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Father Frank Brennan: “I would see it as a fundamental interference with the usual separation of church and state, but subject to section 116 of our constitution, yes, these things can be done, particularly by state parliaments.”

McClellan: “Yes, it could be done. Does that carry with it, though, an assumption that we would have the authority to make such a recommendation?”

Brennan: “I think you would have the authority to do it. Whether it would be prudent to do it in terms of maximising the prospects both of the acceptance of your recommendations and of your recommendations being seen to be universally acceptable to all, regardless of religious affiliation, I think that could become politically problematic.”

McClellan: “We’ll have to gauge that.”

Dr Joseph Grayland has told the royal commission that it is “probably engaged much more in a theological task here than maybe it even realises or that the Commonwealth gives it permission to have, because you’re in the process of changing the mindset of the Roman Catholic Church and in that you’re changing the theological basis and you are in the process of that evolution”.

McClellan: “Can I just expand the discussion to make it even more fraught. If we were to recommend that the obligation to report includes an obligation on a priest to report when a person confesses to a sexual crime against a child in the confessional, first of all, would that be beyond our remit, do you say, to make a recommendation in those terms?”

Brennan: “I don’t think it would be beyond your remit, and if parliaments were minded to pass such a law.”

Brennan said priests could decide, if that happened, to no longer hear confessions, or to breach the seal of the confessional and be stripped of their faculties by the church (so that they could no longer act as a priest), or refuse to comply with the law and face action under secular law.

Brennan went on to say that he was troubled by the case of the woman whose father took comfort from confessing he sexually abused children.

Brennan: “So that, in good conscience, is as far as I have been able to take it in terms of trying to see how can we prudently amend not only the law but the practice of confession by priests so as to maximise the prospects of protecting children in the future.”

Professor Ian Waters has told the royal commission that the church had heard the confessions of children for 100 years, but the age had been lowered to six or seven and he had “great problems” with that.

“I wonder whether children of 6 or 7 can cope with these adult concepts,” Waters said.

McClellan: “The civil law rather suggests not.”

Commissioner Fitzgerald has put the following to the royal commission: “It’s very clear to most of us that there is now a lack of confidence is either a genuine or a misunderstanding of confession, and notwithstanding that most of you, in fact all of you, have indicated that you have not had personal experience of this, to the world at large confession is one of those dark parts of the Catholic Church which they don’t fully understand, but may I say the church doesn’t fully articulate to anybody, including its own people.

“So if the public policy is that we want to have a church, an institution, that is safe for children, people are going to want something from the church, irrespective of legislated or otherwise,” Fitzgerald said.

“The question for all of you is now do you build confidence in the community, including the Catholic confidence in the community, that this particular aspect of church has in fact been reflected upon, is in fact child-safe, and advances the well-being of people that have been abused within our society.”

Brennan has told the royal commission the following: “To put it very bluntly, though most of you are not members of the Catholic Church, nor pride yourselves as theologians, you have been the de facto confessors of the nation on this particular issue now for four years. You have far more experience pastorally on these things than even all these learned professors and bishops I am surrounded by will ever have.

“What publicly can be said in terms of patterns in confession where there have been problems and where the church is put on notice that pastorally and theologically you have to come to terms with this?” Brennan said.

Commissioner Murray has just asked questions of Brennan in terms of possible recommendations by the commission to the Catholic Church.

Murray: “If we were to go the route you have put your finger on, which is making recommendations to the church, is as to what kinds of reporting you think should be obliged of priests in the confessional.”

Moral theologian Father Laurie McNamara has told the royal commission he only hears one or two confessions each week because confession figures had plummeted.

3.25pm: The earlier panel has ended and a new panel on the confessional has started.

The panel is on the confessional. Participants are sacramental theologian Dr Frank O’Loughlin, canon lawyer Professor Ian Waters, liturgical theologian Dr Joseph Grayland, Catholic Social Services Australia chief executive Father Frank Brennan, moral theologian Father Laurie McNamara and Melbourne Archdiocese auxiliary bishop Terence Curtin.

In her opening address this morning counsel assisting the royal commission, Gail Furness SC, noted that the practice of confession was declining in Australia, for both adults and children.

Confession, for non-Catholics, is where a person goes to a priest and confesses their sins. The opening words, which even lapsed Catholics can remember, are: “Bless me father, for I have sinned. It is (insert length of time here) since my last confession, and these are my sins.”

Previous public hearings have heard evidence from a priest who said another priest confessed that he sexually abused a child, and the priest felt constrained in the action he could take; evidence from witnesses who told a priest during their confession of their sexual abuse by another priest, and the abuser priest was told; evidence from a witness who was abused by a priest and refused permission to visit any other priest for confession. The offending priest told the witness it was not a sin to ‘have impurity with a priest’ but that it was a mortal sin to tell anyone about it.

