JUDICIAL INTERVENTION IN THE AFFAIRS OF UNINCORPORATED RELIGIOUS ASSOCIATIONS IN NEW SOUTH WALES
Robert Tong AM
LLB (Syd), LLM (Lond) Solicitor of the Supreme Court of New South Wales and the High Court of Australia
A thesis submitted in partial fulfilment of the requirements for the degree of Doctor of Juridical Science
Faculty of Law Queensland University of Technology 2012
CERTIFICATE OF ORIGINAL AUTHORSHIP
I certify that the work in this thesis has not previously been submitted for an award at this or any other higher education institution. To the best of my knowledge and belief, the thesis contains no material previously published or written by another person except where due reference is made.
Robert Tong Student number n 6958923 20 June 2012
i
ACKNOWLEDGEMENTS I owe a significant debt to Professor Myles McGregor-Lowndes OAM. As Director of the Australian Centre of Philanthropy and Nonprofit Studies, Myles has a very active interest in corporate governance for philanthropic and non-profit organisations. Myles constantly urged me to articulate the jurisprudence while I was more taken by Anglican legal and constitutional history. Both his patience and prodding are gratefully acknowledged by this finished work. Professor Bill Duncan has provided welcome ‘big picture’ comment and direction.
My secretaries Rosemary Brown and Estelle Pulman have cheerfully typed obscure passages from judgments ancient and modern and I thank them. Beryl Bessie’s proof reading saved me from many errors.
To my wife Winsome for her forbearance, patience and encouragement, thanks. The lost weekends and evenings are about to return! My children willing aided me with word processing lessons and their collective thesis writing experiences. There was always a race to see if they could be called ‘doctor’ before Dad. And so to Dr Andrew, the Reverend Peter, Dr James, Dr Michael, Stephen (who has just embarked on his own quest for a Cambridge PhD) and Sylvia (two years to go), thanks very much.
I acknowledge the assistance of library staff in locating obscure references and the substantial repository of resources available to me in the following libraries: House of Lords Records Office; Kings College London, Library; Lambeth Palace Library; The Law Society of New South Wales Library; London University Library; London School of Economics and Political Science Library; Moore Theological College Library; New South Wales State Library; Queensland University of Technology, Law Library; Supreme Court of New South Wales Library; The University of Sydney: Fisher Library; The University of Sydney: Law School Library; The University of New South Wales Law Library; University of Technology, Sydney (Blake Library).
The law is stated at 20 June 2012.
ii ABSTRACT
The leading Australian High Court case of Cameron v Hogan (1934) 51 CLR 358 confirmed that associations which are 'social, sporting, political, scientific, religious, artistic or humanitarian in character’, and not formed ‘for private gain or material advantage’, are usually formed on a basis of mutual consent. Unless there is some clear, positive indication that the members wish to relate to each other in a legal fashion, the rules of the association will not be treated as an enforceable contract in contrast to the rules of incorporated bodies.
Australian unincorporated associations experiencing internal disputes, like those in most other common law jurisdictions, have found courts reluctant to provide a remedy unless there is a proprietary interest or trust to protect. This is further compounded by the judicial view that an unincorporated association has no legal recognition as a ‘juristic person’. The right to hold property and the ability to sue and be sued are incidences of this recognition. By contrast, the law recognises ‘artificial’ legal persons such as corporations, who are given rights to hold property and to sue and be sued. However, when a number of individuals associate together for a non-commercial, lawful purpose, but not by way of a corporate structure, legal recognition ‘as a group’ is denied.
Since 1934, a significant number of cases have distinguished or otherwise declined to follow this precedent of the High Court. A trenchant criticism is found in McKinnon v Grogan [1974] 1 NSWLR 295, 298 where Wootten J said that ‘citizens are entitled to look to the courts for the same assistance in resolving disputes about the conduct of sporting, political and social organisations as they can expect in relation to commercial institutions’. According to Wootten J at 298, if disputes are not settled by the courts, this would create a ‘legal-no- man's land, in which disputes are settled not in accordance with justice and the fulfilment of deliberately undertaken obligations, but by deceit, craftiness, and an arrogant disregard of rights’.
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Cameron v Hogan was decided in 1934. There is an increasing volume of first instance cases which distinguish or, in the words of Palmer J, ‘just pay lip service’ to this High Court decision. (Coleman v Liberal Party of Australia (2007) 212 FLR 271, 278). The dissenting cases seem to call for a judicial policy initiative. This would require recognition by judges that voluntary associations play a significant role in society and that members have a legitimate, enforceable expectation that the rules of the association will be observed by members and in the last resort, enforced by the courts without the need to prove contractual intention, the existence of a trust or the existence of a right of a proprietary nature.
This thesis asks: what legal, as distinct from political, redress does an ordinary member have, when a rule is made or a process followed which is contrary to the underlying doctrines and philosophies embodied in the constitutional documents of an unincorporated religious association? When, if at all, will a court intervene to ensure doctrinal purity or to supervise the daily life of a large unincorporated religious association? My research objective is to examine and analyse leading cases and relevant legislation on the enforceability of the constitutions of large, unincorporated, religious associations with particular reference to the Anglican Church in New South Wales. Given its numerical size, wide geographical spread and presence since the foundation of New South Wales, the Anglican Church in New South Wales, contains a sufficient variety of ‘real life’ situations to be representative of the legal issues posed by Cameron v Hogan which may be faced by other large, unincorporated, religious associations in New South Wales.
In contemporary society, large, unincorporated, religious associations play an important community role. The resolution of internal disputes in such associations should not remain captive to legal doctrines of an earlier age.
