Melbourne Law School - Theses

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Type: Masters Research thesis × Start date: 2000 × End date: 2009 × Author: Date, John E. ×

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    Implications of canon law for church organisations operating in Australia
    Date, John E. ( 2008)
    In addition to the civil laws which are relevant to the operation of Catholic schools and hospitals in Australia, the laws of the Church itself, known as canon law, must also be taken into account. Canon law is derived from a formal code promulgated in 1983, and from canonical jurisprudence which has evolved over many years. The thesis examines that part of the code which deals with the need to safeguard and protect Church property, sometimes referred to as ecclesiastical goods. Church property comprises such tangible assets as are owned by public juridic persons. 'Public juridic persons' are recognised canonical statutory bodies within the Church and they include all dioceses throughout the world, all parishes, all religious institutes and the administrative body of the Church itself, known as the Holy See. Book V of the code sets out several important requirements for the administration of Church property, one of which is that ownership of Church property should be 'protected by civilly valid methods'. This has been interpreted to mean that trading entities such as schools and hospitals should be incorporated as civil legal entities, separate from the canonical public juridic person that sponsored them. Incorporation also happens to be a useful corporate structure in the civil sense because it helps to protect the parent from liability for the torts and contractual obligations of the subsidiary. The code defers to civil law in most respects, but only to the extent that the civil laws are not contrary to canon law. It is in the area of the civil incorporation of a Catholic school or hospital that the two legal systems overlap. The canon lawyers believe that an incorporated subsidiary is still part of the totality of the public juridic person, and that consequently the assets of the subsidiary are owned in canon law as Church property, by the public juridic person. As a result, the canonists suggest that if a school or hospital does become separately incorporated, the parent should reserve sufficient powers to itself to be able to fulfil its canonical obligations to safeguard and protect such Church property as may be involved. The thesis points out that incorporation per se does not necessarily guarantee that the Church property is properly protected. In some circumstances a civil court may ignore the separate entity doctrine and pierce the corporate veil. Therefolre the corporate charter of the operating entity must be drafted in such a way as to afford the parent a sufficient degree of control to fulfil its canonical obligations, while at the same time endeavouring to ensure that there can be no interference from the civil courts.