It remains to be seen whether legislation to introduce same-sex marriage in Australia would have an adverse impact on religious freedom. This would depend on the plight of institutions or individuals who continued to teach that marriage is a union between a man and a woman, to the exclusion of all others, subsequent to any legislative change.

That’s a debate for the future. Right now the only threat to religious freedom in Australia turns on the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse concerning the sacra­ment of confession. This poten­tially affects Catholic, Anglican and some Orthodox religions.

On August 14, the royal commission released its 2040-page Criminal Justice Report, which contains 85 recommendations. No 35 calls for each state and territory government to introduce legislation criminalising failure to report child sex abuse.

This entails that the proposed legislation “should exclude any existing excuse, protection or privilege in relation to religious confessions to the extent necessary to achieve this objective”. In other words, the Catholic “seal” of confession — that a penitent can confess sin to a priest and receive absolution in total secrecy — would be removed by legislation.

Royal commission staff briefed some journalists on the contents of recommendation 35 prior to the report’s release. This soon became the media’s focus. For example, on August 15, ABC TV’s News Breakfast program interviewed, in quick succession, academics Judy Courtin and Scott Burchill. They agreed wholeheartedly with the royal commission on this issue. Soon after, Francis Sullivan of the Catholic Church’s Truth, Justice and Healing Council said he would accept the royal commission’s recommendation. This despite the fact Sullivan had put in a submission arguing the secrecy of the confessional should not be interfered with by government.

The royal commission’s focus on recommendation 35 reflects its apparent obsession with the Catholic Church. Certainly, there are an appalling number of historical instances of clerical child sexual abuse in the this church. These predominantly occurred between 1950 and 1989, peaking in the 1970s — about four decades ago.

However, it is not at all clear that there is a causal relationship between the sacrament of confession and the offending of some Catholic male clergy, primarily against boys. According to the royal commission’s own statistics, on a proportionate basis there was a higher level of pedophilia in the Uniting Church (including its predecessors) than in the Catholic Church between 1950 and 2015. Yet the Uniting Church has no sacrament of confession. Moreover, it has married clergy, female ministers and no compulsory celibacy.

The royal commission devoted 15 days to what was termed its “Catholic wrap”. This compares with just half a day for the Uniting Church. Judge Peter McClennan, chairman of the royal commission, ­interviewed notorious pedophile Gerald Ridsdale, who was a Catholic priest at the time of his offending, in Ararat prison. Subsequently, Ridsdale gave evidence to the commission via video link. He told McClellan that, when a priest, he never went to confession.

Denis Hart, the Catholic Archbishop of Melbourne, has said that in his half century as a priest no one has ever confessed to pedophilia at confession. Jesuit Frank Brennan has said the same about his 30 years as a priest. Both men support the retention of the secrecy of the confessional in the face of possible government intervention. Yet they are from different traditions within Catholicism. Hart is a conservative Catholic who opposes same-sex marriage. Brennan, a more liberal Catholic, supports same-sex marriage.

Yet both have promised to honour their vow to uphold the secrecy of the confessional if this practice is disallowed by government.

Writing in The Sun-Herald on August 27, sneering secularist Peter FitzSimons railed against “the sanctity of the confessional”. He asserted the royal commission had “just revealed” the Catholic Church “has presided over cases like the one in Rockhampton, where Father Michael McArdle was forgiven no fewer than 1500 times by 30 of his fellow priests for raping children in his care”.

In fact, the royal commission did not even consider the McArdle case. The royal commission’s decision in this instance suggests it does not regard McArdle as credible.

McArdle, whose offending covered the years 1965 to 1987, made his claim in an affidavit to the Queensland Court of Appeal in 2004 during an unsuccessful attempt to have his term of imprisonment reduced. There is no evidence McArdle confessed the sin of child sexual abuse when he offended three decades and more ago. What’s more, it’s highly improbable he would have received what he claimed was exactly the same penance — that is, “go home and pray” — from 30 priests over 20 years.

Sexual abuse by Catholic clerics virtually ceased about two decades ago. Even if the confessional were a factor in such crimes, the fact is few Catholics these days go to confession. Even so, the royal commission is setting up a scenario where the likes of Hart and Brennan could go to prison for proclaiming that they will act in accordance with their religious beliefs.