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TABLE OF CONTENTS CERTIFICATE OF AUTHORSHIP / ORIGINALITY ...... i ACKNOWLEDGEMENTS ...... ii ABSTRACT ...... iii TABLE OF CONTENTS ...... v 1 IN THE BEGINNING ...... 1 1.1 Introduction ...... 1 1.1.1 Association based on contract or consent ...... 7 1.1.2 What is an unincorporated association? ...... 8 1.1.3 A question of legal personality ...... 9 1.1.4 The Common Law hiatus ...... 10 1.2 Thesis proposal ...... 14 1.3 Areas excluded from consideration ...... 15 1.4 Constitutional Provision for Religion ...... 16 1.4.1 New South Wales ...... 16 1.4.2 The Commonwealth ...... 19 1.5 The utility of this study ...... 21 1.6 The nature of the Anglican Church in New South Wales ...... 23 1.7 A question of jurisdiction ...... 28 1.8 A preliminary view of the cases suggests some possibilities.30 1.9 Literature review ...... 32 1.9.1 Unincorporated associations ...... 33 1.9.2 The Anglican Church of Australia ...... 38 1.10 Outline of thesis ...... 43 1.11 Summary ...... 47 2 UNINCORPORATED ASSOCIATIONS...... 49 2.1 Introduction ...... 49 2.2 The club cases ...... 52 2.3 Forbes v Eden (a ‘church internal dispute’ case) ...... 58 2.4 Cameron v Hogan ...... 62 2.5 Lee v The Showmen’s Guild of Great Britain ...... 68 2.6 Post Cameron v Hogan Developments ...... 69 2.7 Conclusions ...... 77 3 COMPANY MEMBERSHIP AND THE STATUTORY CONTRACT ...... 79 3.1 Introduction ...... 79 3.2 The Statutory Contract ...... 80 3.3 Exegesis of ‘statutory contract’ by the courts ...... 85
v 3.4 A company limited by guarantee ...... 91 3.5 Associations incorporation legislation ...... 93 3.6 Anglican Church Legislation in New South Wales ...... 96 3.7 Anglican Church of Australia Constitutions Act 1902 (NSW) 97 3.8 Anglican Church of Australia Constitution Act 1961 (NSW) .. 99 3.9 Anglican Church of Australia Trust Property Act 1917 (NSW)100 3.10 Anglican Church of Australia (Bodies Corporate) Act 1938 (NSW) 101 3.11 Conclusions ...... 103 4 THE CHURCH OF ENGLAND ...... 106 4.1 Introduction ...... 106 4.2 The meaning of ‘establishment.’ ...... 110 4.3 The nature and character of English religion ...... 113 4.4 The reception of English law in ‘plantations and colonies’ . 115 4.5 The Church of England and the colonial church: a changed relationship ...... 117 4.5.1 Overview ...... 117 4.5.2 Australia ...... 120 4.6 Key Judicial Decisions 1850 to 1867 ...... 124 4.7 Conclusions ...... 129 5 THE CONTRIBUTION FROM SOUTH AFRICA ...... 132 5.1 Introduction ...... 132 5.1.1 William Long ...... 135 5.1.2 John William Colenso ...... 140 5.1.3 Aftermath of Colenso ...... 144 5.2 A new constitution and its consequences ...... 146 5.2.1 Merriman v Williams ...... 147 5.2.2 The Colonial Bishoprics Fund ...... 153 5.3 Conclusions ...... 156 6 IN COURT: AUSTRALIAN ‘CHURCH INTERNAL DISPUTE CASES’ ...... 158 6.1 Introduction ...... 158 6.2 Leading Australian ‘church dispute’ cases ...... 158 6.2.1 MacQueen v Frackelton ...... 159 6.2.2 Wylde v Attorney-General for New South Wales ...... 167 6.2.3 Scandrett v Dowling ...... 179 6.2.4 Ermogenous v Greek Orthodox Community of South Australia ...... 185 6.2.5 Plenty v Seventh Day Adventist Church of Port Pirie ...... 190 6.3 Summary ...... 191 7 OTHER AVENUES TO RESOLVE INTERNAL DISPUTES .... 194 7.1 Introduction ...... 194
vi 7.2 Managing Church Property ...... 194 7.2.1 Aid from the legislature ...... 195 7.2.2 What is property? ...... 196 7.2.3 Property held on trust ...... 198 7.2.4 Power to vary trusts ...... 200 7.3 Anglican procedures to resolve internal disputes ...... 203 7.3 Conclusions ...... 210 8 THE END OF ALL THINGS ...... 213 8.1 Introduction ...... 213 8.2 The thesis: a summary ...... 214 8.3 Some practical answers ...... 217 8.4 Areas for further research ...... 223 8.5 Conclusions ...... 224 8.5.1 Parliament ...... 225 8.5.2 The courts ...... 228 9 CHRONOLOGY ...... 232 DATES and EVENTS...... 232 10 ANNEXURES ...... 238 10.1 Archbishop Sumner’s Bill in the House of Lords 1853 ...... 238 10.2 Appellate Tribunal Opinions ...... 242 10.3 Appellate Tribunal Membership...... 244 11 BIBLIOGRAPHY ...... 247
vii 1 IN THE BEGINNING
1.1 Introduction On successive days in February 2009, the Sydney Morning Herald featured stories on church disputes. ‘Priest fired for unholy communion’ was one headline, ‘Church legal battle divides Macedonian congregants’ was the other.1 The first dispute concerned a Roman Catholic priest sacked from his parish by the Archbishop of Brisbane for being ‘not in communion with Rome’. Allowing women to preach, blessing same sex couples, and denying the Virgin Birth were some of the alleged practices and beliefs which led to the sacking. The Macedonian Church row is over the control of the church property and appointment of priests. The report estimates costs incurred so far as $4 million. There is a suggestion of an appeal. A month earlier, the Full Court of the Supreme Court of South Australia delivered judgment on an appeal concerning expulsion from a Seventh Day Adventist Church. This decision was the culmination of much litigation commencing with events in the 1970s and proceedings commenced in 1982.2 The plaintiffs had been dis-fellowshipped for ‘disorderly conduct, wilful and habitual falsehood and persistent refusal to recognise properly constituted church authority.’3
One might think that cases concerning ‘internal church politics’ are jamming the Australian court lists and that they are coming from all quarters. The three cases mentioned come from different Christian
1 Cosima Marriner, ‘Priest Fired for Unholy Communion’, Sydney Morning Herald (Sydney), 20 February 2009, 7; Harriet Alexander, ‘Church Legal Battle Divides Macedonian Congregants’, Sydney Morning Herald (Sydney), 21-22 February 2009, 3. The first dispute was has been referred to the Hon. Ian Callinan AC a former justice of the High Court for independent mediation. By 26 March, the mediation resulted in the appointment of a new priest to administer the parish and the sacked priest remaining as a priest in the diocese but without an appointment. The second dispute has come to a watershed with the judgment of Young CJ in Eq delivered on 5 March 2009, Metropolitan Petar v Mitreski [2009] NSWSC 106. 2 Plenty & Anor v Seventh Day Adventist Church of Port Pirie [2009] SASC 10. 3 Ibid [29].
1 traditions: Western Christendom (the Church of Rome), Eastern Orthodoxy (the Macedonian Church) and not quite mainstream Protestantism (the Seventh Day Adventists). But this first impression is false. Apart from a Greek Orthodox case4 which went to the High Court of Australia in 2002, only a handful of Australian ‘church internal dispute’ cases made the law reports in the twentieth century. Those cases will be examined in the course of this thesis.
Despite the small number of reported cases, there are governmental inquiries5 as well as ‘live issues’ which point to a need for reform in those areas of law which impact on the governance of churches.
Given that nearly two-thirds of Australians claim a religious affiliation6 it is surprising that more publically reported ‘church internal dispute’ cases have not been generated from this population base. One explanation could be the biblical injunction to ‘love one another.’7 While churches use corporations to hold property or for other administrative purposes, a congregation or denomination is usually an unincorporated association. Historically, courts have been reluctant to interfere in the internal dynamics of unincorporated associations unless property or a trust is in issue. The reasons for this will be analysed in this thesis.
4 Ermogenous v Greek Orthodox Community of South Australia (2002) 209 CLR 95. 5 See, eg, for example: Australia, Industry Commission Inquiry Report, Charitable Organisations in Australia (1995)
2 Here are seven examples of ‘live’ issues in the Anglican Church of New South Wales. Although these are ‘Anglican’ examples, most could be replicated in any of the large religious bodies operating in New South Wales as unincorporated associations.
