resides. Notification of abuse or neglect 11. (1) Where (a)a person to whom this section applies suspects on reasonable  grounds that a child has been or is being abused or neglected;  and (b)the suspicion is formed in the course of the person's work  (whether paid or voluntary) or of carrying out official duties, the person must notify the Department of that suspicion as soon  as practicable after he or she forms the suspicion. Maximum penalty:$2 500. (2) This section applies to the following persons: (a)a medical practitioner; (ab)a pharmacist; (b)a registered or enrolled nurse; (c)a dentist; (d)a psychologist; (e)a member of the police force; (f)a community corrections officer (an officer or employee of an  administrative unit of the Public Service whose duties include  the supervision of young or adult offenders in the community);

(g)a social worker; (h)a teacher in any educational institution (including a  kindergarten); (i)an approved family day care provider; (j)any other person who is an employee of, or volunteer in, a  Government department, agency or instrumentality, or a local  government or non­government agency, that provides health,  welfare, education, child care or residential services wholly or  partly for children, being a person who? (i)is engaged in the actual delivery of those services to  children; or (ii)holds a management position in the relevant organisation the  duties of which include direct responsibility for, or direct  supervision of, the provision of those services to children. (3) A notification under this section must be accompanied by a  statement of the observations, information and opinions upon  which the suspicion is based. * * * * * * * * * * Protection from liability for voluntary or mandatory notification 12. A person who (whether voluntarily or pursuant to a  requirement of this Act) notifies the Department of a suspicion  that a child has been or is being abused or neglected or provides  any information to the Department in respect of such a  notification? (a)cannot, by virtue of doing so, be held to have breached any  code of professional etiquette or ethics, or to have departed  from any accepted form of professional conduct; and (b)insofar as he or she has acted in good faith, incurs no civil  or criminal liability in respect of the notification or the  provision of the information. and PART 1 PRELIMINARY 4.Principles to be observed in dealing with children

(e)preserving and enhancing the child's sense of racial, ethnic,  religious or cultural identity, and making decisions and orders  that are consistent with racial or ethnic traditions or religious  or cultural values. Document 2: Layton Review A considerable proportion of the South Australian Government's policy and direction is based on the recommendations of what is commonly called the Layton Review. The full and correct title of the review document is ``Our Best Investment: A State Plan to Protect and Advance the Interests of Children''. This document was published in March 2003 as the official report of the Review of Child protection in South Australia, chair Robyn Layton, QC. This report consists of the report of the Review, comprising an analysis of 203 submissions and produced a total of 206 recommendations. In the context of this paper the following sections of the report are of significance. Chapter 10 specifically pages 10.11 through to page 10.13 - Extending the Classes of Persons Required to Notify and recommendation 54. The relevant portions are reproduced below: EXTENDING THE CLASSES OF PERSONS REQUIRED TO NOTIFY The South Australian legislation involves a wide capture of  professionals and other people required to notify and is one of  the broadest in Australia. Comment was invited on the question of  whether the provisions identifying the professions and people  involved in services that are primarily for children as mandated  notifiers needed amendment. Many individuals and organisations  have sought extension of persons required to notify suspected  child abuse and neglect. The following suggestions have been put  forward as recommendations for change to the legislation as  mandated notifiers of child abuse and neglect: the clergy [footnote: Submissions 1, 12, 37, 66, 95, 100, 139, 143, 196.] all church personnel all volunteers who work with children  cover all areas of childrens lives, for example, religious, sporting, voluntary  organisations, etc and

