by Mr. Neil Cameron
1. The purpose of this paper, as stated in the heading, is to examine the opinion of the Appellate Tribunal on the 1996 references.
2. In this paper:
Anglican Church means the Anglican Church of Australia, that is, the voluntary and unincorporated association which came into existence when the 1961 Constitution took effect.
Appellate Tribunal and Tribunal mean the Appellate Tribunal of the Anglican Church.
BCP means the Book of Common Prayer.
Members' Questions are those listed in paragraph 5.
Primate's Questions are those listed in paragraph 4.
1902 Act means the Anglican Church of Australia Constitution Act 1902 of the State of NSW.
1902 Constitution means the schedule to the 1902 Act.
1917 Act means the Anglican Church of Australia Trust Property Act 1917 of the State of NSW.
1961 Act means the Anglican Church of Australia Constitution Act 1961 of the State of NSW.
1961 Constitution means the schedule to the 1961 Act and the equivalent schedules to similar Acts in force elsewhere in Australia.
1986 Opinion is the opinion of the Appellate Tribunal given in 1985 on the reference under section 31 of the 1961 Constitution on the Ordination of Women to the Office of Deacon Canon 1985.
1991 Opinion is the opinion of the Appellate Tribunal given in 1991 on 11 questions relating to the ordination of a woman to the priesthood.
1997 Opinion is the opinion of the Appellate Tribunal given in 1997 on the Members' Questions.
3. A lesson to be learnt from Scandrett v Dowlin (1) is that, in applying a statute, one must look to what it says and not to what the person concerned thinks it ought to say. In the 1986 Opinion(2) and in the 1991 Opinion(3), Handley J said as much. So too did Young J in the 1991 Opinion(4) . They quoted a remark by Sir Owen Dixon when sworn in as Chief Justice of the High Court of Australia in 1952 (5):
There is no other safe guide to judicial decisions in great conflicts than a strict and complete legalism
As will be seen, this lesson may yet to be learnt by the Appellate Tribunal.
4. On 7 March 1996, pursuant to section 63 of the 1961 Constitution, the Primate of the Anglican Church, of his own motion, referred the following questions (the Primate's Questions) to the Appellate Tribunal for its opinion.
- 1. Is it consistent with the Constitution of the Anglican Church of Australia to permit or authorise, or otherwise make provision for -
- deacons to preside at, administer or celebrate the Holy Communion; or
- lay persons to preside at, administer or celebrate the Holy Communion?
- 2. If the whole or any part of the answer to Question 1 is YES, is it consistent with the Constitution of the Anglican Church of Australia for a diocesan synod, otherwise than under and in accordance with a Canon of General Synod, to permit, authorise or make provision as mentioned in Question 1?
5. Also on 7 May 1996, the Primate referred the following questions (the Members' Questions) to the Appellate Tribunal for its opinion. The Members' Questions were submitted pursuant to a request by more than 23 members of the General Synod. In the event the Tribunal declined to give an opinion on the Members' Questions.
- In the opinion of the Appellate Tribunal is the practice of prayers for the dead at Divine Service consistent with the fundamental declarations and ruling principles of this Church?
- In the opinion of the Appellate Tribunal is the practice of reservation of the elements either as objects of devotion in the church or for the later use of worshippers not present at the time of consecration of the elements consistent with the fundamental declarations and ruling principles of this Church?
- In the opinion of the Appellate Tribunal are any manual acts in relation to the consecration of the elements at the Holy Communion, not specifically allowed for, in the Book of Common Prayer, consistent with the fundamental declarations and ruling principles of this Church?
- In the opinion of the Appellate Tribunal is it consistent with the fundamental declarations and ruling principles of this Church for -
- A lay person to read the lesson at Divine Service.
- A lay person to read prayers at Divine Service.
- A lay person to assist in the distribution of the elements at Holy Communion.
- A lay person to say the prayer of consecration of the elements at the Holy Communion.
- A lay person to preach a sermon at Divine Service.
- A lay person to pronounce the absolution at Divine Service.
6. The Primates Question sought to clarify the assumption that it is illegal for a deacon or a lay person to preside it, administer or celebrate the Holy Communion. The views of the members of the Appellate Tribunal on this issue varied. The position in England, at the time the colony of NSW was founded, was clear. Section XIV of the Act of Uniformity 1662 (6) provided (so far as it is relevant) that:
". . .no person . . . shall presume to consecrate and administer the holy sacrament of the Lord's supper, before such time as he shall be ordained priest according to the form and manner in the said book prescribed, unless he have formerly been made priest by episcopal ordination . . ."
The reference to the said book is to The Book of Common Prayer. In Attorney General v Wylde (7), the judges held that the Act of Uniformity was never in force in NSW, but was part of the consensual compact and a necessary part of the trusts on which property held for the use or benefit of the Church of England was held. The Act was repealed in England in 1974 but the repeal did not affect the position in NSW.
In answering the Primate's Questions, Tadgell J (9) said it was "moot" whether the Act was applicable to and in force in the Australian dioceses in 1962. He regarded the Preface to BCP and dictum of the Dean of the Arches in Bishop of St Albans v Fillingham as holding that it was inherent in the constitution of the Church of England in England that, in the present context, only those ordained can preside at the Lord's Supper.
Handley J (11) was of the opinion that the form of the Communion service and the ordinal in BCP embody a principle that only bishops and priests may preside at Holy Communion.
Young J repeated the view expressed in Liturgy, Order and the Law (12), namely, that it is illegal for a deacon or lay person to preside at the Holy Communion. This passage is based on 2 cases (13) which are based, in this respect, on section XIV of the Act of Uniformity.
Beeby J considered section XIV of the Act of Uniformity to be part of the law of the Anglican Church of Australia. The Archbishop of Adelaide seemed to agree with him. The Bishop of Armidale did not address the issue. The Bishop of Bathurst agreed with Young J.
7. The law applicable in the diocese of Sydney is to be found in 3 places:
- various statutes;
- ordinances made pursuant to those statutes; and
- the consensual compact.
The ordinances are silent - apart from section 7 of the Church Grounds and Buildings Ordinance 1990 which, in essence, requires episcopal licence. The Appellate Tribunal seems to regard the law to be either in the consensual compact or in the documents referred to in the 1961 Constitution and given force by the 1961 Constitution.