1) The rising price of land and building costs raises the issue of the utility of maintaining a building in each parish solely for the conduct of church services and mostly on one day of the week. Newer parishes tend to build multi-purpose buildings. It is in the older established parishes where single use buildings continue to exist. Traditional/conservative members commonly resist the use of these dedicated single use buildings for broader community purposes on the other days. What if a parish council, with a progressive majority, and for the stated purpose of outreach into the community, decide to use the church building for indoor basketball Monday to Thursday and a market Friday and Saturday? During those times the church specific furniture will be pushed up one end and covered with a tarpaulin. Would injunctive or declaratory relief be available to the conservatives?
2) The admission of women to the office of priest or bishop evokes different responses in different parts of the Anglican Church. Leaving entirely, to one-side, questions of doctrine or theology, there remains the question: is the office of priest or bishop a ‘right of property’; is the right to a stipend or a right to reside in a particular residence attached to an office, ‘a right of property’ and thus inviting the intervention of the court.
3) Sexual abuse by persons in positions of authority, particularly by clergy is abhorrent. Anglican leadership in every diocese of the Australian church has now moved to correct this by education, protocols, revised selection procedures, victim support and a willingness to bring charges before diocesan tribunals. What if a
3 member of the clergy refused to submit to a diocesan tribunal? Is a remedy available to compel attendance and enforce decisions?
4) Are laypersons within the jurisdictional reach of a church tribunal? Prima facie, the constitutional foundation for Anglican Church tribunals in all 23 dioceses of the Anglican Church of Australia contemplates only clergy as the subjects of jurisdiction.8 To meet this shortcoming could a synod of a diocese legislate to prohibit a lay person from holding office such as churchwarden or parish councillor or from exercising a ministry such as a youth leader or Sunday school teacher? What if the local parish ignored such a ban? Would a court enforce a prohibition or could the layperson have the prohibition judicially reviewed? This question is pertinent to the Brisbane Roman Catholic church dispute at the start of this chapter.
5) The Anglican Church of Australia Constitutions Act 1902(NSW) gives to each (New South Wales) synod, power to make provision for the removal from office, clergy who are incapable or inefficient.9 What if a clergyman refused to go? Would the courts give a declaration to clarify the rights of parties or an order for possession of church premises where a member of the clergy refused to vacate after due process?
6) The Anglican Communion is a fellowship of national churches historically associated with the British Isles. This voluntary association of the various churches in nearly 40 countries are linked together by common history, belief and church practice.10 Where a particular practice of the church in one country, appears to be
8 The Anglican Church of Australia Constitution s 54(2) provides ‘A diocesan tribunal shall in respect of a person licensed by the bishop of the diocese, or any other person in holy orders resident in the diocese, have jurisdiction to hear and determine charges of breaches of faith ritual ceremonial or discipline and of such offences as may be specified by any canon ordinance or rule’. 9 Constitution 3(3) in the schedule to the 1902 Act provides ‘The synod of each Diocese by ordinance may make provision for dealing with cases of incapacity for, or inefficiency in, the discharge of ministerial duty by members of clergy licensed by the Bishop of the Diocese’. 10 LexisNexis, Halsbury’s Laws of England 4th ed, vol xx (at 25th May 2004) 313
4 controversial, then informal processes of report and consultation are put in place at an international level to deal with the controversial issue.
An example is the 2004 Windsor Report11 which deals with the Diocese of New Westminster (Vancouver, Canada) authorising a Public Rite of Blessing for same sex unions and in the diocese of New Hampshire (USA), the election of a practising homosexual, Gene Robinson, as diocesan bishop. Where representative international Anglican bodies12 decide, on principle and process, how to deal with the controversial issue, is there any ground for judicial intervention where a dissenting (national) church charts a different course.
7) In 2005, Sydney Diocesan Synod passed the Affiliated Churches Ordinance 2005 empowering the Standing Committee of the Synod to extend to non-Anglican independent churches various benefits such as group insurance, superannuation and child protection training. Some opponents claim this ordinance to be ultra vires the good order and government power of a diocesan synod,13 as such benefits may be extended to churches beyond the geographical territory of the diocese or to churches which are not Anglican. As these benefits are rights of property, would declaratory or injunctive relief be available to prevent the measure being implemented. If some loss is suffered by a member of an independent church due a failure by the diocese in service delivery, could there be a damages claim against the diocese?
11 The Lambeth Commission, The Windsor Report (Anglican Communion Office London: 2004) 12 Resolution 1.10 of the 1998 Lambeth Conference clearly articulated the ‘official’ Anglican position on the issue of human sexuality. Subsequent Primates’ Meetings especially in Ireland 2005 and the Lambeth Commission in The Windsor Report confirmed this statement. See Anglican Communion website < http://www.anglicancommunion.org/> for futher details of these meetings. 13 Section 2, of the schedule to the 1902 Act
5 This selection of ‘live issues’ range from the local parish level involving ordinary congregation members, to questions of clergy discipline, to matters extending beyond the boundaries of a diocese. Each situation has in it the seeds of an ‘internal church dispute.’ Can the question be resolved by internal church process or is there a final appeal to ‘Caesar.’14 Any appeal to the secular authorities raises the scriptural injunctions noted in footnote 7. This factor alone operates as a major pressure to resolve the dispute ‘in house.’ An external body may also attract unwelcome criticisms and risk a resolution which is unacceptable.
If ‘property’ is the threshold issue for judicial intervention in the internal affairs of an unincorporated association, are there other threshold issues when the unincorporated association is ‘religious’? The broad question to be explored is: why are courts reluctant to intervene in the affairs of unincorporated associations and in particular, unincorporated religious associations?15
At this early stage, it would be helpful to introduce some legal concepts which will appear throughout this thesis. Three questions direct attention to the concepts now canvassed. First, do members of an association relate to each other because a contract binds them together or do they associate by mutual consent? Secondly, what standing does an unincorporated association have in the eyes of the law? Thirdly, is there in fact, a gap in the laws which apply to unincorporated associations which hinder their proper functioning in
14 The Apostle Paul exercised his right as a Roman citizen to ‘appeal to Caesar’, see The Acts of the Apostles 16:11. 15 For example, in Cameron v Hogan (1934) 51 CLR 358, the High Court of Australia refused an injunction to prevent the exclusion of the plaintiff from the Australian Labour Party in the state of Victoria, as the rules of the association did not create enforceable contractual rights and duties between members; in Scandrett v Dowling (1992) 27 NSWLR 483 the New South Wales Court of Appeal dissolved an interim injunction restraining a bishop from ordaining certain women as priests, as the constitution of the Anglican Church in New South Wales was only binding on members in respect to matters of property.
6 society? Each question is answered briefly in the following paragraphs and more fully in the relevant chapters of this thesis.