Father Frank Brennan has told the royal commission about writing an article that appeared in a newspaper, in which he wrote that no one had ever confessed “paedophilia” to him.

Royal commissioner Jennifer Coate had a private session with a woman who wrote to Brennan within the last 24 hours, telling him that her father was a Catholic and a serial abuser who went to confession regularly, and to priests who readily forgave him.

Brennan said such forgiveness “we might call very cheap grace and that he somehow felt vindicated in that and then went on to further abuse children in that family”.

“To me that is an absolutely shocking and appalling thing,” Brennan said.

“I ask myself if you take away the seal of the confessional, is it any more likely that anyone will come to confession and confess paedophilia?”

Justice McClellan has responded: “There might be another component to that, though, father, because the confessional – and I’m not a Catholic but as I understand it – provides for absolution, reconciliation, by the penitent. So as an outside, although what you say may have some force, nevertheless the assumption must be that the person making the confession believes that they will be in some force, nevertheless the assumption must be that the person making the confession believes that they will be in some way benefiting from the reconciliation that follows, and it’s that offer made by the church which I think you might find the general public might have some problem with.”

McClellan has put to the hearing that “It may be that we need to explore the prospect of the priest not offering absolution until the priest is satisfied that report (to police, or authorities) has been made. Now, I take it at the moment that wouldn’t be the case, necessarily, but that might go part of the way to dealing with the issue that’s in the public’s mind.”

2.12pm The royal commission has resumed.

Counsel assisting the royal commission Stephen Free is exploring the canon law requirement for each diocese to maintain a secret archive.

Sister Moya Hanlen said she thought the word “secret” was a bit misleading.

“I’m sure in this building there are professional archives that are severely restricted to some people, and I think that’s how we need to interpret it. That does not mean that, if requested by civil authorities, they cannot be made available. That is my understanding and it has been my practice,” Hanlen said.

Tapsell has disagreed with that interpretation.

Tapsell said in Ireland a monsignor said he could not produce documents because of his obligations under canon law.

Commissioner Atkinson has asked a question of Sister Hanlen.

In private hearings survivors had said they would feel a sense of justice if priests, even with dementia, had been defrocked.

Atkinson: “What victims are saying to us is that whether the person is a sports coach, a schoolteacher or a priest, they should be permanently and absolutely disqualified from holding that role, and it’s important to them. That’s what they’ve conveyed to us. I was asking whether it’s a possibility and you don’t seem to be excluding it entirely as a possibility?”

Hanlen: “No, I believe it is worth thinking about.”

Barrister Peter Gray, SC, for the Catholic Church, is now questioning panel members. He is putting a question to Dominican priest Tom Doyle, picking up on Doyle’s evidence that bishops didn’t necessarily follow church processes for handling child sexual abuse.

Doyle is being questioned about the 1922 church document Crimen Sollicitationis, which imposed the secret of the Holy Office on all information obtained by the church in its inquiries and trials for soliciting sex in the confessional, homosexuality, bestiality and the sexual abuse of children.

Doyle said attorneys in America thought Crimen was the smoking gun that showed the church wanted to bury the issue of child sexual abuse, but Doyle did not agree.

While the secrecy was to “keep this thing under wraps and don’t let it become known”, but it related to the culture of the church.

Doyle: “I was questioned about that, but my response was, no, it is not a conspiracy, it’s a part of the ecclesiastical law, but the secrecy is more a part of the culture, that Crimen responded in many ways or supported an overall culture of secrecy.”

Doyle is now questioning what divine law is, after there were questions about it. I appreciate him picking up on that point because I had just asked the other journalists in the media room here at the commission how they interpreted divine law, and what is covered by it. We thought it might have been the Ten Commandments.

Here’s Doyle: “When we use the words divine law, it’s a very broad term and I’ve always wondered who has the authority to interpret and determine what is divine law? At one point in history in my country it was considered God’s law, divine law, that blacks and whites be separate and not necessarily equal. Now that today would be looked upon as ridiculous, but it was considered to be God’s will. I have sometimes a question, how do you interpret, who says what is divine law?”

Tapsell is not happy with Austin’s comments on oaths by bishops and church officials and whether the church or canon law conflicts with civil law.

Tapsell: “My problem with that is in terms of the practical situation of the church. Bishops swear on oath of loyalty to the Pope. Officials swear oaths to obey all ecclesiastic laws. They take no oaths to obey civil laws.”

Justice Peter McClellan, bless him, has just interjected during discussion between the canon lawyers about church law which, to put it bluntly, is bordering on the bizarre, particularly because of the Latin terms sprinkled throughout.

McClellan: “You realise, all of you, that to outsiders, the fact that you all sit here and discuss whether or not something exists or doesn’t exist, when it’s part of church law, is an extraordinary proposition. Has anyone ever thought about codifying all of this?”