legal professionals. All church personnel including the clergy, with the exception of  confessionals, are proposed for inclusion as mandated notifiers.  This position is strongly supported by a number of major churches  in light of the disclosures of abuse that have been made within  Australia and overseas and the view that the public interest and  the relationship of the church personnel to children and the  wider community warrants this.  The issue of incorporating volunteers who work with children  raises the issue of whether a distinction should be made in  relation to those volunteers working with children in supervised  settings and those working with children in unsupervised settings  and the implications this will have for determining who qualifies  and who does not qualify as a mandated notifier within  organisations where both types of volunteers provide services  directly to children.  In view of this difficulty, it was considered preferable to adopt  a streamlined approach and support the inclusion of all  volunteers who work with children, given the difficulty that is  presented in determining which volunteer qualifies and which  volunteer does not. A further reason for adopting this approach  is the consideration of the relationship that volunteers may  develop with children irrespective of whether they are working in  supervised situations or not and the opportunity that this may  present for liaising with children outside the place of service.  YACSA has specifically recommended that South Australia follow  the provisions of the New South Wales Children (Care and  Protection) Act 1987 to include as mandated notifiers anyone who:  (a) in the course of his or her professional work or other paid  employment delivers health care, welfare, education, childrens 

services, residential services or law enforcement wholly or  partly to children under the age of 16 years or  (b) holds a management position in an organisation the duties of  which include direct responsibility for or direct supervision of  a person referred to in (a) and that person has reasonable  grounds (that arise as a consequence of their employment) to  suspect that a child is at risk of harm.  This proposed amendment would exclude volunteers who are  currently included within the South Australian Childrens  Protection Act 1993 where they are employed in settings providing  services to children, although it eliminates the requirement to  separately list each profession required by law to make a report.  However, it clearly excludes other classes of persons such as  ministers of religion and people supervising children in  recreational, sporting or other bodies that would not fall within  the scope of the NSW legislative provisions but for whom there  has been strong endorsement for their inclusion in the provision  from submissions.  It was also noted that some service providers in before­school,  after­school and vacation care were not necessarily incorporated  as mandated notifiers under the current legislative provisions.  This exclusion appears to be one made on technical legal grounds  rather than the principle of employment within an organisation  providing services to children.  LEGAL PROFESSIONALS A number of submissions suggested that legal professionals be  included as mandated notifiers. However, legal professional  privilege and public interest principles which are the foundation  of the privilege, prohibit this from being feasible.

Below is the original form of the recommendation by the Layton Review. RECOMMENDATION 54 That the Childrens Protection Act 1993 be amended to include: * all church personnel including ministers of religion (except in  confessionals) * all individuals in services providing care to or supervision of  children * all volunteers who are working with children (including both  volunteers working in a supervised and unsupervised settings) * all people who may supervise or be responsible for looking  after children as part of a sporting, recreational, religious or voluntary  organisation as mandated notifiers. Reason It is preferable to adopt the broadest approach to mandated notification  because of legal technical issues associated with determining who is a  mandated notifier and who is not. Document 3: Children's Protection (Keeping Them Safe) Amendment Bill 2005 This of course is the document under review, specifically the addition of paragraph (ga) in section 11(2). In addition the interpretation of subsection (4) in Section 11 is to be considered in this paper. Part 2 Amendment of Children's Protection Act 1993 10 Amendment of section 11 Notification of abuse or neglect  (1) Section 11(1), penalty provision delete the penalty provision  and substitute:  Maximum penalty: $10 000.  (2) Section 11(2) after paragraph (g) insert:  (ga) a minister of religion;  (gb) a person who is an employee of, or volunteer in, an  organisation formed for religious or spiritual purposes;  (3) Section 11(2)(j) after "education,"  insert: sporting or recreational, 

(4) Section 11 after subsection (3) insert:  (4) This section does not require a priest or other minister of  religion to divulge information communicated in the course of a  confession made in accordance with the rules and usages of the  relevant religion.  In light of the inclusion of what the author terms the 'confessional clause', being Section 11 subsection 3 above, it is expedient to address that matter firstly in this paper. The Confessional Clause The inclusion of what the author has termed the 'confessional clause' is somewhat confusing and needs to be addressed. The Bill states; Section 11 (4) This section does not require a priest or other  minister of religion to divulge information communicated in the  course of a confession made in accordance with the rules and  usages of the relevant religion.  Initially this report looked at the possibility of communications between a pastor and a child as being a privledged communication in the same vein as the 'confessional'. A number of points mitigating against this became apparent quite quickly. • The concept and practice of the 'confessional' has been ensued by the church fathers. (see footnotes) In light of this there is no possible way that this church could make a case for a 'confessional' type communication. It could be argued that a precedent has been established in other jurisdictions where the scope of a 'confession' has been extended to include other minister/parishoner communications, see particularly the Montana Legislation. • The process of the confessional begins with the applicant stating ``Forgive me Father.. and essential ends with the priest pronouncing absolution and a pennance to be performed. Thus a case could be made that only communications bounded by these words and actions may be considered under the covering of a confession. • Probably the most significant matter is that the nature is of a confession, that is a confession of the applicants sins, not those committed against them. Quite clearly a child in a confessional situation would not be confessing their sin