1.1.1 Association based on contract or consent In the law of contract, courts will uphold the terms of an agreement (that is enforce rights), unless the agreement is social, domestic or non-commercial in character.16 As a leading text notes, ‘The question whether members of a club, voluntary association or a political party have enforceable rights among themselves, for example, for breach of the rules of the club or party, is one that has attracted some judicial attention’.17 In other words, what is the nature of the agreement between the members of a ‘club, voluntary association or a political party’? Is it an agreement which the courts will uphold?
An intention ‘to create legal relations’, is one essential requirement for a binding contract. In ‘ordinary commercial transactions it is not normally necessary to prove that the parties to an express agreement in fact intended to create legal relations’,18 the commercial character of the transaction demonstrates that the parties intend to create a legal relationship. Thus the traditional view that ‘agreements made in a commercial context are presumed to be made with an intention to create legal relations, while agreements made in other contexts are not presumed to be made with such an intention.’19 While Cheshire and Fifoot identify a number of circumstances where contractual intention is an issue,20 this thesis will only examine how this contractual element impacts on the
16 See, eg for example discussion in John W Carter, Elisabeth Peden and G J Tolhurst David J Harland, Contrarct Law in Australia, (Butterworths, Sydney: 5th 3rd ed, Sydney: 2007 1996) [403]-[404]171. 17 Nicholas Seddon and Manfred P Ellinghaus, Cheshire and Fifoot’s Law of Contract, (LexisNexis Butterworths 9th ed, Sydney: 2008) 223 . 18 Hugh Beal, Chitty on Contracts (Sweet & Maxwell London: 29th ed, 2004) 2-154. 19 Jeannie Patterson, Andrew Robertson and Arlen Duke, Principles of Contract Law (Lawbook Co 2nd ed, Australia: 2nd ed, 2005) 105. 20 Seddon, and Ellinghaus above n 17, 215. These are: domestic and social agreements; in relation to unincorporated associations; commercial agreements where there is some express statement excluding the creation of legal relations and some government transactions.
7 enforceability of the constitution of a large unincorporated religious association.
If a voluntary association is not founded on a contractual basis, then the relationship holding members together is one of ‘consensual compact.’ The compact can be described as the 'rules or procedures which, construed in their context and with regard to their purpose, can be seen as adopted by the members of a non-profit organisation in order to express their shared ideals, purposes or beliefs rather than in order to create contractually binding rights and duties enforceable in a court of law.'21
The nature of the ‘agreement,’ contractual or consensual, between the members of an association may well determine whether a court will intervene to resolve internal disputes. The idea of an unincorporated association is now examined.
1.1.2 What is an unincorporated association? Conceptually, an unincorporated association falls outside the category of a partnership as defined by the Partnership Act 1892 (NSW).22 A partnership is an association of persons to fulfil a business purpose. The associations under view in this thesis have a purpose other than profit. Lawton LJ provides a useful description of an unincorporated association:
two or more persons bound together for one or more common purposes, not being business purposes, by mutual undertakings each having mutual duties and obligations, in an organisation which has rules which identify in whom control of it and its funds rests and on what terms and which can be joined or left at will.23
21 Carter v New South Wales Netball Association [2004] NSWSC 737 [86]. 22 The original 1892 definition of ‘partnership’ in section 1 of the 1892 Act stated ‘Partnership is the relation which exists between persons carrying on a business in common with a view of profit.’ 23 Conservative and Unionist Central Office v Burrell [1982] 1 WLR 522, 525.
8 Slade LJ said something similar: ‘an association of persons bound together by identifiable rules and having an identifiable membership.’24
Halsbury conveniently describes an unincorporated association and the relationship of members to each other as:
The members of an unincorporated association are bound together for a common purpose or purposes by mutual undertakings inter se to carry out such purpose or purposes, and to comply with the mutual rights and obligations which are stated in the rules of the association. The basis of this relationship is generally accepted to be consensual but it is unclear in Australia whether, in all circumstances, the rules of a voluntary unincorporated association will be construed as creating a legally enforceable contractual relationship between the members.25
In summary, the essential elements are, ‘common purposes but not for business’, and ‘mutual rights duties and obligations’ of members to each other. As these associations are not incorporated or fall under the purview of partnership law, there is the question of their standing in the eyes of the law. It is this to which we now turn.
1.1.3 A question of legal personality As the relationship which binds members of an unincorporated association to each other is not usually contractual, a court will have no immediately apparent jurisdictional basis for intervention in the internal affairs of the association. The reluctance of courts to intervene in the affairs of unincorporated associations may be explained from another standpoint. Courts only comprehend ‘persons’. Unless an entity has ‘legal personality’ the courts are blind. The capacity ‘to sue or be sued and to hold property’ is an incident of legal personality. The difficulties facing a non-member seeking to sue an unincorporated association are no less for a member seeking
24 Re Koeppler's Will Trust [1985] 3 WLR 756, 771. 25 LexisNexis, Halsbury’s Laws of Australia (at 25th May 2004) Voluntary Associations [435-300].
9 redress for a wrong suffered by the member at the hands of the association.
The fundamental problem of unincorporated associations is their lack of legal personality and therefore, lack of recognition by the court. In broad terms, a natural legal person, whether an infant or adult, could be comprehended by the court.26 The other category is that of artificial legal person and, broadly, that class is restricted to incorporated bodies. An artificial legal person could be a corporation sole or a company incorporated under company legislation. Additionally, and for the purposes of regulation, the courts may recognise ‘something which is not a human being as a legal unit.’ Ships and idols are examples of this.27
1.1.4 The Common Law hiatus As we noted in the previous section, the lack of legal personality has meant that the common law development of law relating to unincorporated associations has been slow. However, there is now judicial recognition that even without legal personality, the activities of an unincorporated association are legitimate activities not tainted by earlier notions of sedition.
In 2008, a Queensland Judge of Appeal wrote:
Any association of persons, whether voluntary or contractual, is an exercise of legal personality: the choice of one legal person to associate or disassociate from another is an exercise of the legal capacity enjoyed by all legal persons.’ The ‘assumption of freedom of choice and association … is merely to recognise a fundamental postulate of the common law.28
26 At common law, contracts for necessaries may be enforced against minors and there are different age limits for minors in crime, torts and marriage. 27 Harold A J Ford, Unincorporated Non-Profit Associations. Their Property and Their Liability (Clarendon Press, Oxford: 1959) xxi. 28 Patrick A Keane, ‘Judicial Review: The courts and the academy’ (2008) 82 Australian Law Journal 623,629. In 2010, Keane was appointed Chief Justice of the Federal Court of Australia.
10 In support of these statements, Keane JA, cited the High Court of Australia, ‘Under a legal system based on the common law, “everybody is free to do anything subject only to the provisions of the law.”’ 29
It was not always so. Ford, observes that while the law has been developed and settled for grouped individual activity as a partnership, or group activity as an incorporated association of persons, the law has 'failed to provide a settled place for the unincorporated group not organised for profit.' 30 The common law has attempted to deal with legal issues raised by these groups by applying some rules developed for individuals or, applying settled rules regarding agency or co- ownership of property.
