Who owns what in the Bunbury Diocese?

 Dear Parishioners

People have been asking me about possible implications for parishes and Catholic schools of legislation passed earlier this year related to payments to survivors of abuse.  I have tried to answer their questions in a Pastoral Letter entitled ‘Who Owns What in the Bunbury Diocese?

Works of the Catholic Church

We know that the Catholic Church, including this Diocese, comprises parishes and other communities of self-giving people, priests and religious brothers and sisters.  Collectively, they seek to serve the sick and poor; the disadvantaged and families in need; indigenous Australians; migrants and refugees; the elderly and the young; those preparing for marriage – and many others.

For these purposes, various Church bodies over time have bought or received donations of assets.  They include hospitals, schools, facilities for the aged, hospitality centres for mariners, refugee centres and parish buildings.

On the other hand …

The Royal Commission into Institutional Responses to Child Sex Abuse has uncovered profound evils committed by a small minority in the past history of the Church that most of us could not have imagined.  It revealed too failures by many Church leaders in the last century to protect the vulnerable by removing perpetrators from ministry.

A renewed apology

The Royal Commission reported that five priests in the Bunbury Diocese abused children between 1950 and 2010.

I once again repeat my apology as Bishop of Bunbury to all affected by the terrible crimes committed by priests both in this Diocese and beyond.  We can never apologise too often:

‘I apologise to victims of abuse in the past by priests and others in the Church anywhere in Australia.  I extend this apology too to the families of victims who always suffer with their abused love one.

 ‘I apologise to all feeling alienated by Church leaders in particular who, instead of loving victims of the different forms of abuse, failed knowingly in their responsibility to protect our young and vulnerable.  Who among us has not been dismayed, and even disillusioned, as we have learned of terrible examples of Church failings in this regard from the Royal Commission?’

I cannot emphasise too strongly my own commitment – and the commitment of the Diocese – to safeguarding the young and the vulnerable from any form of abuse.  I need to emphasise as strongly as I can too that this Diocese is fully committed to assisting survivors of abuse by priests who served in the Diocese in every way that it can.

Questions arising about compensation

State and Commonwealth Parliaments earlier this year legislated recommendations by the Royal Commission, some of which related to the compensation of survivors.  This has given rise to a range of questions from parishioners and Catholic school parents.

Answers to their question are not simple.  Hence, the purpose of this Pastoral Letter is educative.  For ease of explanation, therefore, it comprises three parts dealing with three questions:

• ‘What are the basic structures of the Catholic Church?’
• ‘What are the assets of the Bunbury Diocese?’
• ‘How do the new laws relate to these assets?’

PART ONE: WHAT ARE THE BASIC STRUCTURES OF THE CATHOLIC CHURCH?

In an age of multinational corporations, the structures of the Catholic Church are often misunderstood.  The Church certainly is NOT a multinational corporation.  To understand its structures, we need to recall a little history.

St Peter and the Apostles

When instituting the Church community, Jesus Christ, the Son of God, instituted two foundational offices.  The first was that of Peter; the second was that of the Apostles.

Jesus showed that the future role of Peter was actually an office by changing his name from Simon to Peter, following the culture of his time.  Peter would be ‘the rock upon which I will build my Church’[1].

The Apostles recognised too that Jesus had given them an office. [2]   This is why, for example, the Apostles discerned the need to call Matthias after Jesus’ Resurrection to replace Judas, who had betrayed Jesus. [3]

The successors to the offices of Peter and the Apostles today are the Pope and the Bishops.  The word ‘apostle’ is restricted to those who had actually seen and been called by Christ.

The spread of the Gospel: autonomous ‘churches’

Jesus commanded Peter and the Apostles to proclaim his Gospel ‘to all nations’.  They then travelled to different parts of the world to do so. They founded the earliest faith communities, referred to in the New Testament as ‘churches’. [4]

Each of these churches was autonomous from the others.  What bound them together was a common faith and a shared belief in the spiritual authority of the Office of Peter.  Different Apostles exercised spiritual leadership and jurisdiction over different churches, ensuring their faithfulness to this common faith.

As Bishops succeeded the Apostles, these communities or churches came to be called ‘dioceses’.  Today, there are more than 3000 dioceses across the world.    There are 28 geographical dioceses in Australia and 8 non-geographical dioceses.  Larger dioceses, usually in capital cities, are called archdioceses.

The autonomy of dioceses

Today, each diocesan community is served by a diocesan Bishop.  These communities are still bound together as ‘catholic’ by their shared faith and acceptance of the spiritual authority of the Pope as the Successor of Peter. Each diocese is autonomous from all the others, including the Diocese of Rome.