(except where the child had been convinced of their guilt by association - a situation that exists quite frequently). The only other circumstance where the confessional would be an 'appropriate' forum is the circumstance where the child abuser uses the confessional. In this case the clause of section 11 (4) protects the offender NOT the child; the author is at a loss to understand the rationale behind this apparent protection of the offender. Accordingly, the author considers that there is no relief under the terms of the 'confessional clause'. International Comparison There is little doubt that the entire issue of child protection, but more specifically mandatory reporting is of global concern. A sampling from the global media over a period of a few days, certainly confirms an international awareness of the offenses and the need for adequate and consistant legislation. As a result, many western nations and states have either enacted or changed existing legislation to extend the scope of mandatory reporting. Australia, like many other countries has co-signed ``The United Nations Conventions on the Rights of the child'', which recognises that children are entitled to special care and assistance and to take all appropriate legislative measures to protect children from abuse. There is no debate regarding the need to protect children and the requirement to codify the process; however, it is the various implementations of this process that raise a number of alarms. The most striking aspect of the bulk of the proposed and enacted legislation is, the varability of both the mandated reporters and the exemptions from that mandated reporting. To give the reader a broad understanding of the contradictory nature of much of this legislation, a number of individual statutes are highlighted. Due to the numbers of potential statutes that could be chosen, this paper will only briefly look at a small number, highlighting where some of the problems and issues exist. United States As the most litigatious nation on earth, it is important to look at some of the legislation that has been instituted by the various states of the Unitied States of America. Many consider American legislation to be a defacto standard for the rest of the world, as such this paper would do an injustice not to review a few relevant clauses fom their body of legislation in this matter.

Firstly, two extracts from a legal site, expressing views on both confidentiality and privileges and the Clergy. Both of these excerpts point to the problems associated with enforcing mandatory reporting for the group of persons labelled as clergy. 1 Confidentiality and Privileges Some statutes expressly provide that all confidential privileges are abrogated. Some states provide an exemption for clergyman who receive information in the context of a sacred communication or confession. The clergy/penitent exception, however, is strictly defined and will not apply if a clergyman is acting in another role, i.e. a health practitioner. This raises the issue of whether pastoral counselors in private practice can assert the privilege. [footnote: http://www.smith-lawfirm.com/mandatory_reporting.htm] From the above analysis by the Smith Law Practice, it could be argued that the manatory reporting by Clergy is more of a cultural rather than a legal matter. Although the author has not delved into the socio background of the various states and their position on reporting by Clergy, there could be a correlation between the severity of the statue provisions and the way that the 'church' is perceived within that state. The following excerpt from the same report seems to support this view to some extent. 2 Clergy In the wake of the Catholic church sex abuse scandal, many states have revised their mandatory reporting laws to include clergy as mandatory reporters. According to the National Clearinghouse, 21 states now include clergy as mandatory reporters, while another 18 define all people as mandatory reporters of abuse and would therefore include clergy. Protection for information received during confession varies. [footnote: http://www.smithlawfirm.com/mandatory_reporting.htm] 3 National Adoption Information Clearinghouse This agency produced a paper titled ``2003 Child Abuse and Neglect State Statute Series Ready Reference - Reporting Laws: Clergy as Mandatory Reporters'' [footnote: http://www.smithlawfirm.com/Documents/mandatoryreporting_mandclergy.pdf] which reviewed the legislation of the various states of the United States of America as it relates to mandatory reporting for clergy. Some of the more pertinate points from this paper are referenced below: 3.1 Privileged Communications As a doctrine of some faiths, clergy must maintain the confidentiality of pastoral communications. Mandatory reporting statutes in some

