AUSTRALIA
Canberra Times
January 12, 2013
Jack Waterford
Everyone has an opinion, it seems, on whether priests should be allowed to hide behind the seal of the confessional if anyone tells them about the sexual abuse of children. It’s an issue less likely to arise at the royal commission into institutional sexual abuse of children than some think. But here’s one that will – or should – will we let priests, or bishops, or principals, or for that matter, lawyers, hide behind the seal of legal professional privilege?
Suppose a school principal is informed of allegations that a teacher has sexually molested a pupil. She (the principal) wants to do the right thing, by everybody, perhaps particularly for the child. First, of course, the child must be protected from the risk of further harm, assuming, for the moment, the allegation could be true. That obligation, probably, stands before any other. But the principal has other obligations too.
She has an obligation to the teacher, the subject of the allegations, to do a proper investigation, or, at the least to see that a proper investigation occurs, probably by the police. There are questions about the school’s obligations to the alleged victim, and also to other victims. There will almost inevitably be questions about the school’s liability, given the propensity for lawyers to sue those of potential defendants with the deepest pockets. The principal consults a lawyer about the full range of her duties and obligations, whether by force of positive statute law (say, in relation to the mandatory notification of suspected child abuse), or in relation to its duty of care, or status as employer or perhaps occupier of land. The principal is frank with the solicitor, who, professionally, recommends that others higher and lower in the school system become involved in the decision making. Some of the advice – say about the duty to move to protect the alleged victim – is unequivocal. Other bits of the advice speak of choices, and the need to move so as to minimise the school’s liability at common law.
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