8. However, that is not the end of the matter - as is illustrated by the result in Scandrett v Dowling (14). The next question is - can the rule, whatever its source, be enforced or is it a rule binding only in foro conscientiae. As regards the 1961 Constitution, the majority in Scandrett's case said, of section 2 of the enabling Act (15):
"(the section) makes it as clear as words can make it that the binding legal effect of the Constitution is limited to purposes connected with or in any way relating to the property of the Church. Matters of faith and organisation not connected or related to Church property are not made any more binding at law than they were before the Act was passed."
Thus, as MacFarlane and fisher point out in Churches, Clergy and the Law (16), the majority in Scandrett's case, concluded that the consensual compact, into which the Constitution is characterised, is binding only in foro conscientiae except to the extent that it involves property. If the rule is simply a rule of the consensual compact, separate from the 1961 Constitution, the result would appear to be the same, that is, the rule is enforceable as regards the use of property.
9. Another point to note is that section XIV of the Act of Uniformity is not directed to priests or bishops. It is directed to persons who are not priests or bishops. It is directed to deacons and lay persons.
10. There may be an argument to the effect that section XIV of the Act of Uniformity applies only in relation to the service of the Lord's Supper in BCP and does not apply to any other service of the Lord's Supper. This argument was not canvassed in the opinion of the Appellate Tribunal. In view of the widespread understanding, in the Anglican documentation, of the existence of a restriction of general application, the argument is probably unsound.
11. The result of the foregoing, in my opinion, disregarding the argument raised in the previous paragraph, is that the rule, so far as it relates to deacons and lay persons using church trust property, is enforceable in that it may reasonably be expected that the courts will restrain the use of church trust property contrary to the rule. On the other hand, in my opinion, on the basis of the decided cases, it is difficult to see any court attempting to prevent a deacon or lay person presiding at a service of the Holy Communion which is not held on church trust property.
12. The proposition in the paragraph 11 may need to be qualified in one respect. If the prohibition in section XIV of the Act of Uniformity is a rule of ritual, ceremonial or discipline, a breach by a deacon may render the deacon liable to be charged before the Diocesan Tribunal. However, a charge will lie only if the deacon is licensed by the bishop of or resident in the diocese (see section 54(2) of the Schedule of the 1961 Constitution) and even this statement may be qualified by section 2 of the 1961 Act.
Reference to the bishops
13. Before giving its opinion on the Primate's Questions the Tribunal sought and obtained the opinions of the House of Bishops and the Board of Assessors. This was done pursuant to section 58 of the 1961 Constitution. Section 58 provides:
- Before determining any appeal or giving an opinion on any reference the Appellate Tribunal shall in any matter involving doctrine upon which the members are not unanimous upon the point of doctrine and may, if it thinks fit, in any other matter, obtain the opinion of the House of Bishops, and a board of assessors consisting of priests appointed by or under canon of General Synod.
- In any case where the House of Bishops is consulted under this section, the House of Bishops shall aid the tribunal with such information in writing as it thinks proper, provided that if all members of the House of Bishops do not concur each of the members at the time in Australia may aid the tribunal with such information in writing as he thinks proper.
For the purposes of this sub-section the House of Bishops shall not include the bishops who are members of the Appellate Tribunal.
Section 58(1) has 2 arms. The first is where the members of the Appellate Tribunal are determining an appeal or giving an opinion and the matter involves:
. . . doctrine upon which the members are not unanimous.
Here, the Tribunal must obtain the opinion of the House of Bishops and the Board of Assessors. The second is where, before determining an appeal or giving an opinion, the Tribunal thinks fit that an opinion should be obtained. The latter is discretionary.
14. It is not entirely clear what the Tribunal did. The President, in his report to the Primate, states simply that the Tribunal:
. . . sought and obtained the opinions of the House of Bishops and the Board of Assessors.
Young J (17) stated:
. . . s 58 requires the Tribunal to obtain the opinion of the bishops and the assessors in matters such as the present.
This implies that there was doctrine upon which the members of the Tribunal were not unanimous. Bleeby J (18) made a similar statement to that of the President but later talks of:
lack of uniformity in matters of doctrine
which suggests that the implication from the statement of Young J is correct. The Bishop of Bathurst (19) made the same statement as Young J albeit in slightly different terms. The other opinions give no indication as to which arm of section 58(1) applied. In view of the statements of Young J and of the Bishop of Bathurst, it is reasonable to conclude that there was a point of doctrine on which the Tribunal was not unanimous.
15. Although section 58 does not expressly state what the opinion is to relate to, it is clear from the context that the intention is that the opinion, where there is not unanimity amongst the members of the Tribunal, will relate to the point of doctrine on which there is not unanimity. The Tribunal, surprisingly, asserted that, as regards the Members' Questions:
no matter involving doctrine within the meaning of section 58(1) of the Constitution arises
This raises the question as to the meaning of the expressions matter involving doctrine or a point of doctrine for the purposes of section 58(1) of the 1961 Constitution. Both expressions are used in section 58(1). Section 58(1) operates only in relation to an appeal or opinion which involves doctrine. The appeal or opinion may relate to one issue; it may relate to a number of issues. Not all issues need be referred to the bishops and assessors; only the point of doctrine on which the members of the Appellate were not unanimous. The foregoing disregards the second arm of section 58 which permits the Tribunal to obtain an opinion on any other matter. Unfortunately the point of doctrine, on which there was not agreement between all members of the Appellate Tribunal, was not identified. Nor is the point identified in any of the opinions of the members of the Tribunal. The opinion of the bishops does not state precisely what was referred to them. The report of the assessors states clearly what the Tribunal referred to them. The reference comprised the Primate's Questions. It is reasonable to assume (and, for the purposes of this opinion, I assume) that the reference to the bishops was the same. If this is correct, then, with respect, the Tribunal acted contrary to section 58. Although it may be asserted that section 58 does not impose an obligation on the Tribunal to identify the point of doctrine on which the Tribunal is not unanimous, it is difficult to see how the bishops and assessors can act if the Tribunal does not.
16. This raises the question - what is doctrine for the purposes of section 58 of the 1961 Constitution? Section 74(1) of the 1961 Constitution provides:
In the constitution unless the context or subject matter otherwise provides - Doctrine means the teaching of this Church on any question of faith.
There is nothing in the context or subject matter of section 58 which indicates that doctrine, in that section, does not have the defined meaning. Thus, it is necessary, first, to identify the question of faith and then to identify the teaching of this Church on the particular question.
17. The 1961 Constitution has little to say about faith. In section 1, it is stated that the Anglican Church:
holds the Christian Faith as professed by the Church of Christ from primitive times and in particular as set forth in the creeds known as the Nicene Creed and the Apostles' Creed.
Section 2 states that the Anglican Church:
receives all the canonical scriptures of the Old and New Testaments as being the ultimate rule and standard of faith.