States specify when a communication is privileged. Privileged communications is the statutory recognition of the right to maintain the confidentiality of such communication. Privileged communications may be exempt from the reporting laws. The privilege of maintaining this confidentiality under State law must be provided by statute, and most States do provide the privilege, typically in rules of evidence or civil procedure. If the issue of privilege is not addressed in the reporting laws summarized here, it does not mean that privilege is not granted; it may be granted inother parts of State statutes. This privilege, however, is not absolute. While clergy-penitent privilege is frequently recognized within the reporting laws, it is typically interpreted narrowly in the child abuse or neglect context. The circumstances under which it is allowed vary from State to State, and in some States is denied altogether. 3.2 Arizona Legislation Ariz. Rev. Stat. Ann. § 13-3620(A) (West, WESTLAW through Ariz. 2003 Legis. Serv., Ch. 222) Any member of the clergy, priest, or Christian Science practitioner who reasonably believes a minor is or has been the victim of injury, abuse, child abuse, a reportable offense, or neglect shall immediately report or cause a report to be made. A member of the clergy, Christian Science practitioner, or priest who has received a confidential communication or a confession in that person's role as a member of the clergy, Christian Science practitioner, or priest in the course of the discipline enjoined by the church to which the member of the clergy, Christian Science practitioner, or priest belongs may withhold reporting of the communication or confession if the member of the clergy, Christian Science practitioner, or priest determines that it is reasonable and necessary within the concepts of the religion. This exemption applies only to the communication or confession and not to the personal observations the member of the clergy, Christian Science practitioner, or priest may otherwise make of the minor. 3.3 Arkansas Legislation Ark. Code Ann. § 12-12-507(b)(28), (c) (WESTLAW through Ark. 2003 Legis. Serv., Act 1039) When any of the following has reasonable cause to suspect that a child has been subjected to child maltreatment or has died as a result of child maltreatment, or who observes a child being subjected to conditions or circumstances that would reasonably result in child maltreatment, he or she shall immediately notify the child abuse hotline: Any clergyman, which includes a minister, priest, rabbi, accredited

Christian Science practitioner, or other similar functionary of a religious organization, or an individual reasonably believed to be so by the person consulting him or her, except to the extent he or she has acquired knowledge of suspected maltreatment through communications required to be kept confidential pursuant to the religious discipline of the relevant denomination or faith, or her or she received the knowledge of suspected maltreatment from the offender in the context of a statement of admission. 3.4 Massachusetts Legislation Mass. Gen. Laws Ann. ch. 119, § 51A (West, WESTLAW through 2003 1st Ann. Sess.) Any priest, rabbi, clergy member, ordained or licensed minister, leader of any church or religious body, accredited Christian Science practitioner, persons performing official duties on behalf of a church or religious body that are recognized as the duties of a priest, rabbi, clergy, ordained or licensed minister, leader of any church or religious body, or accredited Christian Science practitioner, or person employed by a church or religious body to supervise, educate, coach, train or counsel a child on a regular basis, who, in his professional capacity shall have reasonable cause to believe that a child under the age of 18 years is suffering physical or emotional injury resulting from abuse inflicted upon him which causes harm or substantial risk of harm to the childs health or welfare including sexual abuse, or from neglect, including malnutrition,shall immediately report such condition to the department. Notwithstanding chapter 233 § 20A, a priest, rabbi, clergy member, ordained or licensed minister, leader of a church or religious body or accredited Christian Science practitioner shall report all cases of abuse under this section, but need not report information solely gained in a confession or similarly confidential communication in other religious faiths. (emphasis mine) Nothing in the general laws shall modify or limit the duty of a priest, rabbi, clergy member, ordained or licensed minister, leader of a church or religious body or accredited Christian Science practitioner to report a reasonable cause that a child is being injured as set forth in this section when the priest, rabbi, clergy member, ordained or licensed minister, leader of a church or religious body or accredited Christian Science practitioner is acting in some other capacity that would otherwise make him a reporter. 3.5 Michigan Contrastingly a document from Michigan loosely titled Michigan Child Welfare Law - Chapter 1 Reporting provides no basis on which confidentiality of communication may be claimed. Further the document extends the basis on which reporting must occur.