As I write this a journalist to my left has just declared “Dear Lord”, because she’s trying to follow the argument and produce a coherent article at the end.

Canon lawyer Dr Rodger Austin has responded, and his answer is interesting.

He has referred to how the Code of Canon Law was established – in 1917, then later revisions. He said church law was being “looked at in terms of renewal”, and “I think Father Doyle and Sister Moya would also say the wording in some of the canons should never be there, because it would be far better if it was written in a clear way. That is an inherent problem that needs to be worked out. Perhaps it’s only cases like this that come to the fore and point up the difficulties we’re facing in regard to that, and in that sense this is the service that’s being done by these conversations.”

Here is a sample of one of the questions at this public hearing, from Gray, SC, to Austin: “Is it your view that article 1-4, at least in the Latin, being all one sentence, is conjunctive rather than disjunctive, so that what is caught by the secret is only complaints or denunciations which give rise to a canonical process.”

Austin: “That is correct.”

Despite the above, we are getting to the nitty gritty about how state criminal laws and church laws work on the issue of child sexual abuse.

Here is Kieran Tapsell on why this is important.

Tapsell: “I agree that canon law has an overlying thing, and it’s set out in the very last canon of the code, that the supreme law of the church is the salvation of souls. The problem is – I mean, I accept what my friends say, they would regard reporting as being for the salvation of souls, if you like, that these children should be protected.

“The problem was historically the salvation of souls meant covering it up, because scandal was – has a technical meaning in the church, and it means that people will lose their faith because they see how priests are behaving, and that’s all the way through it. You go to the Victorian inquiry – that’s what Archbishop Hart admitted, it was done to stop scandal.

“You can say that under that overlying thing, that required the cover-up.”

Austin has been explaining different codes, Pope Leo XIII’s statements from 1885 telling people they should abide by the laws, and it started getting a bit confusing.

Justice McClellan, bless him again, just asked the following: “Why wouldn’t it be better just to have the law say that you should all comply with the civil law? Why go through a circuitous route to get to the answer?”

Austin: “I don’t think it is circuitous if you accept that not all our obligations are tied up in one code of law, one book of law, as Dr Doyle said.”

McClellan: “Why couldn’t there be a law somewhere that says: you must comply with the civil law?”

Austin just gave an extremely long answer about the interplay between the various church codes.

McClellan responded: “Why not a general obligation to obey the civil law, full stop?”

Austin: “But it’s already there. It’s in Canon 754 that says we obey the teaching of the church. If the church says obey the civil law…

McClellan: “Maybe I’m just an ordinary common lawyer, but we normally say things in common words.”

Austin: “Does that mean we need a list of every single thing in the teaching of the church where civil law makes an obligation, we list all those?”

McClellan: “No, no. Just say: obey civil law.”

1.23pm The royal commission has adjourned for lunch, later than normal, after a fascinating investigation of the interplay between canon and civil law. For the purists, I suggest you look at the transcript of today’s evidence when it becomes available on the commission’s website this evening, and read Kieran Tapsell’s submission, avaiable below. For everyone else, I will attempt to condense it into a 600-word article. This might take some time.

12.01am The royal commission has resumed after the morning tea break.

Counsel assisting the royal commission Stephen Free is questioning the panel about how canon law required bishops to adopt a pastoral approach to abuser priests, rather than taking more serious steps when allegations of child sexual abuse were raised.

Austin said the origin of canon law viewing punishment as a last resort dated back centuries.

Austin is giving a long answer, but the gist of it is that a particular part of canon law took the pastoral approach, but if the allegations were horrendous and a bishop ascertained the law was not appropriate, “then you go immediately to a penal process”.

“If it is clear that adopting an approach to try to resolve the problem without a penalty is simply not appropriate, then you go immediately to a penal thing,” Austin said.

He hasn’t explained what going to “a penal thing” is, under canon law.

Doyle said he had seen that particular canon, 1341, – “what’s called the pastoral approach, consistently misapplied and used as an excuse to justify lack of action”.

“Given the reality of what the crime is, the focus seems to have been consistently on the priest, either getting him off the nook, taking care of him or punishing him in some way,” Doyle said.

“This business of a pastoral approach to deal with a man who has been accused of committing sexual violation of a child is nuts.

“The best interests of the victim should be the overriding concern in applying the law. The best interests of the victim is not necessarily finding any way to exonerate the priest or any way to remove oneself from accepting the obligation of acting decisively in the face of an accusation.

“I don’t know of any explicit canon that says that the interests of the victim have to take precedence or have to be sincerely considered.

“I think that if there was one, a lot of our discussion would have been changed somewhat significantly. But the fact is there hasn’t been, and I belive the focus has been on the perpetrator, on the priest.