Both Ford and Fletcher31 note that this underdeveloped part of the law of associations was due to the requirement for a Royal Licence for persons to operate as a group entity. Where a group of persons who had not been incorporated acted as if they were incorporated, the members of the group would be guilty of contempt of the Sovereign because they had usurped his prerogative to grant a licence. In this context, the courts were reluctant to develop solutions to help unincorporated groups hold property and resolve disputes.
Without a Royal Licence, associations were unlawful. When a licence was granted, it was usually letters patent of incorporation. Restrictions on unincorporated associations continued well into the 18th Century. Usually radical or revolutionary groups were the target of regulatory legislation such as the Unlawful Societies Act 1799 (UK) or the Seditious Meetings Act 1817 (UK).32 Although section 28 of the 1817 Act imposed fines for unlawful meetings, section 26 did specifically exempt ‘Freemasons’ Lodges, Quaker meetings or Societies formed solely for religious or charitable purposes.’
29 Lange v Australian Broadcasting Commission (1997) 189 CLR 520, 564. 30 Ford, above n 27, xix. 31 Keith Fletcher, The Law Relating to Non-Profit Associations in Australia and New Zealand (The Law Book Company, Sydney: 1986) 3ff. 32 See G McBain, ‘Abolishing the crime of sedition: Part 2’ (2009) 83 Australian Law Journal 449 where some historical and political context is given to these Acts.
11 In 1802 in Lloyd v Loaring33 Lord Eldon thought 'it is singular that this Court should sit upon the concerns of an association, which in law has no existence'. Eldon LC was apprehensive about giving legal recognition to an entity which was neither a natural person nor an artificial person. At that time, according to Ford, 'the category of artificial persons was closed by reason of the policy which regarded group existence in law as a privilege to be obtained only by grant from the monarch’.34
In recent times, courts have devised some procedures to allow group interests to be represented in litigation,35 but only legislation can resolve the fundamental problem of legal invisibility. In Australia and New Zealand, ‘association incorporation acts’ have been passed which allow charities and social groups to incorporate and thus, obtain legal personality. Where the association is large and amorphous, such as a religious denomination, the ‘associations incorporation’ legislation or even, incorporation under the companies legislation, may be inadequate for the overall purposes of such an association. Those legislative provisions may be useful for some activities conducted by an unincorporated religious association, such as bookshops, aged care or the provision of social services but, the overall central purpose of churches cannot be served by the corporate structures under either form of corporation legislation.
The judicial description of an unincorporated association has remained essentially unaltered over the years. A recent example is Trustees of the Roman Catholic Church v Ellis, where an unincorporated association which is not a partnership is described as ‘a group of individuals who are associated for a lawful purpose other than profit and who may or may not have a rigid constitution or a fixed and finite membership’. 36 While this definition will adequately cover a religious denomination it misses the dimension of individual purpose or belief which is integral to membership of a religious association.
33 (1802) 6 Vesty 773; 31 ER 1302. 34 Ford, above n 27, xx. 35 Developments in the law of declaratory relief and court rules allowing representative actions have permitted access to the courts which was previously denied. See Peter W Young, Clyde Croft and Megan L Smith On Equity (Lawbook Co, Sydney 2009) 234, 970ff. 36 [2007] NSWCA 117, [47].
12
The question remains, is it the ‘non-commercial’ or ‘not for profit’ character of many unincorporated associations, with membership based on consent, rather than on an intention to create legally binding relationships, which make the courts reluctant to interfere in their affairs?
Two other reasons suggest themselves for the reluctance of courts to intervene in the internal affairs of unincorporated associations. First, if a matter can be dealt with internally, as in Wilcox v Kogarah Golf Club,37 a court will not interfere. In that case, the suspension had been served by the time the matter came on for hearing. Secondly, characterising the dispute as domestic or public may give a court some discretion even where a proprietary right is involved.
Where a religious association is in a dispute requiring a court to construe doctrine, the High Court has expressed a measure of distaste. In Wylde v Attorney-General (NSW)38 Rich J began his judgment ‘The subject of this unhappy controversy is only fit for a domestic forum and not for a civil court. Unfortunately it is not an example of “charity” in the New Testament sense or of the command to love one another.’39 Williams J began ‘I have found this appeal difficult and distasteful, difficult because a civil court has to adjudicate in a suit which involves questions of ecclesiastical law with which it is not familiar, and distasteful because it is unfortunate that a suit of this sort should have reached a civil court at all.’40 Where the dispute does not involve doctrine there appears to be no overt reluctance to provide a remedy.
37 (1996) 14 ACLR 420. 38 (1948) 78 CLR 224. 39 Ibid 273. 40 Ibid 297.
13 1.2 Thesis proposal What legal, as distinct from political, redress does an ordinary church member have, when a rule is made or a process followed which is contrary to the underlying doctrines and philosophies embodied in the constitutional documents of an unincorporated religious association? When, if at all, will a court intervene to ensure doctrinal purity or to supervise the daily life of such an unincorporated association?
Some major questions present themselves: (a) Can the underlying jurisprudence be articulated in any modern and meaningful way? (b) Are there public policy considerations which dictate the present trajectory of the common law, and if so, do they remain relevant to the future development of the law of associations? The assessment of relevance may raise questions of reform. It might not be possible, given the word length limitations, to properly explore these questions.
Also, given the word length limitations, I intend to answer the question, not by reference to all unincorporated associations ‘at large’ but rather by restricting the focus to ‘religious’ unincorporated associations. My research objective is to examine and analyse leading cases and relevant legislation on the enforceability of terms of constitutions of unincorporated religious associations and use the Anglican Church in New South Wales as the paradigm. The reason for the choice of this unincorporated association is given in section 1.4 of this Chapter.
My hypothesis is that a court requires: (a) the existence of a right of a proprietary nature; or (b) the existence of a trust; or (c) a clear intention that the members intend that the rules be binding as a contract between members, before, it will intervene in the affairs of an unincorporated association.
14 This hypothesis will be tested through the example of the Anglican Church in New South Wales, an unincorporated religious association.
1.3 Areas excluded from consideration This thesis does not give any real consideration to Associations Incorporation legislation in New South Wales or in the other Australian states. The reason is that the main church denominations in New South Wales do not use this legislative provision for their central structures, which remain as unincorporated associations. In New South Wales, the Parliament was, and is, willing to pass property legislation to assist churches to hold and manage their property. Chapter 7 sets out some of that detail. By contrast, in South Australia, where Associations legislation first saw the light of day in 1858, Anglicans and others took advantage of that legislative provision. Some of that detail is set out in chapter 3.
In section 2.1 of chapter 2, reference is made to four problems identified by Professor Baxt relating to unincorporated associations. The fourth problem identified is the right of members to take legal action against other members. This thesis concentrates only on the fourth problem area. There is no consideration of the other three problem areas because they do not bear directly on the thesis topic. However, because the law concerning unincorporated associations is relatively undeveloped, extended examination of the other three ‘Baxt’ questions, by way of further research, may yield some fruit. The word length limitations constrain this examination in this thesis.
A further exclusion is an examination of how judicial policy is formed and changed. While the common law method of judicial decision- making can be described as ‘incremental’, that is, gradual change, how do values and policy considerations affect the choices between competing legal arguments? In McKinnon v Grogan41 Wootten J
41 [1974] 1NSWLR 295.