QUANTUM OF SUSPICION - REASONABLE CAUSE TO SUSPECT. The child protection law does not require that the reporter investigate the matter or know with certainty that abuse or neglect has occurred. In fact, the statute does not even require that the reporter actually suspect child abuse or neglect. (Emphasis mine) The threshold of concern is very, very low. A mandated reporter must file a report upon a reasonable cause to suspect child abuse or neglect. WHO IS TO REPORT; LIABILITY FOR FAILURE TO REPORT. Mandated Reporters Typical of state child abuse reporting laws, Michigan names a large class of mandated reporters from among professionals who are in contact with children and whose training and expertise should make them sensitive to possible child maltreatment. Mandated reporters in Michigan are: A physician, dentist, physicians assistant, registered dental hygienist, medical examiner, nurse, person licensed to provide emergency medical care, audiologist, psychologist, marriage and family therapist, licensed professional counselor, certified social worker, social worker, social work technician, school administrator, school counselor or teacher, law enforcement officer, member of the clergy, or regulated child care provider who has reasonable cause to suspect child abuse or neglect . ABROGATION OF PRIVILEGED COMMUNICATION Many cases of known or suspected child abuse or neglect would never come to light if various professional privileged communication and confidentiality duties remained intact. In nearly every state, including Michigan, communication between ministers and persons, physicians and patients, husbands and wives, attorney and client, psychologist and client, and social worker and client, among others, are protected as privileged and confidential. Abrogation of such privilege for purposes of reporting child abuse and neglect or giving evidence in such cases has become a standard part of child abuse reporting laws among the states. [footnote: www.michigan.gov/documents/MCWLChap1_33835_7.pdf] Finally, the Montana legislation refers to the dual concepts of intention and consent in regard to the communications.

3.6 Montana Legislation Mont. Code Ann. § 41-3-201(2)(h), (4)(b) (WESTLAW through 2001 Reg. Sess.) Professionals and officials required to report [include]: a member of the clergy. A clergyperson or priest is not required to report under this section if: The knowledge or suspicion of the abuse or neglect came from a statement or confession made to the clergyperson or priest in that persons capacity as a clergyperson or priest; The statement was intended to be a part of a confidential communication (emphasis mine) between the clergyperson or priest and a member of a clergypersons or priests church or congregation; and The person who made the statement or confession does not consent to the disclosure (emphasis mine) by the clergyperson or priest. A clergyperson or priest is not required to make a report under this section if the communication is required to be confidential by canon law, church doctrine, or established church practice. United Kingdom Not covered in this draft paper. Australia - rest of In June 2004, the stated position of the various states and territories of Australia, as reported by National Child Protection Clearinghouse[footnote: http://www.aifs.gov.au/nch/sheets/rs3.html ], was as follows; Australian Capital Territory Mandatory reporting was introduced into the Australian Capital Territory in 1997. Doctors, nurses, police officers, teachers, school counsellors, public servants working in the child welfare field, and licensed child care providers are mandated to report suspected cases of sexual abuse and non-accidental physical injuries to the Department of Education and Training or the Children's Youth and Family Services Bureau. New South Wales

