Date of Award

2015

Degree Name

Doctor of Philosophy (College of Law)

Schools and Centres

Law

First Supervisor

Associate Professor Joan Squelch

Second Supervisor

Sr Elizabeth Delaney

Abstract

The future governance and ownership of congregational schools has become a compelling question for many congregations still seeking to determine the future of their schools and education ministry. Some congregations have already made the transition to new legal structures, some are in a transitional phase, and still others are yet to make decisions.

The purpose of this thesis is to determine suitable common law and canon law structures for the future governance and ownership of congregational schools when the congregations are no longer willing or able to continue in their current roles. The following aspects determine the focus of the thesis:

1. The suitability of current common law and canon law structures in Catholic school governance and ownership;

2. The availability of any alternative common law and canon law structures for future governance and ownership of congregational schools; and

3. The impact of canonical requirements on the choice of any new common law structures.

In addressing these aspects, consideration is given to the possibility of future governance and ownership of congregational schools as diocesan schools and in so doing examines the corporation sole, the unincorporated association and agency. It then considers the current common law structures of the Presentation Sisters in WA and Qld and of the Christian Brothers in Oceania. In doing so it examines the incorporated association, the company limited by guarantee and the statutory corporation. The relevant canon law relating to temporal goods and public juridical persons is examined and explained.

The thesis reaches several conclusions relevant to a congregation’s decision-making of future governance and ownership of its schools. Firstly, it identifies the deficiencies in the legal capacity of diocesan schools. Secondly, it identifies the incorporated association, company limited by guarantee and the statutory corporation as the most viable options for future governance and ownership. Lastly, the thesis identifies the canonical requirements and implications on the choice of any new common law structure and ascertains that canon law is not necessarily an impediment to adopting new common law structures.

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