15 makes a strong plea for judges to take the lead in developing the area of law concerning court assistance in resolving internal disputes in associations. Again, thesis limitations preclude this examination.
The next section examines whether a religious association has ‘standing’ because of some constitutional provision.
1.4 Constitutional Provision for Religion Is there any constitutional ground for an aggrieved member of a religious association to mount a claim for judicial relief based on membership of a religious association? This would deal with the issue of ‘standing’, or in other words resolve the matter of the ‘invisibility’ of unincorporated associations. This question is asked in relation to Australia because in England, the Church of England, is established and this status gives it direct access to the courts. The position in New South Wales is considered before turning to the Commonwealth.
1.4.1 New South Wales What was the official stance of the Imperial government towards religion in the new penal colony of New South Wales? 42 The Governor’s43 Instructions of 25 April 1787 contain this statement about religious observance:
And it is further Our Royal Will and Pleasure that you do by all proper methods enforce a due observance of Religion and good order among all the inhabitants of the new Settlement and that you so take such steps for the due celebration of publick Worship as circumstances will permit.
42 When the American Revolutionary War (1775-1783) concluded with the loss of the ‘Thirteen Colonies’, the government of the United Kingdom had to find alternative venues for transportation of convicts. Cook’s earlier discovery of Botany Bay (28 April 1770) offered a solution. See C Manning H Clark, A History of Australia (Melbourne University Press, Sydney: 1968), vol 1, 59. 43 Captain Arthur Phillip RN (1738-1814).
16 The British government appointed the Reverend Richard Johnson 44 as Chaplain to the new penal colony.45 Thus Christianity, in its official Anglican expression arrived on ‘Terra Australis’ as part of the apparatus of government. His official position in the colony was unique: while a clergyman of the Established Church, he was on the payroll of the government and he was a military chaplain appointed by commission in the same way as the other senior officers.46 Other chaplains47 were appointed by Whitehall in succession to Johnson with similar duties and rights and they, like Johnson were appointed civil magistrates.48
On the constitutional front, the ‘penal colony’ character of New South Wales was dramatically improved in 1824 with the Imperial
44 1755-1827, BA Cambridge (Magdalene College). 45 Clark, above n 43, vol 1, 75, says the appointment was on the recommendation of the Society for the Propagation of the Gospel. However, Stephen Judd and Ken Cable, Sydney Anglicans (Anglican Information Office, Sydney, 1987) 6 and Bruce Kaye, (ed), Anglicanism in Australia (Melbourne University Press, Melbourne: 2002) 9, give the credit for the appointment to the Eclectic Society and possibly the influence of reformed slave trader the Rev John Newton, author of Amazing Grace. 46 ‘You are to observe and follow such orders…from our Governor…or any other of your superior officers, according to the rules and discipline of war’. Historical Records of New South Wales (Government Printer, Sydney, 1892-1901). 47 The Rev Samuel Marsden was the second Chaplain. He arrived in 1794 and died in office in 1838, see Alexander T Yarwood, Samuel Marsden (Melbourne University Press, Melbourne, 1977). For details of Church of England clergy who served in New South Wales in the first one hundred years see Marcus L Loane, Hewn from the Rock (Anglican Information Office, Sydney, 1976). 48 Professor Ken Cable provides an insight on clergy and the office of magistrate: ‘Johnson, Marsden, Cartwright and Fulton were all, at one time or another, magistrates. Only Johnson and Marsden showed any liking for the office or displayed any zeal in performing it. For this, Marsden was strongly criticised at the time; and most historians still hold it against him. It must be remembered, on the other hand, that the period 1770-1820 saw the heyday of the clerical justice in England. Before the eighteenth century, few clergymen were JPs. By the end of it, most of the learned and conscientious beneficed clergy in rural areas were on the commission. They were leaders among the magistrates for legal reform, prison reform, the preservation of public morality and the improvement in the poor law. After 1815, as in New South Wales, they came to be criticised for holding what were alleged to be conflicting offices in Church and State. But on the whole, their contribution was a notable one. It is to be remarked that Wilberforce secured much support from clerical justices in his campaigns for moral reform – and that Wilberforce was an important figure in securing the appointment of Johnson and Marsden to New South Wales. It is probable, therefore, that these strongly Evangelical chaplains looked on their magisterial duties, at least in the early years and before criticism became too vocal, in the same way as Wilberforce. Here, then, was a connection between the Church and local authority in the early days of New South Wales.’ Kenneth J Cable, The Churches and Local Government Finance, (Ian J Harvey, Sydney: 1966) 21.
17 Parliament passing the New South Wales Act 182349 which provided for a Legislative Council. This was the beginning of parliamentary government in the colony.50 The same Act provided for a Supreme Court and a Chief Justice. Full self-government came to New South Wales in 1855 when the Imperial Parliament passed the New South 51 Wales Constitution Statute. The old Legislative Council was replaced by a bicameral legislature with power to make laws for ‘the peace, well-being and good government of NSW’.
The 1855 Constitution gave no position to religious office holders, and there was no explicit reference to religion. However, membership of the Legislative Assembly had some restrictions,52 and clergy of any religious persuasion were precluded from membership of the Assembly, but not from appointment or election to the Council. This reflected the political reality that, in New South Wales, no religious association had a special place in the legislative sun.53
49 4 George 1V.c.96 This Imperial Act also provided for a Supreme Court, a Chief Justice and a Legislative Council for Van Diemen’s Land (later called Tasmania) which was then part of NSW. 50 This Council had nominated members and limited powers but it replaced the Governor as the sole law maker. One of the nominated members was the newly appointed Archdeacon of New South Wales, Thomas Hobbes Scott (1783-1860). The Archdeaconry of New South Wales was part of the Diocese of Calcutta which put Scott and the other clergy under the spiritual and ecclesiastical jurisdiction of the Bishop of Calcutta. See, Anne Twomey, The Constitution of New South Wales (Federation Press, Sydney 2004) 2 fn 8. 51 18 & 19 Victoria c.54 which contained a Schedule enacted as the New South Wales Constitution Act (17 Victoria No 41). 52 A person could not be both a member of the Legislative Council and the Legislative Assembly (s17); a person holding an office of profit under the Crown could not be a member of the Legislative Assembly unless that person was the Colonial Secretary, Colonial Treasurer, Auditor General, Attorney General or Solicitor General (s18); a similar restriction applied to members of the armed services (s19). 53 Section XX provides: No person shall be capable of being elected a Member to serve in the said Assembly, and of sitting and voting therein, who shall be a Minister of the Church of England, or a Minister, Priest or Ecclesiastic, either according to the Rites of the Church of Rome, or under any other Form or Profession of Religious Faith or Worship.It is interesting to note that as at 1/1/2011, the New South Wales Legislative Council has in its membership the Rev Fred Nile and the Rev Dr Gordon Moyes AC who are members with a specifically Christian platform.