The state of New South Wales has had mandatory reporting legislation since 1977 when medical practitioners were mandated. In 2000, the legislation was extended to include those who, in the course of their professional work or other paid employment, deliver health care, welfare, education, children's services, residential services or law enforcement to children under the age of 16 years. It also mandates those who hold a management position and supervise workers in the above categories, and who have reasonable grounds to suspect a child is at risk of harm. Mandated professionals must report physical or sexual abuse as well as medical neglect, physical neglect or psychological harm caused to a child by witnessing domestic violence. Reports are made to the Department of Community Services. Northern Territory In the Northern Territory, any person who believes a child is being or has been maltreated is required to notify a Family and Children's Services Office, Child and Family Protective Services, or a police station. Queensland Under the Health Act 1937, medical practitioners in Queensland are required by law to notify all suspected cases of physical, psychological, or emotional abuse or neglect, as well as sexual abuse or exploitation, to the Director-General, Queensland Health. School principals and teachers are not mandated by law, but Education Queensland policy requires teachers to report suspected cases to authorities. The Child Protection Act 1999 requires that Department of Families officers and licensed care officers report when they suspect harm to children who are in residential care. Tasmania In Tasmania, mandatory reporting requirements are outlined in the Children, Young Persons and Their Families Act 1997. The Act emphasises the responsibilities for all members of the community to make sure children are protected. Those mandated to report child abuse or neglect include medical practitioners, nurses, dentists, police officers, psychologists, probation officers, child welfare officers, school principals, teachers, kindergarten teachers, people who manage child care services and people employed by or volunteering in government agencies or organisations funded by the Crown that provide heath, welfare, education or care for children. Victoria Mandatory reporting was legislated in Victoria in 1993 via an amendment to the Children and Young Persons Act 1989 which

mandates professionals to report suspected cases of physical and sexual abuse. Professionals mandated are doctors, nurses, police, teachers and school principals. Reports are made to the Department of Human Services. South Australia South Australia has mandated professionals who suspect on reasonable grounds that a child has been murdered, injured, abused or neglected. The professionals who are mandated are medical practitioners, nurses, dentists, pharmacists, psychologists, police, probation officers, social workers, teachers, family day care providers, employees or volunteers in government departments, agencies or local government or non-government agencies that provide health, welfare, education, childcare or residential services for children. Reports are made to the Department of Human Services (Family and Youth Services). Western Australia Western Australia does not currently have any mandatory reporting legislation. However the state does have a series of reciprocal protocols between government departments and nongovernment agencies which are based on the idea that professionals in the areas of health, welfare and police have a duty of care to report any concerns. an excerpt froma Western Australian Government document on mandatory reporting states: ... despite very large increases in reporting rates of child maltreatment across Australia in the last ten years, there have not been equivalent increases in substantiation rates. It is very evident from the international literature that child welfare is in a state of confusion. A child protection focused system has evolved - with or without mandatory reporting - that is based on investigating increasing numbers of parents living in poverty, for alleged wrong doing, with few alternative responses to removal of the child36. Overwhelmed by the number of reports of child maltreatment, the problem is aggravated by the exiguity of preventative and family support services and the absence of long term placement solutions.37 35 See Department of Social Work, Positive Parenting, Ontario, 2002. 36 Pelton 1990 37 Diamond 2001 United States data may give us some forewarning. The number of reported incidents of child maltreatment has grown from a national figure in the United States of 669,000 in 1976, to 2.5 million in the early 1990s. There is evidence that in 1986 only about 3% of reported incidents involved serious physical trauma or neglect and 55 - 65% could not be substantiated.38