“The question of justice and scandal are significant, and we’ve seen enough of the results of priests who are allowed to get off the hook, so to speak. That’s where the scandal is. It’s the lack of decisive action, not the fact that he has done something evil, but that this has been enabled by ecclesiastical procedures.”

Free has asked if the content of canon law is partly to blame for bishops applying a pastoral response, which Doyle has said is a misunderstanding of canon law.

Doyle: “I I think the canon itself is a good one and it has a real role in the life of the church, if it is applied within the context where it would be intended.”

Hanlen said she was “overwhelmingly of the opinion that where we are dealing with the sexual abuse of children, we deal with the civil processes first, before we bring any canonical processes into play”.

Tapsell said the evidence was almost unanimous that canon law 1341 required the pastoral approach.

He is now citing a 1998 case in Milwaukee involving Laurence Murphy who sexually abused 200 deaf mute children. The archbishop looked at whether he could be dismissed, and found it was time limited. The offences were before the time limitation.

The Congregation of the Doctrine of the Faith in Rome started a trial. Murphy said he was old and incapacitated, and a letter was sent to the archbishop to try the pastoral approach.

“So they go to Rome and sit down and the minutes of the meeting are quite clear: if you proceed to dismiss this priest, we are going to overturn it. So he had no alternative but to stop it,” tapsell said.

Tapsell said there had been no indication from the Vatican to change that canon.

Any changes that had been proposed did not include looking after the child victim.

Doyle has backed what Tapsell has said.

Doyle: “The most blatant example is the one that Mr Tapsell mentioned, that I know of, which was the 200 deaf mute children. Not only was that man allowed to live out his priesthood, there was a rule, a command issued that he was not to be buried publicly as a priest. They violated that. A major slap in the face of at least 200 men and their families and the community. But that’s the reality that we have to deal with in trying to figure out why canon law doesn’t work coherently. It is because the pilot in the cockpit is sleeping.”

Tapsell is now explaining how, after 1974, because of the pontifical secret, a complaint to a bishop by someone who had been sexually abused could not be reported to the police, but if a bishop walked into a room and found a priest sexually abusing a child, he could report it.

Tapsell has cited Victoria, where there was no requirement under law, until 2014, for people to report serious crimes to police, so the Catholic Church did not report more than 600 allegations to police. Not one.

Tapsell is disagreeing with Austin who says there is nothing in canon law to stop reporting to police.

Free has put to Tapsell: “Your evidence is that the effect of the pontifical secret is to require secrecy on the part of everyone who is made aware of an allegation or of an incident only by way of the extrajudicial denunciation.

Tapsell: “That’s right.”

Free: “And then any subsequent step in the canon process?”

He said yes.

Free: “And so your evidence, if we turn to the question of what impact canon law has on the capacity of people to report allegations of abuse to civil authorities, is it your position that pontifical secrecy precluded that prior to 2010, even if the civil law required it?”

Tapsell: “Exactly. In 2010 there was an announcement by the Vatican that bishops should obey any civil laws relating to reporting. I don’t think there is any doubt that if there were no civil laws requiring reporting, then the pontifical secret still applies. So Western Australia and Queensland, for example, just to take two – bishops are under an obligation not to report under canon law to the police. It doesn’t matter what Towards Healing says. Under canon law. towards Healing is not canon law. Now I would take my hat off to them if they breached it. So they should. But it is still the law.”

Justice Peter McClellan has asked Tapsell if he thought it was within the proper exercise of the commission’s authority to be recommending a reporting obligation in canon law that goes beyond the law of the state or states in this country?

Tapsell: “This problem in canon law can largely be overcome by universal reporting laws because then there will be a useful reporting law.”

McClellan: “The question is whether it is a proper exercise of our power to make a recommendation that the church do something which the state doesn’t do. It may be, of course, a very good thing for the church to do it – indeed, it may be the right thing for the church to do, having regard to the church’s foundations and principles. The question is whether it’s proper for us to step into that space.”

Tapsell: “Your Honour, you raised this question before, and that is whether or not the welfare of children means that this recommendation should be made. This covers right across everything – canon law, structures, everything. As I understand what was coming from the bench, if the welfare of children is involved, then my answer would be the same as what I thought was sort of indicated for the last few days, yes.”

McClellan: “Of course the problem would disappear if we were to recommend that every state enact legislation, would it not?”

Tapsell: “And provided they did, of course.”

McClellan: “We can’t control that. We can only make recommendations. But that would remove the problem in Australia.”

Commissioner Murray said the royal commission “will indeed make recommendations to the Commonwealth and the states of Australia to change laws, and we will be specific about that”.

“We will also make recommendations on principles to be adopted in law by institutions, in administration. So one question is whether it is proper for the royal commission to recommend against our remit consideration of legal changes to the church; the other side is whether it is proper, in your view, for us to recommend principles. Today we would discuss a principle such as acting in the best interests of the child or acting in the best interests of victims. What is your response to that line of approach from the royal commission?” Murray asked Tapsell.

