Sunday, November 18, 2012

Section 116

Section 116 – Commonwealth not to legislate in respect of religion 
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.
— Constitution of the Commonwealth of Australia

Hence, whatever Roxon, or Pyne, or any other Federal MP or Senator may say, by the Constitution of the land (drawn up by our forefathers, approved in referenda held across Australia, and enacted for us by the Queen, Lords and Commons back Home), the Federal Parliament has no power to interfere in the "free exercise of any religion" – as by attempting to force priests to break the seal of the confessional.

While American law does not apply in Australia, both jurisdictions stem from the same Common Law tradition; hence, the 1813 ruling made by a New York court in People v Phillips may be read as usefully persuasive at least, and admirably clear in its rational exposition:
It is essential to the free exercise of a religion, that its ordinances should be administered—that its ceremonies as well as its essentials should be protected. Secrecy is of the essence of penance. The sinner will not confess, nor will the priest receive his confession, if the veil of secrecy is removed: To decide that the minister shall promulgate what he receives in confession, is to declare that there shall be no penance...
Prior to the present moral panic, a learned article was published summarizing the legal status of what may be termed clergy-penitent privilege in Australia: briefly, it is protected by law in most jurisdictions (the Commonwealth, the ACT, NSW, Norfolk Island, the Northern Territory, Victoria, and Tasmania) but not in several others (Queensland, South Australia, and Western Australia), although there a shadowy Common Law privilege may be argued to persist – my first source was unclear as to the situation in some, but another search turned up further details.

The States, of course, having inherited the plenitude of legislative power from the British Parliament, possess all the residue not specifically granted to the Federal Parliament; it is they who may seek to pass laws that could "prohibit the free exercise of any religion".  If they attempt to do so, it will be the duty of Catholics to strive to oppose such wicked laws; if any such laws are passed, it will be the duty of Catholic priests to refuse obedience to such laws, opposed as they are to divine law, ecclesiastical law, and logic alike.

Moral panic has brought this on: if the secrecy of the confessional has been recognized and unquestioned until now, even in cases of murder, why then turn upon this privilege? After all, a moment's candid reflection will reveal that, given the great decline in the use of confession, even among the clergy, and the sad truth that those hardened in sin rarely repent and confess, not to mention the impossibility of proving that a priest had heard a confession involving a certain crime (short of police having obtained a warrant to bug the confessional), it is manifestly foolish to imagine – especially in the face of absolute opposition to this law by those it would affect – that such a bad law would achieve anything, other than an increase in bigotry.

Dog-whistling seems to be the underlying aim of these comments against the confessional: cartoons in newspapers daily display the Cardinal hearing the confession of the Opposition Leader.  "Dog-whistling" is of course the term that signifies the use of mutually understood references to attack a given person – it is notorious that the Opposition Leader is a Catholic, as are several other Coalition MP's, and these days to call someone a Catholic is to invoke a dark image of obscurantism and crime.  Time was, the very term atheist was an abusive epithet: but no one would bother to criticise our Prime Minister for her notorious atheism (just as to remark on her living in sin would, by what passes for etiquette in our present godless age, be regarded as rude as well as pointless, so common are such arrangements).


Anti-Catholicism remains an acceptable prejudice.  But would to God the Church's sinful members had not by their vile crimes brought such added opprobrium upon her!  As always happens, the hierarchy's negligence (perhaps, which God avert, even some connivance) regarding the perpetrators of such crimes has made these horrors even worse.  In a sense, we have our "betters" to blame for all this: corruptio optimi pessima.

Sad to say, when the Nazis tried to blacken Catholicism with accusations of perversion against priests, the Church was able to defend herself, for she had nothing to hide: secularists, whether motivated by sincerity or malice, are these days quite able to point out damning evidence of moral corruption within the Catholic Church.

I suspect that the Church has fallen into corruption because of laxity about doctrine and morals during the post-Conciliar period (not a time known for any certainty about either area, as is all too obvious): God will grant in His inscrutable, ineluctable Providence the trials and tribulations, yes, He even may permit the punishments and persecutions – amongst which these threats raised against the seal of the confessional may be counted – that will serve to purge out His errant Church.


HolyCatholicApostoli said...

Canon Law states
"Can. 1388 §1. A confessor who directly violates the sacramental seal incurs a latae sententiae excommunication reserved to the Apostolic See; one who does so only indirectly is to be punished according to the gravity of the delict."

Apparently, "PRIESTS and clergy who refuse to break the seal of confessional before the Royal Commission face being jailed for six months."

This is indeed an attack on the Catholic church and is the beginning of a return of pagan persecutions of the Church, whereby a priest must decide to remain Catholic and go to jail, or to be a "free man" but cease being Catholic (as the penalty of excommunication applies to the breaking of the confessional seal)

I found the following article interesting and eye-opening.
The great anti-Catholic witch-hunt

Joshua said...

Don't believe all you read in the Herald Sun! (It's generally better than The Age, that anti-Catholic rag, but that's not saying much.)

If the Royal Commission is set up by the Commonwealth government, as it appears it will be, then Commonwealth law will apply to it; and the law is clear, for section 127 of the Commonwealth Evidence Act 1995 protects such rights:

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 if the communication involved in the religious confession was made for a criminal purpose.

(3) This section applies even if an Act provides:

(a) that the rules of evidence do not apply or that a person or body is not bound by the rules of evidence; or

(b) that a person is not excused from answering any question or producing any document or other thing on the ground of privilege or any other ground.

(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.

Joshua said...

So, unless the Parliament is to legislate to amend or remove this section, I think the seal of the confessional is intact even under secular law, for the moment.

In any case, priests are hardly likely to just give in, even if harried, since this is a matter of loyalty to God.

As another wise soul noted, when a priest hears confessions he only knows what little he is told: if a penitent (unseen behind the grille, with a voice perhaps not recognisable) at some time in the past confessed to a priest even a dreadful crime, the priest would only be told the barest details (for one must confess mortal sins by kind and number, but not explain when, where, how or why they happened, except to the extent that such details specify the mortal sins as still worse or perhaps somehow less grave): in other words, the details divulged in confession, even if they were free to be revealed, could well be of very little use to the police or court.

HolyCatholicApostoli said...

Thank you for very informative and useful reply.

It may be worth noting that in Ireland, it appears that Irish priests must break seal of confession or face prison

I also found the following article from MercatorNet quite interesting
Healing a culture of abuse

Also, to go on a tangent, in your opinion, which Australian secular newspaper do you consider to be the most truthful, reliable, least anti-Catholic, etc.