The United States data is very interesting in this respect. Substantiation rates that were around 40% from the late 1970s to 1990 began to decline to 34% by 1996.39 The range of substantiation rates however is enormous: in 1993 it varied from 14-96%. Whilst some of this variation is due to calculation methods much is probably attributable directly to substantiation rates themselves. Waldfogel discusses concerns that the substantiation rate is too low, and that there seems to be some agreement that it should be around 50%. Only 8 States were reported as exceeding a 50% substantiation rate, 11 (23%) had substantiation rates between 40-50%, and 60% of States have substantiation rates of 40% and below.[footnote: http://fcs.wa.gov.au/_content/miscellaneous/mandatory_reporting.pdf] Case against Compliance Societal There would seem to be a almost complete ban on any form of cofidentiality between persons or parties where the goverment has any degree of influence. This is a direct contrast to the overt push of the issue of personal privacy and the individuals right to protect it. Looking at the matter of personal privacy first, because it has, the author believes direct relevance to the matter under discussion. Personal privacy implies that there are matters, details and circustances that are of a personal nature and that every individual has the right to maintain control over who has access Human Rights The UNIVERSAL DECLARATION OF HUMAN RIGHTS Adopted and proclaimed by General Assembly resolution 217 A (III) of 10 December 1948 Article 12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. Article 18. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. It could be argued that the Bill as proposed effectively cuts across all three of the clauses above. Certainly the concepts of privacy, conscience and expression are significantly challenged by the Bill from the perspective of both the pastor and the child in question. Constitutional The Australian Constitution and its associated documents fail to give citizens any ``Bill of Rights'' in the traditional sense of the American Bill of Rights. The only reference to anything close is section 116, quoted below. Section 116 [Freedom of Religion, Secular State] The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.[footnote: http://www.aph.gov.au/senate/general/constitution/] Section 116 only provides for the exercise of any religion and by inferance any rules and rites of that religion. In saying this, it then becomes imperative to prove the pre-existance of that rule or rite. Also cited below is part of an analysis of implied rights and freedoms under the Australian Constitution. Express and implied rights and freedoms under the Australian Constitution The Australian Constitution contains no comprehensive Bill of Rights, but grants several express rights and freedoms, including, for example, a prohibition upon the Commonwealth to legislate with respect to religion (section 116 of the Constitution) and a freedom to engage in free interstate trade as guaranteed under section 92 of the Constitution. In 1992, the High Court held that the Constitution also contains a non-absolute implied right, namely the right to the freedom of communication on political matters. In the cases Nationwide News v Wills (1992) 177 CLR 1 and ACTV v Commonwealth (1992) 177 CLR

106, the High Court found that communication on political matters is an essential element to the operation of the political system in Australia and must therefore be protected from unreasonable legislative interference. Subsequently, this implied right has been further refined by the High Court. It is currently the only accepted one; further attempts to sway the High Court to accept other implied rights, such as a general guarantee of equality, have been unsuccessful. [footnote: http://www.oefre.unibe.ch/law/icl/as__indx.html] The above is not really much help in this matter. It is quite plain that there is virtually no appeal against the mandatory reporting rules based on leeway afforded by the Australian Constitution. Common Law Not covered in this draft paper Potential Effects on Individuals and the Church Effect of Disobedience In the event that a pastor or a person performing the role of a pastor or minister, does not report according to the provisions of the amendments to the Act, the following effects may be observed: • The person corcerned, would be brought to account under the provisions of the ammended Section 11(2) paragraph (ga) a minister of religion. This may result in a personal fine of up to $10,000. No indication is made if this fine is per offense or the total fine pool amount. The author would however suggest that a per offense interpretation is the most likely. Further, there is the potential to impose the fines in regard to the same alleged offense. This situation may occur where the matter has come before the court and a judgement has been issued for the information to be released. If the party still refuses to officially report the matter it may be deemed a new offence, however, the more likely outcome would be the offense of contempt of court. Regardless, there is potential for the fines to add up to significant amounts that may impact the personal financial and solvency of the accused. • Other non specified sanctions may be applied to the church as a whole. Although there is no direct mention of ancillary action against the authorising body, in this case the church, there could be a case made for accessory after the fact, if the church could be shown to have tasitly condoned the action. • The potential for the media to report the matter in a biased manner is a considerable possibility. Reporting headlines in the form of ``Youth Pastor Covers up Child Abuse'', ``Church

