Australian Broadcasting Corporation - ABC [Sydney, Australia]
September 14, 2021
By Noel Debien
Has the Catholic church in Australia, at its most senior levels, learned anything from the Royal Commission into Institutional Responses to Child Sexual Abuse about good governance, transparency, and justice for those who are at the margins? The resignation of the Bishop of Broome, Christopher Saunders, has left a significant level of disturbance and dispute within the diocese. He is 71, and it is unusual that Pope Francis has accepted the resignation of a bishop under the standard retirement age of 75.
The matter has proven highly contentious. Sexual misconduct allegations have been aired, along with claims of significant managerial problems — all of which the bishop has strongly denied. So what can or should the church do while such serious allegations linger in minds of the public?
Unclear reasons for departure?
The news of Bishop Saunders’s resignation was recently announced in the Vatican’s daily bulletin, the Bollettino, but no reason was provided. Church Canon Law allows for a bishop to resign earlier than the usual retirement age of 75 if he is “less able to fulfill his office because of ill health or some other grave cause” (Canon 401 §2).
Bishop Saunders has written publicly, for the first time in two years, explaining that on the advice of medical experts he has concluded that he is “no longer able to adequately serve the needs of a vast and diverse diocese such as the Kimberley with all its inherent challenges”, and that his “decision to resign was made after a great deal of thought and prayer”. Rev. Paul Boyers, the former Apostolic Administrator of Broome, has written that he wishes “Bishop Saunders an enjoyable and fruitful retirement.”
But other matters that have been raised concerning the bishop. Allegations were first flagged and then investigated by WA Police in “Operation White Plane” in 2018. These involved alleged sexual misconduct with young Indigenous men. Bishop Saunders strongly denies these allegations. We do not know the details of the WA police investigation.
In May 2021, WA Police concluded they would not lay charges. ABC reporter Erin Parke wrote that it appeared the church “held off investigating the matter while the WA Police investigation was live.” Canon lawyer Dr Rodger Austin said on record that a recent “Apostolic Visitation” was focused on matters other than the sexual misconduct allegations, because church law prevents it from carrying out an investigation before any active police investigation had been completed. That police investigation is now finalised.
On the face of it, it would seem this is merely a case of early retirement. And there will be many people in the diocese of Broome who accept that version of events. Early retirement would imply that Bishop Saunders is a bishop in good standing. As a “retired” bishop, that would imply he may attend the Australian Catholic Bishops’ Conference with a consultative vote, and would be able to continue in pastoral ministry, provided he receives proper accreditation.
A remote, frontier diocese like Broome has its own particular demands, but there remains some disturbance among the people in that diocese, as Erin Parke’s reporting shows. It seems that necessary confidentiality in any investigation clashes with the public’s need to know. Without transparency, we cannot see if there is any basis for the bishop to be conclusively vindicated against his accusers. Without transparency, it is also difficult for the public to regain confidence in the local church administration, especially after the disturbing findings of the Royal Commission.
Other administrative matters in the Broome diocese were serious enough to warrant an Apostolic Visitation in 2020, an exceptional visit initiated by the Vatican, where an outside person is sent in to investigate a problematic local church situation. Bishop Peter Ingham, the retired Bishop of Wollongong, was commissioned by the Pope’s authority and asked to lead this inspection. The process by which Rome decided on an Apostolic Visitation remains unclear, but may have been triggered partially by reports in the Western Australian media. The public do not know the results of that investigation.
The diocese of Broome went through that internal church review early last year. Bishop Saunders stood aside voluntarily during this investigation. Bishop Ingham looked into the management of staff and finances within the diocese. As Erin Park reported, “the findings of that review … were submitted to the Holy See last year but not made public.”
What does church law say?