Tapsell: “If it’s in the interests of children or the protection of children, then it is quite appropriate, I would have thought, that the royal commission make changes to canon law.”

Free is asking Austin what happens to a bishop who receives a complaint of historic child sexual abuse.

Austin: “If a bishop is presented with an allegation in terms of child sexual abuse and that matter proceeds, then he and anybody who is either delegated by him or caught up in that work is bound by it. I myself have done a preliminary investigation in that context. I’m bound by the pontifical secrecy of what I learnt in that.

“It is quite clear that the law of the church said if you are part of this process, wherever you fit into it, then you are bound by the pontifical secret. That law never said to the victim, ‘You cannot go to the civil courts’.”

Free: “Can I ask you to focus on the situation not of the victim, but of the bishop or the vicar general who receives the complaint of abuse and they are in a state or jurisdiction which doesn’t have a legal requirement at civil law to report, but they consider ‘I think this would be a good idea to go to the police and tell them this serious criminal allegation’. Is the effect of what you have said that the pontifical secret does preclude them from doing that?”

Austin: “No, that’s not my conclusion at all.”

Free: “Why not?”

Austin has answered by referring to the 1917 Code of Canon Law and in the 1983 Code of Canon Law, “there is a canon that says Catholics are bound by the teaching of the church”.

“Now if the teaching of the church says you observe the civil laws, then that applies to this case,” Austin said.

Free: “But Dr Austin, if you are referring to that or Pope Leo 13th’s statement that says observe the civil law, that has no application, does it, if the civil law doesn’t actually require a report and we’re considering the situation of a voluntary report?”

Austin: “What I’m saying is that Mr Tapsell’s fundamental legal principle is that a moral obligation must be articulated in law for it to be legally binding. My response to him is in canon law there is a law that says you must follow the teaching, therefore, a bishop or whoever must report.”

Commissioner Fitzgerald: “Putting aside reporting to the police and putting aside reporting to child protection agencies where there is a child or children at risk, one of the things the commission is looking at and is likely to recommend are reportable conduct regimes similar to that which exist in NSW, and we have put out papers on that. Is there anything in canon law that in fact inhibits the information that can be provided in that arrangement? That is, where you report the incident and then you must report on the conduct of the investigation and its outcomes? And so the civil authority, the ombudsman in NSW or the Children’s Commission in Victoria, where they are enacting similar laws, will require details of the investigation itself. So where there had been a canonical process, putting aside criminal, is there anything in the canon law that will in fact restrict the ability of the Catholic authorities to disclose fully all of the aspects of that investigation from notification right through to the end, irrespective of criminal or child protection legislation?”

Austin: “Commissioner, if a view is taken that the current legislation of confidentiality precludes that from happening, the clear message, from the facts before the commission, is that must change.”

Fitzgerald: “Is there anything in canon law that would prohibit a church fully disclosing all aspects of the investigation, if the Catholic Church is in fact covered by that legislation, because parts of the religious institutions are not covered currently in various jurisdictions?”

Austin: “If it’s required, then it’s required. All I’m saying is that if people argue that we have a law of confidentiality that prohibits it, well then that law has to be changed so it is very clear that we must comply.”

McClellan: “That might be so, but the question is: is there such a law at the moment?”

Austin: “That we must comply.”

McClellan: “That you must not comply… that would have the effect of saying you must comply?”

Fitzgerald: “Or being more specific, even if you were to report the incident to the Ombudsman, would it be possible for a bishop or an authority leader to say ‘Well, we will tell you about the investigation, we will tell you about the conclusion, but you are not entitled to access to any information about what the process of and what was conducted in the investigation’, which is the very purpose of reportable conduct?”

Doyle: “Are we to understand, your Honour, that what you are referring to is the information that has been gathered, let’s say in the investigation?”

McClellan: “The question is whether there is currently in canon law anything that would prohibit the church leader from providing to the ombudsman materials sufficient to enable the ombudsman to determine whether or not the investigation was appropriate?”

Doyle: “That’s what I was trying to get – make a comparison between our own system where documents such as that are subpoenaed in the civil courts…

McClellan: “It is different to that. This is an obligation to report.”

Doyle: “I don’t think there is anything that would prohibit the reviewing of documents, the facts and the details of the investigation.”

McClellan: “It would be a significant intrusion in practice, and I could imagine some church people might not like it.”

Doyle: “I’m sure they wouldn’t like it.”

McClellan: “But you don’t think there is a prohibition in the current law that would conflict with a state law that required that level of reporting?”

Austin: “I don’t believe there is anything in canon law that stops that. On the other hand, I would say if what this royal commission has unearthed about our way of proceeding, then it is high time that there is an independent referee to make sure that the procedures that we have in place and the way they are handled are in fact in accordance with the demands of justice and the protection of children and making sure we know that we can never repair the harm that has been done, then this is a matter that needs both church and state to collaborate together in the interests of the children.”