Section 4 states that the Anglican Church:
retains and approves the doctrine and principles ... embodied in ... the Articles of Religion sometimes called the Thirty-nine Articles.
and declares that:
the Thirty-nine Articles, (shall) be regarded as the authorised standard of doctrine in (the) Church.
and that no alteration may be made to the Articles which contravenes any principle of doctrine laid down in that standard.
Article VI states in its first sentence:
Holy Scripture containeth all things necessary to salvation: so that whatsoever is not read therein, nor may be proved thereby, is not to be required of any man, that it should be believed as an article of the Faith, or be thought requisite or necessary to salvation.
Section 72 permits reference being made to the history of the Church of England in England where a question arises as to the faith of the Anglican Church, at least to the extent allowed by that section. Section 73 permits a tribunal to take into consideration its previous decisions on any question of faith or any decision of any judicial authority in England on any such question. A minister may be charged under Chapter IX with a breach of faith.
18. Thus, the 1961 Constitution does not state the faith of the Church. Rather, a member of the Anglican Church is directed elsewhere - to the Old and New Testaments and to the Christian Faith as professed from primitive times and, in particular, as set forth in the Nicene and Apostles' Creeds. Article VI requires that the faith be consistent with scripture and be capable of being proved thereby. Beliefs which do not satisfy this test are not part of the faith.
19. The importance of the foregoing, as regards the 1961 Constitution, in part, lies in the legislative powers of the various synods. The plenary authority and powers to make canons, ordinances and rules exercisable by the several synods in accordance with the 1961 Constitution is subject to the Fundamental Declarations, that is, the 9 propositions in Chapter 1 (of which sections 1 and 2 referred to earlier are part) and to the limitation in Chapter II of which section 4 is part. The powers conferred on the General Synod by section 26 of the 1961 Constitution are:
Subject to the terms of this Constitution
The powers of diocesan synods affirmed by section 51 of the 1961 Constitution are also:
Subject to this Constitution
The Fundamental Declarations cannot be altered - section 66 of the 1961 Constitution.
It follows that it is not within the competence of any general or diocesan synod to legislate in a way that is contrary to the Fundamental Declarations. The Ruling Principles in Chapter II can be amended to a limited extent.
Opinion of the Bishops
20. The bishops were asked to express their opinion on a point of doctrine, that is, the teaching of the church on a question of faith, that is, the teaching of the Old and New Testaments, these being:
the ultimate rule and standard of faith,
and containing or providing the proof of all matters of faith. Instead, the bishops said (20):
It is our belief that an attempt to permit either deacons or lay persons to preside at, administer or celebrate the Holy Communion would be in breach of both the Fundamental Declarations and the ruling principles of our church. In support of this proposition, we appeal to the Book of Common Prayer, the witness of the Catholic Church from primitive times and to the widespread Anglican understanding of the ministry.
This may be a statement of what the bishops believe to be the law but it is not a statement of doctrine or faith. Examination of the detailed reasons given by the bishops confirms the point that the bishops failed to perform their Constitutional duty.
21. In the reasons given in support of the first of the 3 propositions stated by the bishops in support of their belief, there is no reference whatever to the Scriptures. There is no doubt that BCP provides that parts of the services must be recited by a person who is in priests' orders. It is equally clear that the Act of Uniformity of 1662 required that the Lord's Supper must be consecrated and administered by an ordained priest. However, as pointed out by members of the Appellate Tribunal, if BCP was empatic, why was any provision required in the Act of Uniformity (21)? Further, accepting these two limitations, the question then becomes a legal one - can any of the synods of the Anglican Church lift the limitations? It does not follow as the bishops assert, that, because there is a limitation, it cannot be lifted. More important, it does not follow that the limitations in BCP or in the Act of Uniformity constitute part of the faith of the Anglican Church.
22. In support of the second proposition, the bishops can identify no clear passage of scripture. They recognise (22) that that St Paul:
gives us a number of different lists of ministries in the church
but omit to acknowledge that, in doing so, St Paul says nothing on the subject under consideration. They accept that the New Testament evidence is unclear (23). 1 Peter 2:9 is dismissed as irrelevant and they appear to acknowledge, by endorsing an observation by Edward Schillebeeckx, that specialisation by individuals is merely an obvious development in any group formation (24).
23. The bishops beging their reasons in support of their second proposition by stating (25):
The Fundamental Declarations of the Australian Church follow Anglican practice in giving authority to the canonical scriptures and the faith and practice of the primative church.
This statement is simply wrong. The Fundamental Declarations say nothing whatever about the practice of the primative church. Further, Article VI could not state in clearer terms that the doctrine of the Anglican Church is to be found solely in the scriptures. To include the practice of the primative church (whatever that may have been) is to attempt to re-introduce that which the reformers expressly rejected. Further, in so far as the proposition is based on assertions as to early church practice, one must note that the early church practice is disputed by historians.
24. The bishops advance little in support of the third proposition - widespread Anglican understanding of ministry. There may well be such an understanding. It does not follow that the understanding is necessarily correct or cannot be charged.
25. The failure by the bishops to state the doctrine of the Anglican Church may lead to the conclusion that either there is no doctrine on the point or there is a doctrine but the bishops decided not to state it. It is not surprising that the opinion of the bishops was disregarded by the majority of the Appellate Tribunal! It does not follow that there is no impediment in the 1961 Constitution to deacons or lay persons presiding at the Lord's Supper.
Opinion of Assessors
26. The opinion of the Assessors is more extensive. Again, the Assessors fail to answer the question. Indeed in the 16 pages which contain the opinion, there is not a single reference to the Old or New Testaments! At no point do the Assessors address any question of "faith"!
Appellate Tribunal - Response to the Opinions
27. The response of the members of the Appellate Tribunal to the opinions that they received from the bishops and assessors was various.
28. The President quotes parts of the opinions without necessarily agreeing or disagreeing with what is said. Mr Justice Bleby, by way of contrast, asserted (26):
... in my opinion the Tribunal should be slow to depart from advice it receives from the House of Bishops and the Board of Assessors, particularly when that advice is unanimous or substantially so. It should only depart from that advice if it is plainly wrong or contains an obviously flawed process of reasoning.
By way of contrast, Mr Justice Young asserts (27) (correctly, I submit) that the Tribunal is free to inform itself and reach its own conclusions. The 1961 Constitution is silent as to what happens to an opinion on a question of faith when received by the Tribunal. The Bishop of Bathurst directs a significant part of his reasons to a fairly detailed analysis of the Bishops' Opinion (28).