While the church acknowledges that civil law usually takes precedence, church law can also be applicable. In 2019, Pope Francis published a new set of international Catholic requirements for the investigation of sexual abuse allegations, entitled Vos Estis Lux Mundi (“You are the light of the world”). This document deals with offences against children and “vulnerable adults” specifically. Vos Estis now also makes sexual offences a crime in church law, and includes religious brothers and lay leaders, as well as clerics. Depending on the level of evidence available, a canonical investigation can commence after civil law processes are complete. That is because, further to local secular laws, canon law contains specific requirements that can merit church penalties.
For internal church investigations, a key issue is: who has the authority to investigate a bishop within his own diocese? That is because there is no ordinary independent mechanism in the worldwide Catholic Church for such an investigation. Vos Estis mandates that clerics and religious report serious allegations to the local ordinary — the local bishop. In Broome, that would have been Bishop Saunders. In the case of reporting a bishop, the report now must be made to the “metropolitan archbishop”, who leads a province of several dioceses. In Western Australia, the metropolitan is Archbishop Timothy Costelloe from Perth. But a metropolitan has quite limited powers of intervention.
When asked if the metropolitan had triggered the Broome Apostolic Visitation, a Perth Archdiocesan spokesman responded: “The authority to instigate and direct an Apostolic Visitation rests with the Holy See. Therefore, it would be inappropriate for the Archdiocese of Perth to either speculate or provide comment on the factors which the Holy See independently considers regarding its decision to instigate an Apostolic Visitations in any diocese.”
Belgian Canon Law expert Rik Torfs has explained an inherent hierarchical issue within the Catholic Church in detail — namely the “lack of separation of powers”. The church does not have the checks and balances of an independent judiciary. A bishop in his own diocese is at the top of the hierarchical food-chain, answerable directly to the Pope through the papal nuncio. Without extraordinary papal intervention, there is very limited internal church authority to investigate bishops. A bishop ordinarily retains authority over any investigation inside his own diocese. What we have recently seen in Broome is an extraordinary external intervention.
Within church circles (as in secular law) there are various levels of evidence and proof that can be considered before penalties or consequences might be imposed. Up to now, “moral certitude” is the traditional Catholic standard of proof when justifying penalties. This simply requires that the cleric in authority has personal moral certainty that an event happened. “Moral certitude” does not require “proof beyond all reasonable doubt”, but is certitude based on objective reasons regarding the reality of the facts. Penalties can be imposed either by way of a judicial process (a trial) or by an administrative process. A person has the right of appeal against a judgement, or recourse over penalties applied administratively.
For example, say a bishop was convinced one of his priests was conducting an affair and was breaching the rule of celibacy, or guilty of maladministration. Before acting, the bishop has not been canonically required to possess proof to the level “beyond all reasonable doubt”. The bishop could penalise or even dismiss the priest provided he has moral certainty an offence has taken place. If dismissed by means of an administrative process, “recourse” is possible. If dismissed after an ecclesiastical trial, then an “appeal” is possible — not unlike secular law.
Recent revisions to church law
Book VI of the International Code of Canon Law (dealing with “Sanctions in the Church”) has recently been revised. Three major reforms are of particular interest. First, a new Canon, 1321, formally asserts the “presumption of innocence”. That is a major step for the Code of Canon Law, which is not an adversarial system, in that it prioritises the truth of the matter before the court. Australian criminal law relies on what the evidence shows only.
Second, there are changes to church penal laws — how internal trials and punishments are to proceed. The new Canon 1395 §3 now specifically states that laicisation (or defrocking) is the penalty for sexual offences against minors and vulnerable adults.
Third, around Canon 1376 there are reforms to the penalties for financial maladministration — including deprivation from office. These international reforms come into effect from 8 December 2021.
All that being said, there is no church penalty to discuss in the case of Bishop Saunders. As he has written, he is retiring on medical advice. But the recent process in Broome brings to the fore some significant big-picture questions about how justice can be pursued and rendered — especially given the similarities and differences between church law and secular law.
Noel Debien is a religion specialist with the ABC.