Austin: “I think if people say this law says that, we are making the law more important than the children, and I think that has been the problem all along.”

Commissioner Fitzgerald: “Is there anything that once a canonical process starts would inhibit a church leader from disclosing any of that information to the civil authority?”

Austin: “I think they (the Vatican, presumably) would probably say that because this process is under way, and there is another process under way, then is what is said in here and what is said in there affecting the two different processes?”

Austin said, regardless of that, the civil or criminal case under state law, rather than church law, should have priority.

Commissioner Murray: “There is an assumption behind your answer that the documentation attached to the canonical process will remain in Australia. We know from our own experience that documents we would wish to have access to are not available to us because the instruction has been to send them to Rome. So will that not be an impediment, if Rome says to a bishop, ‘Send us those documents’?”

Austin has given a long reply, leading to a comment from Justice McClellan: “What that means – which is our experience – when documents are generated in Rome in relation to a perpetrating priest they won’t be available to civil authorities in the state where the priest lives. That’s what it amounts to.”

Austin: “I don’t think there is any simple answer to how we do it.”

McClellan: “There is no simple answer, let me assure you.”

Austin: “If the commission states clearly, ‘These are the problems and they have to be addressed in the interests of children’, that would be a very significant step forward.”

Kieran Tapsell challenged Austin on the evidence he gave to the 2013 Cunneen inquiry into child sexual abuse allegations in the Catholic Church in the Hunter region, on the issue of secrecy.

Tapsell read out a section of Austin’s evidence at that inquiry, where Austin was asked a question about secrecy, and whether someone who had taken an oath of secrecy to the church would be restrained by canon law from giving full evidence in, say, a NSW criminal court.

Austin replied: “I think if it was a matter where the law clearly stated that – I’m thinking, for example in tribunal work where confidentiality is involved, if what was said, that what you learned in that process had been given under civil law, my view would be that one would seek to be dispensed from the obligation of that particular case.”

Tapsell: “If you need a dispensation, there must be an obligation not to reveal to a civil court.”

11.38am The royal commission has adjourned for the morning tea break.

10.03am The royal commission has resumed for a panel hearing into church discipline and secrecy.

Counsel assisting the royal commission, Gail Furness, SC, is just introducing the four panelists.

The hearing will consider canon law, which is the body or system of laws and regulations created by Popes and councils of the church. The first Code of Canon Law was promulgated, or put in place, in 1917.

That code was repealed and replaced by the 1983 Code of Canon Law promulgated by Pope John Paul II.

Furness said the first issue to be considered is the relationship between canon law and civil law. Civil lawyer Kieran Tapsell is expected to say that bishops and other senior church officials have a special obligation to follow canon law where it conflicts with civil law because of the oaths they make.

Canon lawyer Dr Rodger Austin is expected to offer a different interpretation.

The next issue is the process by which canon law sets out investigating allegations and determining outcomes.

The hearing will consider whether a church instruction from 1922, amended in 1962, imposed the “secret of the holy office” on all information obtained by the church in inquiries involving soliciting sex in the confessional, homosexuality, bestiality and the sexual abuse of children.

Tapsell is expected to say the secret of the holy office imposed “a permanent silence that bound not only the bishop and those involved in the canonical inquiries and trials, but victims and witnesses who were sworn to observe that secrecy on pain of automatic excommunication from the church, which could only be lifted by the Pope personally”.

Tapsell is expected to say this created “a de facto privilege of clergy by the use of secrecy”.

The privilege of clergy was an ancient privilege granted to the church by the Roman emperor Constantine in the 4^th century, which gave clerics the right to be tried in church courts rather than civil courts.

Austin is expected to give evidence that the purpose of the secret of the holy office was to protect the reputation of any person involved and to enable those involved to speak freely. His statement is that at all times before, during or after the canonical process a victim had the right to take the matter to the secular courts will be explored.

The hearing will consider Pope Paul’s 1974 instruction, known as the pontifical secret.

Tapsell is expected to say this expanded the church’s highest form of secrecy, and more than doubled the number of people in the church who would be covered by the pontifical secret in cases of sexual abuse of children.

Tapsell is expected to say the pontifical secret permanently prohibits the publication or communication of any such allegations and information, even after the trial has ended, including the judgment of the canonical court. The church canon lawyers on the panel will be asked their view on this.

The hearing will be told Pope John Paul II in 2001 confirmed that the pontifical secret still applied.

The public hearing will consider the relationship between canon law and reporting to civil authorities.