29. No member of the Tribunal deals with the fundamental problem with the Bishops' Opinion and with the opinion of the Assessors, namely, that both fail to do what it is required to do by section 58 of the 1961 Constitution, that is, state the doctrine of the Anglican Church on the issue.
Appellate Tribunal - Preservation of Orders
30. The last of the 9 propositions which comprise the Fundamental Declarations, to be found in section 3 of the 1961 Constitution, is that -
This Church will ... preserve the three orders of bishops, priests and deacons in the sacred ministry.
What does it mean to preserve the orders? According to the President, in the 1985 Opinion, 4 members of the Tribunal (Archbishop Rayner, Bishop Holland, Young J and Tadgell J) (29) said -
For the orders to be preserved, it is necessary to preserve more than their names. Their essential functions and their relationships with one another also need to be preserved.
This passage was quoted with approval in the present reference by Tadgell J, Bleby J and Bishop Wilson. There can be no doubt that, to preserve the orders, one must do more than preserve their names but is it also necessary to preserve their essential functions or their relationship with one another? If so, what are the "essential functions"? And can the essential functions be conferred on someone who is not a bishop, priest or deacon and who can perform some or all of these functions either as a delegate or in his or her own right? Had the tribunal considered the Members' Questions, some of these issues would have been addressed. Unfortunately, the Tribunal did not. Instead, the opinions give no clear answers to any of these questions. The questions are important. Legislation contrary to the 9th proposition is void. The prohibition applies to the general synod, to the provincial synods and to the diocesan synods. Not surprisingly, different members of the Tribunal reached different conclusions.
31. The President began with a particular view of the 9th proposition (30):
The injunction imposed by section 3 of the Constitution to preserve the orders "in their essence, individually and inter se" ... cannot be obeyed if an essential power committed to one order is conferred on another. If that were to happen there would be preservation neither of the orders individually nor of their relationship inter se: there would be an elimination of an essential distinction of which section 3 requires preservation.
This led to the following (31):
Hence, those who would seek to justify the execution of the office of celebration of the Holy Communion by deacons contrary to any established scheme (if there be one) need to reckon with the enlargement of the office of deacon and the diminution of the office of priest.
The same, no doubt, would apply to lay celebration.
The next step, in the position of the President, was to adopt, without criticism, the position (32) that:
The Lord's Supper or Eucharist represents in symbol, word and action the whole story of the people of God from creation to eschaton ...
because only those ... ordained can represent the whole Church, the celebration of Holy Communion came very soon in the early Church to be reserved to the ordained priesthood.
The theologians (mainly Archbishops Wood and Habgood) relied on by the President are not evangelicals; indeed no evangelical theologian is referred to by the President. The fact that other reputable Anglican theologians do not agree with the persons relied on by the President should have suggested to the President that, at the least, it was unwise to rely on persons of one particular school. It was therefore inevitable that the President would conclude, as he did, that any legislation to authorise a deacon or a lay person to preside at, administer or celebrate the Holy Communion would be void as contrary to section 3.
32. Mr Justice Handley, on section 3, agreed generally with the opinions of Mr Justice Young and the Bishop of Bathurst. His conclusion was (34):
I see no reason to construe s.3 as denying to the Church the power, if it saw fit, to expand the role of the deacon as an assistant to the priest in charge of a parish, to enable the deacon to preside at communion, certainly in the absence of the priest, but even if the priest is present. It follows in my opinion that subject to compliance with Article 23, a lay person could also be given this function subject to such restrictions and regulations as the Church thought appropriate.
In brief, the thrust is towards the deacon assisting the priest; it is not to supplant the priest. The position of the lay person is not considered by Handley J at any length, but earlier he states that he did not see section 3 denying the function of presidency.
33. Mr Justice Young noted the different ideas of priesthood in the Anglican Church (which Tadgell J did not). He said (35):
I have read with interest the article "The Priest in Anglicanism" by Professor J Robert Wright referred to by the Archbishop of Adelaide. I have also listened intently to a debate in the Sydney Diocesan Synod in October, 1997 as to whether the term "priest" should continue to be used in the Diocese of Sydney. These two shares approached the matter in vastly different ways, yet those holding the various views of what is a priest in the Anglican Church still can worship together and the episcopally ordained ministers in charge of parishes in both camps are in priests orders.
Young J does not explore the problems which the diversity creates. The most he says, reverting to section 3(36), is:
Any modification of the existing procedure that General Synod may adopt in the future which removes the bishop and the priest from the primary role as president of the Eucharist may be questionable. A measure that recognised that primacy, but permitted delegation of certain eucharistic activities to lay people or deacons under the authority and aegis of the priest would be in a different category.
His Honour noted how functions of bishops, priests and deacons had changed over the centuries. He rejected the view that section 3 freezes the duties as they existed in the Church of England in Australia on 31 December 1961. On the other hand he reserved for the future the validity of legislation which may allow for the Holy Communion to be celebrated by deacons or laity.
34. Mr Justice Bleby considered that the opinion expressed by the bishops, namely, that permission to allow deacons or lay persons to consecrate the sacrament of the Lord's Supper, would be contrary to section 3, should be accepted by the Tribunal. He noted that (37):
one of the historic and core functions which the bishops and the assessors have identified is that of presiding at the Eucharist.
Since this is a "core" function, it cannot be delegated or conferred on others without breach of section 3.
35. The Archbishop of Adelaide also asserted that (38):
the central and symbolic role of president at the Eucharist could not . . . be delegated to a deacon or lay person.
Most of the Archbishop's opinion is devoted to a recitation of views on the nature, character, role and function of the priesthood. Again, it is beyond the scope of this opinion to comment on these views but, like those relied on by Tadgell J, they seem, prima facie, to be contrary to Article VI and, I am informed, are views by writers who are identified as in the catholic camp; the views of evangelical writers are not cited.
36. The Bishop of Armidale does not deal expressly with section 3 but, it is clear from his reasons he does not regard section 3 to be any impediment to the due authorisation of a deacon or lay person to administer the Lord's Supper.
37. The Bishop of Bathurst, dealt with section 3 at considerable length. He also declared his support for the view quoted in paragraph 30 but observed, correctly, I submit, that the view begs the question as to what are those essential functions and relationships (39). Like Young J, Bishop Wilson sees the issue in terms of delegation (40).