18 1.4.2 The Commonwealth The Australian Constitution makes very limited reference to religion. 54 Section 116 states:
The Commonwealth shall not make any law for establishing any religion, or for imposing observance, or for prohibiting the free exercise of any religion, and no religious tests shall be required as a qualification for any office or public trust under the Commonwealth.
Prior to the American War of Independence (1775-1783), the Church of England was the established church in a number of the English colonies in North America.55 After the Revolution, the American Constitution separated ‘church and state.’ Section 116 of the Australian Constitution corresponds to the following provisions of the Constitution of the United States:
First Amendment Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof: or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Article VI, s 3 [No] religious test shall ever be required as a qualification to any office or public trust under the United States.
The Australian Constitutional Convention debates give some background to s116 of the Australian Constitution.56 Since Federation,
54 For contemporary comment on s116 see John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (1901 edition), (Legal Books, Sydney: 1976). 55 Carla G Pestana, Protestant Empire, Religion and the Making of the British Atlantic World. (University of Pennsylvania Press, Philadelphia: 2011). 56 Although s116 restricts only the Parliament of the Commonwealth, it appears in Chapter V of the Constitution which is headed 'The States'. The reason is that the original clause in the 1891 draft Constitution applied only to the states. This prohibition against state legislation was omitted at the Melbourne session of the Convention in 1898, on the ground that it was an unwarranted invasion of the legislative powers of the future states. Henry Bournes Higgins, Victorian delegate and future High Court judge, argued successfully for the restriction of federal power. He maintained, on the basis of what he said was American experience, that without a suitable restriction on the power of the Commonwealth, the mention of 'Almighty God'
19 the ‘church and state’ divide in Australia has had few protagonists pursuing the issue to the High Court of Australia. There have very been few High Court cases where s116 is central. In contrast, the number of First Amendment cases is large.57 The Australian journal literature on s116 has also been sparse.58 There is one recent book on this area God and Caesar in Australia-Aspects of Church and State from 1788.59
Few High Court cases have considered s116 in depth.60
It is clear that federally and in New South Wales, there is no constitutional provision which grants legal personality to an unincorporated religious association. Entry to the court system for the resolution of disputes must be based on some other ground. This
in the preamble might result in the High Court holding that the Commonwealth could make laws about religion. The fact is that s 116 is a denial of legislative power to the Commonwealth, and no more. No similar constraint is imposed upon the legislature of the states. The provision therefore cannot answer the description of a law which guarantees within Australia the separation of church and state. See the Historical note in the Final Report of the Constitutional Commission (1988), vol 1, 610. 57 The United States Supreme Court up to 1994, considered more than 145 First Amendment cases, see Carl H Esbeck, 'Table of United States Supreme Court Decisions Relating To Religious Liberty 1789-1994' (1993-1994) 10 Journal of Law and Religion 573. 58 For an early journal discussion of the religious guarantee see Francis D Cumbrae- Stewart, 'Section 116 of the Constitution' (1946) 20 Australian Law Journal 207; Clifford Pannam, 'Travelling Section 116 with a US Road Map' (1963) 4 Melbourne University Law Review 41. Upham, n 59 brings the discussion up to date. 59 Bruce Upham, (Zeus Publications, Queensland: 2009) compares the situation in Australia to that in the United States of America and several European countries. The several High Court challenges, based on S 116 of the Federal Constitution, in 1912, 1943, and 1981 to federal government initiatives are also covered. All three were rejected. 60 Adelaide Company of Jehovah's Witnesses Incorporated v The Commonwealth (1943) 67 CLR 116 came in the midst of World War 2 when the High Court considered whether the defence power limited the free exercise of religion guarantee. For criticism of that case see Leslie Zines, The High Court and the Constitution (Butterworths, Sydney: 1997) 403 and Stephen McLeish, 'Making Sense of Religion and the Constitution: a Fresh Start for s 116' (1992) 18 Monash Law Review 207, 209. Forty years later, in Attorney-General (Vic) ex rel Black v The Commonwealth of Australia (1981) 146 CLR 559 (the DOGS case) the question was financial assistance to non-government schools. While ‘religion’ was defined for a taxing act in Church of the New Faith v Commissioner of Pay-roll Tax (Vic) (1983) 154 CLR 120 there was little consideration of s116. That section was directly considered in Krygger v Williams (1912) 15 CLR 366; Judd v McKeon (1926) 38 CLR 380; Church of Scientology Inc v Woodward (1982) 154 and Kruger v Commonwealth (1979) 190 CLR 1. More recently Williams v Commonwealth [2012] HCA 23 considered a claim that Commonwealth funding of school chaplains was in breach of s116.
20 thesis examines the other grounds. The Australian position is also the position in the United States of America. In England, the ‘established’ nature of the Church of England gives it access to the courts of the land without needing to address issues of standing.
1.5 The utility of this study
Conclusions drawn from pursuing the research objective and testing the hypothesis may allow the underlying jurisprudence to be articulated in a modern and meaningful way. This would assist the Anglican Church in New South Wales and similar ‘faith-based’ associations in managing internal disputes. A study of the cases may also uncover some coherent basis to argue for a fundamental judicial policy shift so that a court could enforce the constitutional provisions of an unincorporated association, irrespective of whether a proprietary right exists or not. In other words, a court could treat the constitution of an unincorporated association as a binding contract between all members. Public policy considerations would have a bearing if this shift in direction were to take place.
In the last fifteen years, governments have shown some interest in this area of law.61 In September 2000, the Prime Minister established an Inquiry into the Definition of Charities and Related Organisations with the aim of creating ‘legislative and administrative frameworks at the Commonwealth level that are appropriate for, and adapted to, the social and economic environment of Australia.’ The definition or re- definition of a ‘charity’ will impact on unincorporated associations working in this area.
Building on the 2000 Inquiry, the Senate, in July 2008, referred 'Disclosure Regimes for Charities and Not-For-Profit Organisations' to
61 See examples above in n 5.
21 the Senate Standing Committee on Economics for inquiry and report. The terms of reference required examination of ‘models of regulation and legal forms that would improve governance and management of charities and not-for-profit organisations and cater for emerging social enterprises.’ Chapter 7 of the report considers the various legal structures used by such organisations and recommends ‘that a single, mandatory, specialist legal structure be adopted for not-for-profit organisations through a referral of state and territory powers’.62 Given the reluctance of States to refer powers to the Commonwealth, this recommendation has many hurdles to jump.
Australia is not alone in considering reform in this area. A Scottish report canvasses the various legal structures available to associations, the vexed issue of legal personality, makes comparisons with jurisdictions such as Australia and New Zealand and suggests a new corporate vehicle for non-profit associations.63
Practical problems require sound solutions. Scarce resources, legal issues, costs and adverse publicity must be taken into account by those responsible for the governance of voluntary associations. While resolution of issues and disputes can be expensive if a legalistic approach is taken by a governing body, there are times when there is no choice but to follow the ‘letter of the law’. In such circumstances, administrators would be comforted to know that the sanction of the court is available to ensure due process in decision- making.