Dominican priest Tom Doyle is expected to give evidence that the Catholic Church’s canon law system has been a hindrance to effectively dealing with sexual abuse. He is expected to say that it is impossible to determine how many cases of sexual abuse were hidden by the bishops’ adherence to canonical secrecy and how many were hidden by a wider culture of secrecy in the Catholic Church.

Austin is expected to tell the commission there is “no doubt whatsoever” that where the civil law does not require the reporting of allegations or crimes of the sexual abuse of minors to civil authorities, bishops, religious superiors and other church officials are not under any legal obligation to report.

Austin is also expected to say canon law explicitly states that all documentation pertaining to the preliminary investigation into any alleged canonical offence, including the sexual abuse of minors, must be kept in the secret archive.

After the first panel the royal commission will hear evidence from a second panel including Catholic Social Services Australia chief executive Father Frank Brennan. This panel will consider the church sacrament known as confession.

Previous public hearings have heard from people where the confessional was used to hide child sexual abuse crimes, intimidate children and alert abuser priests.

In a church study eight out of nine abuser priests confessed their abusing to other priests. For those men the confessional “provided a site for them to acknowledge sin or wrongdoing and a space to ease their guilt after abusing”.

Counsel assisting the royal commission, Stephen Free, will question the panelists.

He is just questioning canon lawyers Sister Moya Hanlen and Dr Rodger Austin, who trained as a priest but is not now one.

Free has told the royal commission canon law overlaps with civil law – what we know as the law of the land that makes some things criminal offences, including child sexual abuse – which Austin has qualified to say he prefers the term interface.

Austin said the 1917 Code of Canon Law included “an express concept of a mixed forum” – the interface between church and civil law.

Free: “Does canon law have a general rule about whether canon law or civil law prevails in the event of an inconsistency?”

Austin: “No it doesn’t.”

Austin has just provided a lengthy answer, but objects to Tapsell’s interpretation that canon 22 is a statement about conflict between civil and canon law.

Tapsell said he was not a canon lawyer, but relied on what canon lawyers said. He quote from a canon law professor, that: “Where the civil law conflicts with divine or canon law the latter prevails. Canon law does not yield to civil laws in general but only in certain matters. While both are binding within separate but parallel systems, the canon law prevails whenever it conflicts with the civil law.”

Sister Hanlen said Tapsell was taking a narrow view.

We are now listening to a number of people quoting different Bible tracts, different interpretations of those Bible tracts, the writings of St Paul, the Ten Commandments, divine law, and I’m afraid it’s not really translatable here. We are dancing on the head of a pin, as interesting as that is.

This is extraordinarily important though. The issue is whether church law, as arcane as some of it is, is a contributing factor to the global tragedy of child sexual abuse, and remains an impediment to the church seriously addressing how it presided over that tragedy.

Free has just asked the panelists to comment directly on whether canon law played a part in impeding the church from responding appropriately to allegations of child sexual abuse. 

Dr Tom Doyle: “Canon law has been used as an excuse in some instances by ecclesiastical authorities for not proceeding, and taking direct action against reports of sexual abuse. It has been used as an excuse for not reporting to civil authorities, and it has been used as an excuse for allowing accused clerics to continue in ministry.

“Contrary to those excuses, it is possible to look into the canon laws, the code, the laws that that are in the code, and find instances that did empower a bishop to do something significant when he received a report.”

Doyle said he also knew of instances in many countries where bishops have “completely bypassed” canon law, where “the rule or the norm that was governing this action was expediency with regard to protecting the image of the institution”.

He has described an example, where a bishop removes a priest secretly and sends him to another parish.

“That’s clearly outside of canon law, because you are dealing with a man who is suspected or known to have committed crimes that put children at great risk,” Doyle said.

He said some church officials used secrecy as an excuse not to follow canon law, and the provisions that were possible weren’t followed.

Child sexual abuse itself had been used by some churchmen as a reason not to impose the ultimate penalty, dismissal, because canon law stopped the ultimate penalty where a mental disorder was involved. Child sexual abuse, paedophilia, was in some cases used as reason for a mental disorder.

Free is asking Hanlen if she felt canon law was an impediment to taking action on child sexual abuse issues.

Hanlen: “My experience is very limited. I have not been in this field very long at all, and that has been my experience (that canon law is not an impediment). If the law has been applied well and procedurally, and if the substance is there, the result that was required is got.”

Hanlen has referred to the notorious Nestor case where a priest appealed to the Vatican after action by Australian church officials.

She has also referred to a case where a priest wasn’t dismissed after a canon law process because he had dementia, and was placed in an aged care facility.

McClellan questioned Hanlen about why he wasn’t dismissed, and the church could still put him up in an aged care facility.

Hanlen said if he was dismissed the church wouldn’t have had control over him.

Doyle said the code of canon law provided what should have been necessary to deal with the issue of child sexual abuse of children by clerics, “if they were properly applied, in an equitable, intelligent manner”.