The priest presiding at the Holy Communion as celebrant represents the normal ordering of priest, deacon and people. Celebration by a deacon or lay person would, thus, be abnormal but permissible when the priest was not available. Given the nature of the Diaconate as an ordering of a specifically assisting ministry to the priesthood, a deacon would receive delegation before a suitable lay person. If there was no deacon, then the lay person who received the delegation would have to be the person who was the "natural" leader of the congregation/community in the priest's absence ...... The unavoidable absence of the priest would in my view constitute sufficient reason to delegate ......
It is not possible to summarise Bishop Wilson's argument without omitting many of the points made. The following must be regarded as doing less than justice to his position.
- The 3 orders have existed for centuries and the Anglican Reformers preserved their continuity.
- Over the centuries the functions allocated to each order have changed.
- The functions were not frozen in 1961 when the Constitution took effect.
- Arguments based on the Act of Uniformity are unsound and in any event, if it is a fundamental truth that only ordained priests and bishops can celebrate the Holy Communion, why has it seemed necessary to legislate against diaconal and lay celebration?
- There is a distinction between an office and function. A change in the function does not necessarily change the office.
- Allowing a function of an order to be delegated to persons who, hitherto, have not exercised the function does not change the office or the delegation.
38. In summary, a majority of the Tribunal found that the delegation of the function of presiding at the Lord's Supper is not contrary to section 3. The question put to them was not limited to delegation - it referred to permission to celebrate at large. Although the majority answered the first question in the affirmative, their answer needs to be qualified. A study of the reasons given makes it clear that anything beyond a delegation does not have the support of all of the majority.
Appellate Tribunal - Legislative Process
39. Having answered question 1 of the Primate's Questions in the affirmative, the majority had to deal with question 2. The minority said little on question 2. Tadgell J said no diocesan synod has power to change the present law. In doing so, he made no reference to any diocesan constitution but merely based his conclusion on the part of section 71(1) which limits the power to make an alteration in the ritual or ceremonial of this Church. Handley J also said no, based on:
- his views that the principle of priestly presidency is a ruling principle;
- section 71(2);
- section 71(1);
- the scope of the powers of the general synod under s.26 and diocesan synods under s.51.
No other member supported Handley J on (a) nor does Handley J provide any argument in support of this view. His conclusion in (d), he says, is based on the 1991 Opinion but, with respect, this does not seem to be the case. Young J also said no, relying on S.71(1) asserting that the issue is:
a prime example of ritual and ceremonial (41).
Bleby J also answered question 2 in the negative and said he agreed with Young J. The Archbishop of Adelaide answered the same way. The Bishop of Adelaide did not agree with any of his colleagues.
40. The last sentence of Section 71(1) of the 1961 Constitution provides:
Nothing in this Constitution shall authorise the synod of a diocese or of a province to make any alteration in the ritual or ceremonial of this Church except in conformity with an alteration made by General Synod.
41. The first problem with this part of s.71(1) lies in the meaning of the words "ceremonial" and "ritual". In relation to these words, s.74(1) of the 1961 Constitution provides:
In the constitution unless the context or subject matter otherwise indicates:
"Ceremonial" includes ceremonial according to the use of this Church, and also the obligation to abide by such use.
"Ritual" includes rites according to the use of this Church, and also the obligation to abide by such use.
There is nothing in the context or subject matter in s.71(1) to suggest that the defined meanings do not apply but this does not get one very far because, in fact, neither word is defined in an exhaustive way in section 74(1). To find the meanings of ceremonial and of ritual one needs to look elsewhere. In the New Shorter Oxford Dictionary, the following definitions appear:
1. An outward rite or observance; the performance of some solemn act according to a prescribed form.
3. An object or symbolic attribute of worship, state or pomp.
5. A prescribed order of performing religious or other devotional service.
1. A prescribed order of performing religious or other devotional service.
2. A ritual observance or act.
The Bishop of Armidale observed that the distinctions are not easy (which is clear) and opted for popular definitions, as follows (42):
ceremonial is "how we do it"
ritual is "what we do".
Although these definitions may be criticised, clearly they are close to the common meanings. They are also close to what has been held by the UK courts in relation to the Church of England in England. Thus, in Martin v Mackonochie(43), Sir Robert Phillmore said (44) that there is:
. . .a distinction between a rite and ceremony; the former consisting in services expressed in words; the latter in gestures or acts preceding, accompanying or following the utterance of these words.
It is interesting to note that the recent text Liturgy, Order and the Law written by Rupert D H Bursell QC, LLB, MA, D Phil, Chancellor of a number of English dioceses, contains a section devoted to ceremonies. Not one of the illustrations in the section relates to persons conducting a service; all relate to how we do it issues such as the use of lighted candles, the imposition of ashes on Ash Wednesday, ornaments, processions, incense, holy water, anointing with oil, bells, liturgical dance and mime.
Unfortunately no member of the Tribunal apart from the Bishop of Armidale volunteered a definition or said anything of the meaning, in the 1961 Constitution, of the word "ceremonial". It may be that the word, where used in the 1961 Constitution, has a very different meaning to that given to the word in common parlance or by the English courts. However, that is unlikely. It is respectfully suggested that, those members of the Tribunal who held that the clerical or non-clerical status of a person leading a service is a matter of ceremonial, were mistaken.
42. The second problem with section 71(1) of the 1961 Constitution is, simply, what does it do? Taken literally it does nothing other than state that the 1961 Constitution confers no power in the areas of ritual or ceremonial on a diocesan synod. But what if a diocesan synod has power to make rules as to ceremonial or ritual? Section 71(1) does nothing to affect those powers. The section does not add to those powers and it does not subtract from those powers; it merely states that the 1961 Constitution does not add to the powers.
43. Unfortunately, again, there is no analysis of section 71(1) in any of the opinions. Instead, there is a series of assertions for which no reasons are offered. This last observation does not apply to the Bishop of Armidale. The Bishop of Armidale concludes, having attempted to define what is meant in the 1961 Constitution by ceremonial, discipline and ritual, that:
- the authorisation of deacons or lay persons to preside at the Lord's Supper does not involve a change of either ceremonial or ritual; and
- the issue is one of discipline, which is within the power of diocesan synods (45).
The first proposition, notwithstanding the views of members of the Tribunal to the contrary, is clearly correct. An issue of ceremonial, as defined and in its normal meaning, does not go to who undertakes the ceremonial. Likewise, an issue of ritual, as so defined, does not bear on who undertakes the rite.
44. Lastly, it should be noted that no member of the Tribunal gave any consideration to the powers of diocesan synods. The powers of diocesan synods vary from province to province. The powers of the Victorian synods, for example, are narrow. The powers of the NSW synods are extensive. The position is further complicated by provisions such as section 5 of the 1961 Act. (This Act gives limited effect to the 1961 Constitution in New South Wales). Section 5 provides:
The Anglican Church of Australia Trust Property Act, 1917, as amended, shall continue to apply to all Church Trust Property within the meaning of the Act, and in the said Act all references to the Church of England shall include the Church of England in Australia.