In Western Australia, for example, we have the dioceses of Broome, Geraldton, Perth and Bunbury.  Though the Archdiocese of Perth is the largest of these dioceses, each is independent of the others, just as Australian States are independent of each other.

At the Australian Catholic Bishops’ Conference, each diocesan Bishop’s vote is of equal value, be he a Cardinal, Archbishop or Bishop.  The Conference can do only what Bishops agree to.

The Conference is not a superior body to which individual Bishops are answerable. Local dioceses are not ‘branches’ of the Conference or archdioceses.  And so, the Bunbury Diocese, for example, is not a ‘branch’ of the Archdiocese of Perth or of the Vatican.

This autonomy includes each diocese being responsible for its own financial affairs.

Parish communities

Over the centuries, smaller faith communities came into being within dioceses.  These came to be called ‘parishes’.  Bishops appointed Priests to serve them.  In Australia today, there are more than 1400 parishes.

As is the case elsewhere, Parish communities in the Bunbury Diocese provide the life-blood of the charitable works within our Diocese.  These help people with a variety of needs at the local level across the southern portion of our State.  It is the thousands of parishioners across the southern regions who make a difference to the lives of many more.

 Religious Institutes

Over time too grew institutes or communities of religious priests, sisters and brothers.  Their aims relate to specific spiritual and pastoral ministries.

Unlike dioceses, Religious Institutes normally are spread across countries and are independent of Bishops in the exercise of their internal affairs. Religious institutes usually are structured under the authority of an overseas Superior General.

Not like a corporation

Organisations develop structures to help them achieve their aims.  From what has been explained, hopefully it is clear why those who think of the Catholic Church as some kind of multinational corporation are mistaken.

The structures of multinational organisations, from board level down, relate to the ultimate goal of maximising profits for shareholders.

Catholic Church structures, on the other hand, aim to facilitate at the local level the pastoral aims and good works of the Church, which flow from the mission, given it by Jesus.  This is the ultimate focus of the successors of Peter and the Apostles.

PART TWO: WHAT ARE THE ASSETS OF THE BUNBURY DIOCESE?

People who speak of the ‘wealth of the Church’ may not realise that they are speaking of properties owned by the hundreds of communities of people across Australia who make up parishes, dioceses, charitable bodies, religious institutions and other organisations within the Church.  These include buildings such as churches and hospitals; schools and migrant and refugee centres; facilities for the elderly and the homeless; refuges for victims of domestic violence and recreation centres for mariners; to offer but a few examples.

 Parish assets, including schools

In the case of Bunbury, most parishes existed before the Diocese.  Parish communities worked hard to pay for their properties, including parish churches, halls, schools and presbyteries.

People have given to their parishes and Catholic schools generously, as well as engaged in fund raising activities.  Many readers of this Letter will recall fund raising activities, ranging from cake stalls, to quiz nights and appeals.  Many will recall too parishioners and parents who volunteered skills and time, and even machinery, to help with constructing parish and school buildings and landscaping their surroundings.

Parish communities and Catholic schools continue today because parishioners and parents continue to provide for them financially, and make themselves available for busy bees and other projects.  Over many decades, parishes have established charitable works and contributed mightily to the life of the southern portion of our State.

The establishment of the Diocese

In 1954, the number of parish communities across the southern portion of Western Australia grew to the point that the need for a Diocese across the southern portion of Western Australia became apparent.  The first bishop, appointed by Pope Pius XII, was Bishop Lancelot Goody.

It was decided that the Bishop would be based in Bunbury, the largest parish in the area at that time.  His Bishop’s Chair (or Cathedra) would be placed in the Bunbury parish church, so that it became the Cathedral.

As has happened in other dioceses, circumstances we cannot foresee now could change so that a future Bishop may need to move his Cathedra to another parish church and this would become the Cathedral.  The present Cathedral would then revert back to being the Bunbury Parish Church.

Bunbury Diocese: a not-for-profit charity 

The Bunbury Diocese has always been one of the least resourced dioceses in Australia.  It has some basic assets for charitable and administrative purposes, and to provide for retired priests.

These have been purchased by the Diocese itself, often by temporarily going into deficit, or donated to it.  Never a ‘profit-making’ organisation, the Diocese qualifies as a charity under the Australian Charities and Not-for-Profit Commission.

Church law protects parish properties

The law of the Catholic Church is called ‘canon law’.  Its principal purpose is to spell out how the Ten Commandments of God and teachings of Christ relate to the conduct and administration of the Church.  Canon Law applies to dioceses and parishes, religious institutes and lay organisations.