He said there were problems “encountered at the top level” which led to “totally unacceptable delays for reasons that are never revealed”.

Doyle said another problem was the code of canon law was “very, very, very, very rarely used” to deal with child sexual abuse cases, “and so what you had there was a wholesale negligence and abuse of what could have been done”.

Austin is talking about the case of John Ellis, which was the subject of an earlier commission public hearing into the Catholic Church. He strongly criticised the church’s handling of that case which was “a complete violation of gospel teaching and indeed of canon law”.

Tapsell is now talking about his view of features of canon law that had contributed to the problem of the church’s response.

Tapsell: “When you actually look at canon law, up until 2001, there was a five-year limitation period. That meant that unless, if the child was 10, was sexually abused, if they did not complain to the church by the age of 15, the canonical crime, which would allow for dismissal, disappeared.

“The Catholic bishops did a survey in 2000 as to how many cases – and they examined 400 of them – were outside the limitation period. Well, put it the other way: how many were inside? 3.2 per cent of all of those cases. They could not be dismissed. That doesn’t mean that nothing could be done. They could have their faculties removed, for example. But that was not a permanent thing,” Tapsell said.

Tapsell rejected Hanlen’s point that the priest who had dementia couldn’t be dismissed because if he was, the church would have no control over him.

Tapsell: “The point that she makes is that if he’s not dismissed, the canon law requires the church to look after him. But if he is dismissed they can still look after him, just like they do with lots of people who aren’t even priests.”

Hanlen has replied and said if the priest was dismissed he could say he didn’t want to go to the aged care facility the church chose.

She then went on to depict the aged care facility as akin to a penitentiary of some kind.

Hanlen: “It was not a nice place where he was, I can assure you of that. I would not have liked to be there myself.”

The discussion is now about what happens when priests and Brothers are convicted of child sex offences, jailed, and released from jail.

Doyle said he was aware of orders which took these men back in because they were released from jail with “nothing in their pocket except for what they got when they left the order”.

He was also aware of other orders where men returned from jail, were given credit cards and access to cars, and there was no supervision. They retained their titles and to the outside world appeared to remain priests or Brothers.

In 2001 the time limit for reporting abuse was extended to 10 years. In 2010 it was extended to 20 years. The royal commission has data showing the average time between child sexual abuse by a Catholic cleric occurring, and a person reporting, is 33 years.

The church institution in the Vatican with authority over these matters now has discretion to waive the time limitation periods.

9.30am: Good morning everyone. It’s Joanne McCarthy from the Herald on day four of the 50^th Royal Commission public hearing, and the final hearing into the Catholic Church.

Today we will see a panel discussing canon law, and whether the Catholic Church’s statements about its obligations to report cases of historic child sexual abuse to authorities, including police, are all that they seem to be.

The panel will include Kieran Tapsell, a former trainee Catholic priest, lawyer and author, who has spent a number of years investigating the interplay between canon law and civil law, and challenging the public perception, based on church statements and policy changes, that the church is doing all that it can to deal with its perpetrators and alleged perpetrators when allegations are raised.

This public hearing will consider the very limited nature of the church’s changes to reporting obligations over the past seven years, given that the changes only apply in countries and states where there are laws requiring people to report any serious crimes to police. As we will no doubt here, those kinds of laws don’t even exist across most of Australia.

Only NSW has had such a reporting obligation under law for nearly three decades, and Victoria since 2014. In all other Australian states and territories it is not a crime to fail to report allegations of serious crime – including serious allegations of historic child sexual abuse – to police.

Kieran Tapsell has provided a submission of more than 400 pages – see the link below – to the Royal Commission outlining his case why the Pope must change canon law to allow bishops to report historic child sexual abuse allegations to police.

Tapsell includes in his submission the Vatican’s responses to the United Nations Committee on the Rights of the Child, which in 2014 asked the Vatican why church policy did not provide that in “all cases these crimes should be reported”, and not just in places where there were civil reporting laws.

The church representative, former Vatican chief prosecutor Bishop Scicluna, answered that every local church had the duty to educate people about their rights and to “empower” them to report historic child sexual abuse allegations to authorities.

Another way of looking at that is that the Catholic Church left responsibility for reporting allegations with the alleged victims of those crimes.

In his submission Tapsell notes, “The Holy See’s response shows that despite all the assertions that everything has changed, the crux of the problem has not. The dispensation to allow limiting reporting to where the civil law requires it reveals where the Holy see’s true priorities lie: keeping bishops and priests out of jail, rather than the welfare of children.”

Also on the panel today are American Dominican priest Tom Doyle, who has been a strident critic of the church’s handling of child sexual abuse since the 1980s – and a strong advocate and supporter of abuse victims and survivors – and canon lawyers Dr Rodger Austin and Sister Moya Hanlen. 

Read Kieran Tapsell’s submission here.