Elsewhere (46), the 1961 Act expressly makes any provisions of the 1902 Act which are inconsistent with the 1961 Act and the 1961 Constitution inoperative. However there is no equivalent provision in relation to the 1917 Act. Thus each diocesan synod in New South Wales, retains all the powers that it has by the 1917 Act. These include powers as to the use of property.
Power of NSW Synods
45. The foregoing leads to the question as to the ambit of the powers of diocesan synods in NSW. That question can be answered only by an analysis of the 1961 Act, the 1902 Act, the 1917 Act, the 1961 Constitution and the 1902 Constitution. A starting point is section 5 of the 1961 Constitution. It states:
this Church has plenary authority and power to make canons, ordinances and rules for the order and good government of the Church
and that such authority and power may be exercised:
by the several synods and tribunals in accordance with the provisions of this Constitution
The qualifications on the powers of synods and tribunals are such that, quite apart from the opening words of section 5, one may ask if the statement in section 5 is correct. This aside, it must be noted that the plenary authority and power is not limited to the General Synod.
46. Section 26 of the 1961 Constitution confers powers on the General Synod. The section may be paraphrased as follows:
Subject to the terms of this Constitution (the General Synod) may:
- make canons rules and resolutions relating to the order and good government of (the Anglican Church of Australia) including canons in respect of ritual, ceremonial and discipline; and
- make statements as to the faith of (the Anglican Church of Australia); and
- declare its view on any matter affecting (the Anglican Church of Australia) or affecting spiritual, moral or social welfare; and
- may take such steps as may be necessary or expedient in furtherance of union with other Christian communions.
The whole of the foregoing is subject to the terms of this Constitution and the terms of the Constitution obviously include chapters I (fundamental declarations) and II (ruling principles) of the 1961 Constitution.
47. Section 51 of the 1961 Constitution makes reference to the diocesan synods. The section provides:
Subject to this Constitution a diocesan synod may make ordinances for the order and good government of (the Anglican Church of Australia) within the diocese, in accordance with the powers in that behalf conferred upon it by the constitution of such diocese.
On one view, section 51 does no more than affirm whatever powers a diocesan synod may have, that is to say, it neither adds to nor subtracts from the powers enjoyed from time to time by each diocesan synod. An alternate view is that the first part of the section confers upon every diocesan synod power to make ordinances for the order and good government of the Church within the diocese. Under this view, the last part of the section, namely:
in accordance with the powers in that behalf conferred upon it by the constitution of the diocese
is to be read as a reference to the procedures required in the local constitution. This alternate view was held to be wrong by the Appellate Tribunal (in a unanimous opinion) given in 1990 on the Ordination of Women to the Office of Priest Act 1988 of the synod of the diocese of Melbourne, which opinion must be regarded as correct.
48. However, section 51 of the 1961 Constitution does impose limitations on powers of the diocesan synods. In the first place, the power is:
Subject to this Constitution
Again, this will include chapters I and II. In addition, section 4 of the 1961 Act expressly provides that any provision of the 1902 Act which is inconsistent with the provisions of the 1961 Act or to the schedule and shall, to the extent of the inconsistency, be inoperative.
49. A further limitation was asserted in the 1991 Opinion, namely, the limitation arising from the words:
within the diocese
Three of the four judicial members of the Tribunal (Handley, Tadgell and Young JJ) held that these words mean that a diocesan synod cannot legislate with the effect outside the diocese; it can legislate only with effect within the diocese. The fourth judicial member (Cox J) and Archbishop Rayner held otherwise. The other 2 members (Archbishop Robinson and Bishop Holland) did not consider the point. Nevertheless, the prudent course, at this stage, is to assume that the view of the 3 judicial members is correct.
50. Earlier reference was made to the last sentence of section 7(1) of the 1961 Constitution. This sentence provides:
Nothing in this Constitution shall authorise the synod of a diocese or of a province to made any alternation in the ritual or ceremonial of this Church except in conformity with an alternation made by General Synod.
The opening words of the sentence make it clear that the powers of a diocesan synod may have to make an alteration in the ritual or ceremonial of the Church are not supplemented by anything in the 1961 Act. At the time the 1961 Act took effect the synods of the dioceses in NSW had no such powers - except to make alterations previously made in England - but that was not necessarily the case elsewhere. If the General Synod makes an alteration in ritual or ceremonial (as it may under section 26 of the 1961 Constitution), it is open to a diocesan synod to adopt that alteration, in which case the diocesan synod is acting in accordance with the exception at the end of the sentence. The sentence may have been included to negate any inference that, with the 1961 Act taking effect and the nexus with the Church of England in England thereby coming to an end (see 53 below), a diocesan synod could act beyond the powers in its constitution. In the 1991 Opinion,Cox J expressed the view (47) that the sentence:
can only be interpreted as a prohibition of any diocesan ordinance purporting to make any such unauthorised alteration
With respect, this view cannot be correct. It would be correct if the sentence began:
The synod of a diocese or of a province may not make any alteration in the ritual or ceremonial of this church except . . .
But, the sentence does not say this. Even allowing for the inconsistent and vague language in parts of the 1961 Constitution, the sentence is clear - the 1961 Constitution adds nothing, as regards ritual and ceremonial, to the powers of a provincial or diocesan synod and confers no additional powers on such a synod to make laws dealing with ritual or ceremonial.
51. Then there is s.71(2) of the 1961 Constitution. This section provides:
The law of the Church of England including the law relating to faith ritual ceremonial or discipline applicable to and in force in the several dioceses of (the Anglican Church of Australia) (when the 1961 constitution took effect) shall apply to and be in force in such dioceses of this Church unless and until the same be varied or dealt with in accordance with this Constitution.
The 1961 Act does not deal merely with the General Synod, but also with provincial synods and diocesan synods. Where a diocesan synod makes an ordinance for the order and good government of the Church within the diocese in accordance with the powers conferred on it by the constitution of the diocese and does so in a manner which is not inconsistent with the 1961 Constitution, it is acting in accordance with s. 51 of the 1961 Constitution. Section 71(2) may have been included to counter the arguments advanced by the Bishops of a diocese of Newcastle and Bathurst in Attorney General v Wylde (48) that the bishop of a diocese has a Jus Liturgicum, that is, an inherent authority to prescribe liturgical forms and ceremonial. Under the section, no diocesan bishop but only the General Synod, a provincial synod and a diocesan synod (subject to the 1961 Act) may make rules concerning faith ritual ceremonial and discipline and, in the case of provincial and diocesan synods, subject to the powers conferred by their respective constitutions. Section 71(2) has not been regarded by any diocesan synod as preventing it from enacting laws as to discipline.