supports Pastor in Child Abuse Case'' or even ``Further Church related Child Abuse'' could be expected. Quite clearly all of the proceeding can be technically justified by the media agencies. The accuracy of the the words in banner is of course not in question but rather the emotional spin that is placed on the words. • The effect on the body of the church that this type of media attention would engender should be considered. • Public reaction to the matter would become a considerable concern. Potential for the matter to be lumped in with the other church related child abuse cases. A situation where, in this case there was no abuse performed by any member of the church. This distinction would be lost in the publicity of the matter and it could conceivably become public perception that the church and it's pastor were involved in the acts of child abuse. • The issue of damage to the out reach of the church, particularly the youth programs would be significant. Parent trust would almost definately be adversely affected. • Finally, but by no means insignificantly, there would be a continuation of the depreciation of the Work and Reputation of Jesus Christ in the eyes of the unsaved world. Effect of Compliance Considering the effects of compliance, the following may be observed: • The writer considers that the most significant effect would be the loss of confidence by the child in the pastor concerned. The pastor would no longer be seen as an impartial confidante, but rather just another part of a system that does not understand nor necessarily care about the issues affecting the child. • There is considerable potential for a government agencies to become involved in an issue too early in the process. In some cases there is no real need for government agency intervention. The matter may be resolved via other methods and processes. • The implication in reporting the matter is, regardless of government denials, that some offence has been committed. As a result there is immediately a bias against the alledged offending party. Should the alledged offender be subsequently found to have no case to answer to, there is still both a stigma and a long term government maintained and accessed file on all of the parties to the matter. These parties would include, the alleged offender, the alleged victum and the

reporting person (in this case a pastor). The author is aware that the South Australian Government claims that in cases where no offense is proved or no secondary report is received that the file is deleted, I would doubt this to be strictly true in all cases. Regardless of all the assurances, the author is convinced that the data would reside at the very minimum on some form of electronic backup device. Further it has been the very existance of that backup data in the past that has been used within the legal system; admittedly this was in another jurisdicton and did not relate to child protection, but the potential remains. Other Considerations This paper has considered some of the major factors in the implementation of the provisions of the Bill. Inspite of this the author is aware that a number of influences and circumstances have not been addressed. In part this is due to time constraints and in part problems determining the direction and expectations of the church oversight. This paper would be remiss if some of the other factors to be considered in this matter were not addressed, at least in dot point form. • There is potential for liability claims to arise for the church, based in part on the nature of the relationship between the church body and the actions of a pastor. Although this is not 'news' to the oversight, the author suggests that the church oversight consider the nature of this relationship. Essentially there are a number of ways that this relationship could be viewed; Employer/employee Master/servant Principal/agent Client/contactor • The effectiveness of individual petioning against the power of petion by the wider body of the church, whether on a denominal basis or georaphically. • The role of application of pressure to members of parlament regarding this matter, and how that pressure may be applied and managed. Allied to this is the question regarding the support or lack of support from 'Family First'. • The essential nature of the stand. Is this stand to be a silent stand? Will the individual and/or the local church say nothing

until a breech has been discovered and acted upon by the government, or will there be a 'public' declaration about the inappropriateness of legislation and a declaration of non-compliance? Conclusions In reviewing this matter, one thing has become very clear. There is little chance that sanity will prevail in this matter. The entire justification for the seemingly draconian measures put forth in this Bill, is based on the concept of performing child protection to its fullest. By implication any person or organisation that does not whole heartedly endorse and comply with the provisions of the Bill are, by default, against adequate protection of children. Further it could be suggested that anyone not fully complying with the provisions of the Bill is attempting to hide something; and that may be so. There are quite a few scenarios, where the revelation or reporting of information given by a child to a minister, would be an attempt to technically 'hide' confidential and matters discussed in private from premature revelation. There are times where pastoral care, must do what is in the best interest of the child. Many times the best interest is served by having a confidante, a listening ear and a non-judgemental advocate. This author fails to see how these basic essentials of a pastor/parishioner role could be met by unblinding adherance to a State statute, no matter how lofty it's clauses may sound. In the final analysis, The individual must decide if civil disobedience is warranted, either as a general precept or upon review of the individual case. Furthermore, the church, as a body of believers, should through it's oversight determine their position on this matter before an issue arises. There should be a concensus in what, if any, circumstatances civil disobedience will be a whole of church stance. As author of this paper, I cannot offer a definitive recommendation on this matter, instead I offer two quotes to ponder. We cannot, by total reliance on law, escape the duty to judge  right and wrong.... There are good laws and there are  occasionally bad laws, and it conforms to the highest traditions  of a free society to offer resistance to bad laws, and to disobey  them. ~Alexander Bickel Dare to do things worthy of imprisonment if you mean to be of  consequence. ~Juvenal (Decimus Junius Juvenalis)