Roman Catholic Archdiocese of Adelaide Charitable Trust (Membership of Trust) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 4 June 2014.)

Mr TARZIA (Hartley) (12:09): I wish to inform this place that I am not the lead speaker on this bill.

An honourable member interjecting:

Mr TARZIA: No—fortunately. Although the Catholics on this side of the chamber do have to stick together, Deputy Speaker, I still will not be the lead speaker. I rise to support this bill. Firstly, in speaking to the bill, I acknowledge the hard work of the Catholic Archdiocese of Adelaide and all that they do. In fact, I had the pleasure at the weekend of listening to the His Grace, the Archbishop of Adelaide, Philip Wilson, at the Madonna Delle Grazie Di Panduri in Payneham, a feast just outside my electorate.

In the past, he has been ably supported by Father Philip Marshall, the Vicar-General. Father Marshall was actually parish priest of Hectorville in the electorate of Hartley for many years and also the parish administrator of Tranmere. I think it is fitting, in talking to this bill, to acknowledge and thank the archdiocese for the commendable work they do for the Catholic Church in Adelaide, as well as the priests, nuns, pastoral councils, volunteers and people who support the church.

The bill seeks to amend the Roman Catholic Archdiocese of Adelaide Charitable Trust Act 1981. Originally, it was obviously put in place to create a Roman Catholic Archdiocese of Adelaide Charitable Trust as a corporation to take over and, I suppose, administer certain existing trusts and charitable undertakings within the Roman Catholic Archdiocese of Adelaide, including the Catholic Church Endowment Society Inc., the Goodwood Orphanage, the Largs Bay Orphanage and the St John's boys home, as well as property that was held in some of these institutions.

The act, I will note for this place, provides for the certain appointment of trustees to administer the trust, those being, for example, the archbishop, a nominee of the archbishop, the provincial of the Sisters of Mercy Adelaide or her nominee, the provincial of the Sisters of St Joseph or her nominee, and the provincial of the Salesians of St John Bosco or his nominee. I am looking at section  4A of the bill. I note that one of the entities—the Sisters of Mercy Adelaide—has actually changed, restructured and merged into a new entity, that being the Sisters of Mercy of Australia & Papua New Guinea.

This bill has originated from a request of the archdiocese, and I think it is important to note that so that we amend it to accommodate any change or any future restructure of the trustee entities, subject to the archbishop certifying in writing that the restructured entity is the effective successor to the former entity, without the need for further amendments to the act. It is also important to note that this bill allows an element of flexibility, and it is important that future restructures of any of the trustee entities are allowed to be made without, I suppose, the need for future further amendments to the act. This would make sense for future efficiency and for the best use of time for this place especially. I commend the bill to the house, and once again acknowledge the great work that the Catholic archbishop and his archdiocese does in Adelaide.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (12:12): I rise to speak on the Roman Catholic Archdiocese of Adelaide Charitable Trust (Membership of Trust) Amendment Bill.

The DEPUTY SPEAKER: Are you the lead speaker?

Ms CHAPMAN: Yes.

Members interjecting:

Ms CHAPMAN: Let's make this clear, I think I am the lead speaker—

The DEPUTY SPEAKER: I have recognised you as such.

Ms CHAPMAN: —and I do not think that we are going to have a large contingent of speakers from this side of the house.

The DEPUTY SPEAKER: We just have to set the clock accordingly, that's all.

Ms CHAPMAN: Yes. You might be very surprised, Deputy Speaker, at how succinct I can be.

The DEPUTY SPEAKER: You have said that before—

Ms CHAPMAN: I have.

The DEPUTY SPEAKER: —and we have been here for days.

Ms CHAPMAN: I think my record is about four seconds, actually, when on one bill I said, 'I support the bill,' and sat down. Last time we debated a bill here, I heard the extraordinarily elegant contribution by the member for Morialta, who so persuaded me that it was an important bill to support—this is, of course, after having heard the minister's submission—that I took about a minute, so I am on a roll here.

The DEPUTY SPEAKER: It is actually two words longer than the shortest verse in the Bible though, isn't it—'I support the bill'?