52. Section 3 of the 1902 Constitution provided (49), as regards the synod of each diocese in New South Wales, so far as is relevant:
The Synod of each Diocese may make ordinances upon and in respect of all matters and things concerning the order and good government of the Anglican Church of Australia and the regulation of its affairs within the Diocese.....
This power is limited by further material in the section and by subsequent sections. The ambit of section 3 was considered by Jacobs J, then by the Supreme Court of NSW, in Baker v Gough (50). His Honour was concerned with the relationship between sections 3 and 21 but his decision is not limited to those sections. He said (51):
I think that the 21st Constitution must be read in conjunction with the 3rd Constitution and that the latter must be regarded as limited in its wide language by the particular provisions of the succeeding Constitutions and by the injunction contained thereon....... It seems to me that each of the Constitutions contains in one way or another a limit on the general language of the 3rd Constitution. They either express with greater particularity something which may be included in the 3rd Constitution, so that the source of power in that particular must be looked for in the particular Constitution, or they express an injunction or embargo limiting the generality of the language in the 3rd Constitution.
The word "Section" has been used in this paper rather than the word "Constitution" used by Jacobs J. Section 21 now appears as section 3(4) but has not been changed. The importance of the foregoing is that it is not to the point to say that the repeal of a subsequent section has no effect on section 3 because section 3 remains unchanged. A subsequent provision may limit section 3. If the subsequent provision is repealed, the limitation is deleted.
53. Apart from the limitations in the 1902 Constitution, an important limitation that existed until the 1961 Act took effect arose from the nexus between the Church of England in Australia and the Church of England in England. The nexus or limitation has been variously stated. For example:
. . . the members of the Church of England in Australia and Tasmania . . . must in public worship conform to the Book of Common Prayer, to the same extent as members of the Church of England in England must conform.
. . . we think that under the present constitution of the various dioceses in Australia and Tasmania, it is not competent for any diocese, unless authorised to do so by further legislation of the State in which it is situate, to adapt any Canon, Ordinance, or Determination, the effect of which would be to deprive them (the members of the Church of England) of that right . . .
The foregoing comes from the part of the Nexus Opinion obtained in 1911 in England. In the part of the Nexus Opinion obtained in Australia, it is said:
If any Synod relying on its present powers of legislation purported to pass canons, ordinances or determinations altering or contravening the ecclesiastical law of the Church of England, such canons, ordinances, etc would at the present time be ultra vires and illegal, inasmuch as the ambit of the legislative power of all synods at the present time is confined so that they cannot alter or contravene that law . . .
This last extract may be a reference to clause 24 of the schedule of the 1902 Act. In Bishop of Natal v Gladstone (52), the Privy Council said (53):
If certain persons constitute themselves a voluntary association in any colony as members of the Church of England, then as I apprehend, they are strictly brethren and members of that Church, though severed by a great distance from their native country and their parent church. They are bound by the same doctrines, the same rules, ordinances and discipline.
The limitation was very real prior to 1962, although, as Cox J points out in the 1991 Opinion, the discipline was changed both by local parliamentary enactment and local diocesan legislation from the middle of the last century onwards. Until 1920, there was a real desire to preserve the nexus. Breach of the nexus might result in loss of the use of church property. However, whatever the exact nature of the limitation, it came to an end when the 1961 Act took effect and the nexus was severed. Since 1962, the limitation has not applied.
54. Another limitation of importance was in the section 24 of the 1902 Constitution. That section provided:
No rule, ordinance or determination of any Diocesan or Provincial Synod shall make any alteration in the article, liturgy, or formularies of the Church, except in conformity with an alteration which may be made therein by any competent authority of the Church of England in England.
The meaning of this clause is obscure. In the Red book Case, Roper C. J. Thought (54):
The real importance of Article 24, however, appears to me to be that the framers of the constitution were anxious to and did ensure that the articles, liturgy and formularies of the Church in New South Wales should remain identical with the articles, liturgy and formularies of the Church in England as they existed when the original Act (30 Vic.) was passed except that alterations might be effected to conform with lawful alterations effected in England.
The importance of section 24 is that it was widely regarded as reinforcing the nexus and rendering void any change in the articles of religion, the liturgy or the "formularies" not in effect in England. Section 24 was repealed in 1976.
55. The result was that the two significant limitations on the powers conferred by section 3 of the 1902 Constitution on diocesan synods in New South Wales were repealed, leaving diocesan synods with power to make:
ordinances upon and in respect of all matters and things concerning the order and good government of the Anglican Church of Australia and the regulation of its affairs within the Diocese
limited only by the provisions of the 1961 Act, the 1961 Constitution and the other provisions of the 1902 Constitution. It may be noted that this power is identical, at its core, to the power conferred by section 26 of the 1961 Constitution on the general synod.
Of the meaning of order and good government, Cox J said (55) in the 1991 Opinion:
I shall say more later about a power to pass ordinance for the "order and good government" of a diocese. It is sufficient now to say that that expression is conventional. Whether a particular ordinance is, in fact, conducive to the order and good government of the diocese is a matter solely for the judgement of the synod that passed it. Cf. The Queen v. Foster; Ex p. Eastern and Australian Steamship Co. Ltd (1959) 103 CLR 256, at 306-8; Union Steamship Co. of Australia Pty Ltd v. King (1988) 166 CLR 1, at 9-14. Even so, the words "order and good government" in this context are not altogether meaningless. They convey the idea that a diocese may not make an ordinance on a subject that does not concern it. There must be a territorial connection between the ordinance and the affairs, the "order and good government", of the diocese.
In the same opinion Cox J described the terms of section 3 as "very wide".
56. This leaves the issue as to whether the powers of the General Synod and of the diocesan synods are exclusive (in some way) or concurrent. In the 1991 Opinion, Cox J said (56):
The result, in my view, is that there is a broad overlap in the legislative powers of General Synod and the diocesan synods. Certain subjects will be exclusive to one synod or the other, from the very nature of the respective bodies - General Synod could hardly make the standing orders of a diocesan synod, or a diocesan synod legislate to define the office of Primate or the national Church's relations with other religious bodies - but most subjects will be concurrent to both. In the event of a conflict, the General Synod law will prevail (s.30), but that is unlikely to be of great moment in practice . . . . .