The Seventh of these Commandments requires respect for what belongs to another.  It forbids theft, embezzlement and other violations of owners’ rights.

Where Church properties are concerned, the Seventh Commandment requires Bishops and others to respect what is owned by those who have paid for them, or have been given freely.  This applies to what is owned by parishes, charitable organisations, religious institutions and other organisations within the Church.

The Seventh Commandment also forbids anyone from cooperating with a third party who might seek to take what belongs to another.  Obeying the Seventh Commandment in this respect too is a matter of conscience.

The Ten Commandments are the law of God.  As such, they bind the conscience of every believer – and every parishioner, priest and bishop.  After we die, all of us will have to account for how well we lived according to God’s laws.

From a moral perspective, therefore, no Bishop of the Diocese of Bunbury can ever take over the ownership of any asset belonging to a parish.  Even without canon law, any attempt by a Bishop to do so would be a violation of both the Seventh Commandment and natural justice.

 

The Bishop as a ‘corporation sole’

To understand the meaning of this term, it is necessary to understand that, legally speaking, there are two parts to the ownership of property.  The first is legal ownership, and the second, beneficial ownership.  Usually, a person or community owns property in both senses.

In 1911, to accommodate the civil law relating to property whilst recognising the rights of different Church bodies under Canon Law, the Western Australian Parliament legislated the Office of Bishop of Perth as a ‘corporation sole’. This gave the Bishop legal, but not beneficial ownership of all Catholic Church assets. In a sense, this was a convenient instrument for the government to deal with the Church.

Lacking beneficial ownership, the Bishop could gain no financial or other benefit from the assets.  Nor could the Diocese.

The Bishop of Bunbury as a Corporation Sole

In 1955, the Western Australian Parliament established the Office of Bishop of Bunbury as a ‘corporation sole’ for the Church assets within the Diocese of Bunbury.  As with the Bishop of Perth, the Bishop of Bunbury was given legal but not beneficial ownership of any asset that the Diocese itself did not pay for.

In other words, the Bishop is the legal owner of every parish and most other Catholic property within the Diocese.  He cannot sell or take control of any parish or other property of which he is not also the beneficial owner.

Legal ownership of all properties owned by the Diocese and its parishes was given to the Bishop for practical legal and administrative purposes only.  Hence, the State could deal with the Bishop, and leave to him the task of dealing with the individual parishes.

This is why, for example, if a parish decides to buy or sell a property, the transfer documents under State law are signed by the Bishop.  However, neither the Bishop nor the Diocese gains any benefit from this.  Canon law requires only that the Bishop ensures that parish assets are administered properly, and that there is proper accountability.

As explained earlier, Church law, which recognises the parish’s right of ownership and the parish priest’s authority to administer the assets owned by the parish, forbids the Bishop from selling a parish asset against the parish’s wishes.  Nor can he direct a Parish Priest to do what might be in the interests of the Diocese, but not in the interests of the parish.

The assets held in the name of the ‘Bishop of Bunbury’ corporation sole today include parishes and schools, teacher housing funded by Commonwealth grants and facilities for the elderly.  It also includes Crown grants and Crown leases.

PART THREE: HOW DO THE NEW LAWS RELATE TO THESE ASSETS?

As mentioned previously, earlier this year, the Commonwealth and State parliaments passed laws to implement Royal Commission recommendations related to the compensation of survivors of institutional child sexual abuse.

On 1 July 2018, the Commonwealth National Redress Scheme for Institutional Child Sexual Abuse Act 2018 (National Redress Scheme) and the State Civil Liability Legislation Amendment (Child Sexual Abuse Actions) Act 2018 (Civil Liability Act) commenced operation.

These legislations aim to fulfil the rights of survivors of abuse to apologies and compensation. They give them the freedom to choose which path they prefer to follow. Compensation amounts are awarded by independent third parties.

The National Redress Scheme

The National Redress Scheme, a major recommendation of the Royal Commission, makes it possible for survivors of institutional child sexual abuse to receive financial compensation, counselling and an apology.  The aim is that this scheme will save survivors the trauma of having to go through a lengthy Court process to prove their entitlement to a monetary payment, as well as the cost of lawyers.

The National Redress Scheme is a voluntary scheme for institutions to join.  With the other Australian dioceses, the Bunbury Diocese has been pressing for this recommendation of the Royal Commission to be implemented by the Commonwealth Parliament.