Ms CHAPMAN: Yes. On this important bill, the amendments are to the Roman Catholic Archdiocese of Adelaide Charitable Trust Act 1981. I did have occasion to look at this act and, to be frank, I was a little surprised that we had not sorted out, in a more comprehensive way back in 1981, the resolution of this matter. Of course, it is not unusual in South Australia that we have a number of trusts that have been established by the parliament and, in fact, we have a number of institutions generally in South Australia that have their genesis and legal status by an act of parliament. From time to time the parliament is asked to amend provisions to contemporise but also to deal with some inefficiency that has been disclosed or impediment that has been identified. Sometimes they are quite minor and sometimes they have no direct impact on other parties.

We have a special procedure in the parliament when we are dealing with legislation that only affects a certain class of persons or indeed only an individual. We have a committee process where we convene with representatives from the other place to ensure that we are not making a law for the benefit of a person, individual or class that would offend what is the usual situation, and that is that when we make a law in this place and/or amend it, it is to have effect across the board. Unless there are specified exclusions in the provisions of that legislation it is to apply to all, and it works on the principle that no-one is above the law and that it should be equally applied.

Notwithstanding that situation (where it is unusual to deal with a certain group), when we have been asked to deal with the historical establishment of an institution under the parliament, we do so. May I say, though, that quite often we take the opportunity to tidy it up to ensure that no further redress is required from the parliament and that it is able to sit as an institution independent of the parliament and it is able to undertake any growth or variation under a different procedure.

The exception to that appears to be universities which we have, of course, established under state parliament. From time to time they come back to us for governance reform and the like and we duly consider that. I think it is fair to say that important institutions such as the universities in South Australia—the University of Adelaide, the University of South Australia (the former Institute of Technology) and Flinders University—are institutions that we take some pride in, obviously, as very significant state institutions and they continue to have parliamentary scrutiny when required. Indeed, they are identities that receive considerable financial support not just from the commonwealth parliament but also from state parliament and private investors. We keep a keen interest in their operations and they account to us with annual reports to the parliament.

I think the Roman Catholic Church is different, as it should be, to the extent that it is a church. It is a religious institution that obviously sits independently of the parliament. Its subsidiaries or operations, whether they be through a charitable trust or other operation in the areas of provision of services, other than directly through the church, I think deserve to be and ought to be independent of the parliament. The accident of history, to the extent of what was available for those setting up trusts some years ago, ought not continue to require the assistance of the parliament, in my personal view. However, the constitution of the trust which is currently enveloped within the 1981 legislation, which brought together, at that time, certain existing trusts and charitable undertakings under the administration of the trust and setting out the powers that were to be defined and the authorities, functions and duties of the trust, has been incorporated in the 1981 act.

It is my understanding that the genesis of the bill extends from a request by the church, in particular the archbishop, to provide an amendment. The Attorney-General tabled the bill in June and I expect, with the delay in the parliamentary sittings, that it has not reached much attention. As indicated by the member for Hartley, this is a bill that we will support. The provisions under the current act create the Roman Catholic Archdiocese of Adelaide Charitable Trust as a corporation to take over and administer certain existing trusts and charitable undertakings within the Roman Catholic Archdiocese of Adelaide, together with other powers and responsibilities. They include, in the specific area: the Catholic Church Endowment Society Incorporated, the Goodwood Orphanage, the Largs Bay orphanage and the St John's boys home, as well as all of the property held in trust for those institutions.

The act provides for the appointment of trustees to administer the trust; namely, the archbishop, a nominee of the archbishop, the provincial of the Sisters of Mercy Adelaide or her nominee, the provincial of the Sisters of St Joseph or her nominee, the provincial of the Salesians of St John Bosco or his nominee, and such other member or members as are co-opted by the trustees with the prior approval in writing of the archbishop.

As one expects, sometimes these entities become obsolete. One of these entities, the Sisters of Mercy Adelaide, still exists but has restructured and merged into a new entity; namely, the Institute of Sisters of Mercy of Australia and Papua New Guinea. The new institute, in its reconstituted form, and the archdiocese wants this new institute to continue to participate through its leader ex officio as trustee of the trust. There are, apparently, two other ministry entities which, through their provincials, are trustees of the trust. One of those entities has foreshadowed that it is also considering a similar restructure.