I cannot read s.26, with its reference to specific legislative subjects, as conferring expressly and exclusive law-making power on the General Synod. So interpreted, it would leave very little to the dioceses, and if there is one thing that the history and internal evidence of this Constitution make very clear it is the intention, one might say the determination, to preserve substantially the independence and powers of the dioceses. Section 26 simply repeats with respect to General Synod the operative words of the legislative grant made with respect to both General Synod and diocesan synods in s.5. The argument that General Synod has power to make laws "in respect of ritual, ceremonial and discipline" because those words are to be found in s.26, and that the dioceses lack such power because the same words do not appear in s.5 and s.51, is untenable. The necessary implication of s.26 is that power to make such laws was already included in the preceding words "order and good government" - the traditional language of plenary grant that is used with respect to all synods in s.5 and to diocesan synods in s.51.
Also in the 1991 Opinion, Tadgell J (with whom Handley J agreed) said (57):
It has been suggested that s.71(2) of the Constitution, when considered together with the last sentence of s.71(1), recognises by implication that a diocese may make laws with respect to ritual, ceremonial and discipline. I agree that this is so. There can be no doubt that a diocesan synod has plenary power to make legislation with respect to matters of discipline so far as its constitution allows, but so much follows from s.51, the diocesan constitution being continued by force of s.47, subject to the national Constitution, until duly altered.
57. The fact that concurrent powers exist is of no moment. If the General Synod and a diocesan synod in NSW both enact a law dealing with the same topic, such topic being a matter of ritual ceremonial or discipline, the General Synod canon has no effect in the diocese unless and until the synod of the diocese adopts the canon by ordinance. However, if the synod of the diocese adopts the General Synod canon, the canon applies and the diocesan ordinance, to the extent that it is inconsistent with the General Synod canon, ceases to have any effect. The foregoing follows from s. 30 of the 1961 Constitution.
58. The foregoing discussion has concentrated on the issues of ritual ceremonial and discipline. There is also another issue - the use of church trust property. If the rule in section XIV of the Act of Uniformity is part of the consensual compact and applies to the use of church trust property or is part of the trusts on which church trust property is held, the powers in the 1917 Act can be used. Section 24 of the 1917 Act empowers the synod of a diocese, by ordinance, to provide and to vary any provision made for (amongst other things) the use of such property. Section 32 of the 1917 Act empowers the synod of a diocese, in appropriate circumstances, to vary trusts on which church trust property is held. As indicated previously, whereas the 1902 Act and the 1902 Constitution are to be read subject to the 1961 Act and the 1961 Constitution, there is no such provision as regards the 1917 Act.
59. A majority of the Appellate Tribunal is clearly of the view that it is possible for legislation to authorise the delegation of the presiding function to deacons and to lay persons without any breach of Chapter I of the 1961 Constitution. Two members of that majority go further than this. The other three members dissent. Any legislation that goes beyond delegation is likely to be the subject of a further reference and, if all members of the Tribunal held to their present positions, is likely to be held to be contrary to the last proposition in Chapter I.
60. The Tribunal failed to address, in any adequate way, the powers of diocesan synods. The exception was the Bishop of Armidale. It is submitted that, in the case of the synods of the dioceses in N.S.W., the powers conferred by the 1902 Act and the 1902 Constitution and the 1917 Act are sufficient provided, of course, the legislation is not contrary to the Fundamental Declarations and Ruling Principles in the 1961 Constitution.
N M Cameron
(1) (1992) 27 NSWLR 483.
(2) at page 114.
(3) at pages 4 and 5.
(4) at page 3.
(5) (1985) 85 CLR xiv.
(6) The Appellate Tribunal in the Opinion refers to section 10. Section 10 (or X) provides for penalties for failure to subscribe to the declaration in section 9.
(7) (1949) CLR 224.
(8) Latham CJ at p.262, Rich J at p.276 Dixon J at p.296 and Williams J at p.303.
(9) at page 7.
(10)  p.163.
(11) at page 21.
(12) Liturgy, Order and Law, written by Rupert D.H. Bursell QC, LLB, MA, D Phil, published by Clarendon Press Oxford 1996.
(13) Escott v Martin (1842) 4 Moo. PC 104 at p.128; Cope v Barber (1872) LR 7 CP 393. In Escott's case it was asserted that the rite is "void" - whatever that may mean in the present context - if administered by a layman.
(14) (1992) 27 NSWLR 483.
(15) at pages 512 and 513.
(16) published by the Federation Press 1996 at page 74.
(17) at page 28.
(18) at page 36.
(19) at page 79.
(20) at page 1. One bishop vigorously dissented from the reasons given by the others but, nevertheless, agreed with the following proposition.
(21) Becby J poses the question at page 45; the Bishop of Bathurst also at pages 82 and 83.
(22) at page 2.
(23) at page 3.
(24) at page 3.
(25) at page 2.
(26) at page 36.
(27) at page 28.
(28) pages 79 and following.
(29) at page 3.
(30) at page 7.
(31) at page 10.
(32) stated at page 12. The passage quoted is part of the opinion of the Board of Assessors.
(33) stated at page 12. The passage quoted is taken from a sermon of Archbishop Woods.
(34) at page 22.
(35) at page 27.
(36) at page 28.
(37) at page 41.
(38) at page 53.
(39) at page 78.
(40) at pages 88 and 89.
(41) at page 71.
(42) (1868) LR 2 A & E 116.
(43) at page 135-136.
(44) at page 30.
(45) This view is supported by Cox J in the 1991 Opinion at page 20.
(46) Section 4 of the 1961 Act.
(47) at page 30.
(48) (1948) 78 CLR 224.
(49) The 1902 Constitution has been amended. The equivalent to section 3 is now section 2 which provides:
The Synod of each Diocese may make ordinances upon and in respect of all matters and things concerning the order and good government of the Anglican Church of Australia and the regulation of its affairs within the Diocese, subject only to the Anglican Church of Australia Constitution Act 1961 and any other Act in force in this State.
The change does not involve any change of substance relevant in the present context.
(50)  NSW R 1345.
(51) at page 1354.
(52) L.R. 3 Eq. 1 35.
(53) at page 38.
(55) at page 7.
(56) at page 21.
(57) at pages 4 and 5.
Mr Neil Cameron is a solicitor and an expert in Church law.
He is a member of the Standing Committee of the Sydney Synod and is also a member of the General Synod.
Document added Friday, 9 October 1998
(In this format, Copyright Anglican Church League 1998.) www.acl.asn.au