The Bunbury Diocese, with other Catholic dioceses, is becoming part of the National

Redress Scheme once the Western Australian Parliament has passed legislation which makes this possible.  This was announced publicly by Archbishop Denis Hart, the former President of the Australian Catholic Bishops’ Conference, on 30^th May 2018.  The National Redress Scheme offers payments to victims of up to $150,000.

Civil Liability Act

This legislation radically changes the legal situation for institutions facing litigation for child sexual abuse.  This Act of the Western Australian Parliament

• removed the limitation period, which had prevented a person previously from suing an individual or organisation for damages more than six years after the crime of sexual abuse, or 24 years in the case of a child;
• makes it possible for a current office holder to be sued and held liable for proven negligence by his or her predecessors. And so I, as the current Bishop of Bunbury, can be sued for and held liable for proven historical negligence by a previous Bishop of Bunbury;
• permits, but does not force an office holder, such as a Bishop, to draw on assets held in trust, such as in a corporation sole, to pay damages awarded by a Court to a survivor of child sexual abuse. This means that an office holder can confiscate an asset – which others paid for –even though not the beneficial owner of the asset.  [5]

Why the Act is ‘permissory’

The power given me by this Act is ‘permissory’ or discretionary.  The State Attorney General, Mr John Quigley, explained the reason for this [6]

The assets of many churches and other religious organisations are held in trusts.  This is not in order to hide assets; it is to ensure that the assets are available for use by the parishioners and their families, and the people these institutions serve.

In small regional towns and elsewhere, these institutions are a very important part of the social infrastructure and a very important source of support for families in the community.

We did not want to open a pathway whereby a plaintiff could instruct a sheriff to auction off the local Catholic primary school and deny an educational facility to children who attend that school ….

The Attorney General’s words confirm that it is not the intention of the State Parliament to penalise those who are in need today for crimes committed, in most cases, before they were born.  School children, those helped by Church organisations, parishioners and priests of today are completely innocent of the abuse of children by priests in the past.  Their communities should not be punished for the crimes of others.

The Seventh Commandment and community assets

The Seventh Commandment forbids stealing property which belongs to another.  And, as pointed out earlier, Parishes, with their churches and schools, have been paid for and continue to be supported financially, as well as other ways, by local Catholic communities (as well as by many who are not Catholics in the cases of schools).

Morally speaking, even though he has legal ownership, no Bishop of Bunbury has been able to confiscate assets of which parish communities are the beneficial owners.  There are no circumstances in which it would be permissive morally for me to sell assets parish communities have paid for or been freely given.

As a Christian, this would be a matter of conscience.  We are all accountable to God ultimately for violations of God’s laws.  The Church has no power or authority superior to that of the Creator of us all.

As a human being, to confiscate what others own beneficially, and therefore morally, would be a violation of natural justice.  It would undermine the common good.

This situation is no different, morally speaking, than would be the case if Parliament were to legislate that I could confiscate property of which the reader is beneficial owner.

Assets of the Diocese

The situation is different where assets of the Bunbury Diocese itself are concerned.  These assets either were purchased by, or donated to, the Bishop of Bunbury over the years.

The Bishop, therefore, has both legal and beneficial, ownership of these assets.  It is these that will be used for the compensation of survivors of sexual abuse by priests who served in the Diocese in the past.

Where civil actions against the Office of the Bishop of Bunbury are concerned, Court awarded damages would be paid from diocesan assets.

A problem

The retrospective nature of the new law breaks new legal ground.  It creates a particular problem for not-for-profit organisations.

None of these organisations will have built up the assets needed to pay Court awarded compensation.  Nor, in the case of a diocese, which is autonomous, is there a higher body for it to call upon to help it do so.

Legal damages awarded against companies penalise shareholders, reducing their financial return.

Damages awarded against not-for-profit charities, such as the Bunbury Diocese, penalise those whose needs the charities assist, even though they too are innocent of the crimes of others.

Conclusion

The priority of the Church will always be helping abuse survivors to heal. Hence, our Towards Healing programme will remain.

However, I hope that this Pastoral Letter gives a sufficiently clear and full response to the questions I have been asked by parishioners, priests, and parents of students in our schools.  Though these questions justifiably are of great interest, let us never forget to affirm always the courage of the survivors of child sexual abuse and to do all that we can to help them towards healing.

 

God bless you all

 

Bishop Gerard Holohan

16 November 2018

[1] Matthew 16:18

[2] Matthew 18:18

[3] Acts 1:15-20

[4] Eg Acts 15:41; Romans 16:4, 16; 1 Corinthians 11:8, 28

[5] Hansard COUNCIL 27 May 2018 pp 1336-1338

[6] Hansard ASSEMBLEY 21 February 2018 p73