The archdiocese requested that the act be amended so as to accommodate any future restructures or any of the trustee entities subject to the archbishop certifying in writing that the restructured entity is the effective successor to the former entity without the need for further amendments to the act. To this extent, the bill helps to incorporate a provision to ensure that we are not called upon on a regular basis and will have the capacity to incorporate restructures without constant returns to the parliament.

The bill also amends the act to provide that the Roman Catholic Archdiocese of Adelaide Charitable Trust is to be administered by trustees who are the relevant heads of the ministry bodies that are designated ministries under the bill. 'Designated ministry' is defined in the bill to include the existing trustee ministries as well as any ministry that the archbishop determines to be the successor of an existing or future designated ministry in accordance with the principles of canon law.

The assurance has been given to us that all three ministries, provincials, have confirmed that they consent to this process and of course to the passage of the bill. The bill also provides that the archbishop must cause a declaration to be published on an archdiocese website and in a newspaper, so that it will be possible to determine who the trustees of the trust are at any relevant time.

The bill itself sets out that procedure, as I say, but the question, of course, is how that is to be effective and, I suppose, to some extent why it is necessary for us to go as far as the amendments here in the bill. I understand and accept, of course, that this is a hybrid bill, and as I indicated in the procedure before we have to cover circumstances where there is a restricted class of application that we have this process. I assume the minister will move that there be a select committee to accommodate the questions that we may have to ask in relation to how we best structure this.

The fundamental area of clarification I would seek—and it can be done during the course of a committee once established—is in light of the current circumstances of pending claims against, I will say, the church generally, arising out of unresolved allegations of child sexual abuse principally, but if I can just say some grievances that some people may have with the church. I only mention that one because the Roman Catholic Church is not alone in expressions of concern and allegations that have been raised by people who feel that they have been let down and neglected disgracefully in circumstances when they had been in the care of that institution. I do not want to single it out for that purpose.

My concern here is—and I would want some reassurance through the passage of this bill and it can be at the committee stage—that the process that we are going through here to make amendments, to make provision for future restructuring, but leaving this whole trust and the management of this trust in this parliament, raises the question of whether this course is being undertaken in any way to aid and abet the isolation of assets from potential claim. In short, that means, is what we are doing here today going to in any way further isolate from potential claim assets or property of the church in the form of this charitable trust that will leave us in a situation where we would be seen as a parliamentary endorsement of the hiding of assets?

I simply raise the concern, because it would seem to me, on the face of it, why would we be going through a process of perpetuating a trust under legislative supervision as we are rather than saying to the church, 'The old days have gone. You are a respected independent institution and you are entitled to your own status and we have significant laws now which can make provision for you to determine your own destiny and be protected through corporations law, trust laws and the like, much of which has been availed for other, both charitable and commercial, enterprises of the church.' They are able to establish these structures themselves and even be able to operate businesses under them, such as hospitals, housing, companies and the like. I cast no reflection on the church using its enterprises and resources to, obviously, accumulate its base and provide security for the continued education and services that they provide.

I certainly would be looking to have some answers as to why this is not being sent off within the envelope of all the legal protections that are available to people and institutions to protect assets themselves, or to restructure in a way where specific purpose of application of funds or assets is secure. They can do that and they do so in a number of other entities. The other thing, I suppose, separate from the isolation of assets, is that there is also this question of whether the canon law, which apparently will be applied towards the management of these trusts, is justiciable in some way in state courts.

These are the sorts of questions that I think as a parliament we need to have some understanding of. I am certainly not a scholar of canon law so I have absolutely no idea how this will apply but I want to be sure that the parliament is not, even inadvertently, participatory in legislation that would be of concern if we were aiding and abetting that situation. The Attorney may have some explanation. I am happy to go into committee today and have some clarification of these matters in committee or alternatively explore this further in a select committee. I do not want to repeat the process and there may be other members of the select committee who would have other questions that it seems to me would require some answers.

