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).

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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.