I also do not want to be asking questions such as, 'What are the assets of each of these entities that we are purporting to set the continued governance arrangements for?' and to be disclosing that in a public arena when this is a charitable trust. As I say, it is unusual that we are asked to manage the governance and otherwise of a trust such as this, especially in this day and age but, by the same token, I do not want to cause any embarrassment and to be asking questions about what assets each of these entities may have which are not in the public arena.

It may be that they have very little but it seems, given some limited knowledge of the history of these trusts, that there probably is some considerable asset sitting behind this. As I say, I do not want to cause any unnecessary embarrassment so I am more than happy for that information to be provided by the government but preferably also by representatives from the trust to a select committee. If we move to go down that line, I will not make any other contribution. Perhaps the Attorney could give some indication in his response, otherwise I will not be asking to go into committee.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations) (12:34): I thank those who have spoken on the bill. As has been said, this is something we are doing at the request of the church. It is not something that we are particularly agitating as a matter of particular interest to the government.

The member for Bragg raises a number of matters and given the fact, as I understand it, that we are obliged to go into committee in any event, it is probably not worth our while labouring here at the moment. I think I should move on to the next stage—whatever that is—given this is a slightly peculiar bill.

Bill read a second time.

The DEPUTY SPEAKER: This bill amends the act to provide that the Roman Catholic Archdiocese of Adelaide Charitable Trust (the trust) is to be administered by trustees who are relevant heads of the ministry bodies that are 'designated ministries' in the bill, as well as any ministry that the archbishop determines to be the success of an existing or future designated ministry.

The amendments to the act were requested by the archdiocese so as to accommodate any future restructure of any of the trustee entities. The original bill to constitute the trust was referred to a select committee pursuant to joint standing order No. 2. While the current bill by its nature is a private bill, it however has been introduced by the government and, therefore, the application of the joint standing orders, as they apply to private bills, is not relevant.

This leaves the provisions of the joint standing orders as they apply to hybrid bills. The joint standing orders provide for two forms of hybrid bills. The first is a bill introduced by the government whose object is to 'promote the interests of one or more municipal corporations or local bodies and not municipal corporations or local bodies generally'. The second is a bill introduced by the government 'authorising the granting of Crown or waste land to an individual person, a company, a corporation, or a local body'.

Clearly, the bill does not fit the second category and it only fits the first category if it can be argued that the Roman Catholic Archdiocese of Adelaide Charitable Trust is a 'local body'. Based on the precedents established by the house, the consistent application of the joint standing orders and the principles that guide the consideration of such bills, I rule the bill to be hybrid.

Referred to Select Committee

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations) (12:37): I move:

That this bill be referred to a select committee pursuant to joint standing order No. 2.

Motion carried.

The Hon. J.R. RAU: I move:

That a committee be appointed consisting of Mr Hughes, Dr McFetridge, Mr Picton, Ms Sanderson and the mover.

Motion carried.

The Hon. J.R. RAU: I move:

That the committee have power to send for persons, papers and records, to adjourn from place to place and to report on 11 November 2014.

Motion carried.

The Hon. J.R. RAU: I move:

That standing order 339 be and remain so far suspended as to enable the select committee to authorise the disclosure or publication as it sees fit of any evidence presented to the committee prior to such evidence being reported to the house.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (12:38): I wish to briefly speak on that motion. I think I can?

The DEPUTY SPEAKER: It does not say so here, but I do not dare argue.

Ms CHAPMAN: Given the matters I raised in my second reading contribution, can I indicate to those members who are foreshadowed to be on the hybrid select committee that the opposition is seeking to ensure that there be no doubt that the amendments we are making on this legislation will not affect any civil claim against the trust—whether that is made before or after the commencement of the act. For the purposes of receiving that assurance in the committee, we will leave it to the members of the committee to identify that. I just place on the record that that is what we are seeking clarification and assurance of in relation to that. I appreciate the Attorney cannot give that; it is really a matter for the group that is to be the beneficiary of this legislation.

The DEPUTY SPEAKER: As there is not an absolute majority of the whole number of members of the house present, ring the bells.

An absolute majority of the whole number of members being present:

Motion carried.