62 See, Disclosure regimes for charities and not-for-profit organisations, Commonwealth of Australia 2008. In December 2010, a Not-For-Profit Sector Reform Council was appointed by the Minister for Social Inclusion, the Hon Tanya Plibersek MP. The Council will drive the Federal Government's plans to reform the sector, and support the implementation of the National Compact: working together. 63 Discussion Paper on Unincorporated Associations, Scottish law Commission (discussion paper 140)
22
1.6 The nature of the Anglican Church in New South Wales This section introduces the nature and structure of the Anglican Church in New South Wales as an unincorporated association. Membership of the association, from a legal point of view, is defined by self-declaration of membership for participation in governance activities. For example, the 1961 Constitution,64 defines ‘member’ for the purposes of that constitution.65 No central membership rolls are kept by a diocese and there is no requirement at the parish level to maintain membership lists. In the Diocese of Sydney, for example, eligibility to participate in formal parish meetings, or hold office in a parish, is determined by church attendance 66 and self-declaration.67
It is useful to clarify at this point what is meant by being a member of the Anglican Church. Anglican Church membership is at two levels. In a secular sense, described in the preceding paragraph, it is
64 See chapter 3. This constitution operates federally across Australia to bind the 23 dioceses into the Anglican Church of Australia. The text of the constitution is set out as a Schedule to the Anglican Church of Australia Constitution Act 1961(NSW). Each State and Territory has passed similar but not identical covering Acts annexing the 1961 Constitution as a Schedule. 65 Section 74 (1) of the 1961 Constitution provides that ‘Member of this Church’ means ‘a baptised person who attends the public worship of this Church and who declares he is a member of this Church and of no church which is not in communion with this Church’. 66 The Church Administration Ordinance 1990 (Sydney Diocese) defines a parishioner as ‘a person who is a member of the Anglican Church of Australia and who has usually, during the three months in the twelve months preceding the time at which the status of the person as a parishioner is to be determined, attended divine service in a church of the parish. 67 By Clause 7 of the Church Administration Ordinance 1990, ’A person (other than the Minister) is not entitled to take part in or to be counted for the purposes of a quorum at a vestry meeting unless the person has first subscribed the following declaration: I am a member of the Anglican Church of Australia. I have been baptised. I am not less than 18 years of age. I have usually during the three months within the past twelve months attended divine service at the church of … I do not claim to be a parishioner of any other church of the Anglican Church of Australia’.
23 membership of, and participation in, the activities of the unincorporated association.
In a spiritual sense, Anglican Church membership is also membership in the ‘Church of God’. The Anglican Church of Australia conceives itself to be part of the whole company of Christians, whether Anglican or not, throughout the world. Theologians employ various metaphors to describe this entity. In the foundational Anglican liturgical text, The Book of Common Prayer,68 the Baptism Service declares that the baptised child has been ‘grafted into the body of Christ’s Church’. In the foundational statement of Anglican doctrine, The Thirty-nine Articles of Religion, Article XlX, Of the Church, states: ‘The visible Church of Christ is a congregation of faithful men, in which the pure word of God is preached and the Sacraments be duly administered according to Christ’s ordinance…’69 It is the temporal and secular aspect of the Anglican Church which is under examination in this thesis.
For purposes of governance, the Anglican Church in New South Wales is divided into seven, almost autonomous, geographical regions called dioceses, each with its own bishop and synod.70 The constitution of a New South Wales Anglican diocese is found in the Schedule to the Anglican Church of Australia Constitutions Act 1902 (NSW).71 Section 2(1) of the Constitution vests in each diocesan
68 The Book of Common Prayer, (Oxford University Press, Oxford: 1662). This book has special status in the 1961 Constitution as the doctrine and principles of the Church of England embodied in the book are retained and approved, see section 4. 69 The Articles of Religion, agreed upon by the Archbishops, Bishops, and the whole clergy of the Provinces of Canterbury and York, London, 1562. 70 An Anglican synod in the Australian context is the ‘parliament’ for the diocese. 71 The seven New South Wales dioceses are: Sydney, originally founded as Diocese of Australia in 1836; Newcastle, 1847; Canberra/Goulburn, 1863 originally Goulburn; Armidale, 1867 formerly Grafton and Armidale; Bathurst, 1869; Riverina, 1884; and Grafton, 1914. They are constitutionally bound together by a Provincial Constitution which provides for a Provincial Synod to meet at least every five years. It is almost a dead letter because at the individual diocesan level there is plenary power for decisions over most subject matters. It is only decisions which have effect in the Church across the whole of Australia which are reserved for the General (national) Synod.
24 synod, power ‘to make ordinances upon and in respect to 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…’ Other relevant laws can be found in statute, case law and custom.72
Anglican Church property in New South Wales is held in each diocese by private trustees or corporate trustees and, in either case, on charitable purpose trusts.73 Chapter 7 explores this further.
On nomenclature, the Church of England in Australia changed its name to the Anglican Church of Australia in 1976. Before the adoption of a national constitution in 1961 the denomination was known as the Church of England. Generally throughout this thesis the term ‘Anglican’ or ‘Anglican Church’ will be used in reference to the denomination in Australia irrespective of the time period unless the context requires otherwise.
As stated above, it is the temporal and secular aspect of the Anglican Church which is under examination in this thesis. The unincorporated associations examined for this thesis are the large, unincorporated, religious associations such as the Roman Catholic Church, the Uniting Church of Australia and the Presbyterian Church. One
72 For example, s 8 of the covering Act, Anglican Church of Australia Constitution Act 1961 (NSW), to the 1961 Constitution provides: ‘It shall be lawful for any Bishop, Commissary, Administrator, Chancellor, Archdeacon or Registrar holding office in any Diocese of the Anglican Church of Australia to administer to any Bishop, Clergyman or member of the said Church the oath or oaths customarily used heretofore at the ordaining of Deacons or Priests, consecration or enthronement of Bishops, institution of Clergy to a cure of souls in a parish or other ecclesiastical district, instillation, induction or collation to any office on the grant of any licence in the said Church in the State of New South Wales and it should be lawful for such persons to take or make such oath or oaths.’ 73 The purpose trust is defined in s 4 of the Anglican Church Property Trust Act 1917 (NSW) ‘“Church Trust Property” includes all or any part of any real and personal property which may for the time being be subject to any trust whether by dedication, consecration, trust instrument or otherwise or for the use benefit or purposes of the Anglican Church of Australia in any diocese and each such diocese is referred to as the diocese for which the church trust property in question is held.’
25 unincorporated association, the Anglican Church in New South Wales, has been selected as a paradigm for the others.
There are three reasons why the Anglican Church in New South Wales has been chosen as the example.74
The first reason relates to its age, structure and geographical spread. In the appointment of the Reverend Richard Johnson as Chaplain, the Church of England was represented in the First Fleet and from the beginning, the Church of England was an official part of the founding of European settlement in Australia. For a time in the early years of the Colony, the Church of England was treated as if it were the ‘established’ Church, as in England. Establishment gave the Church certain privileges, particularly in having ‘church law’ enforced as part of the law of the land. Whether it was ever ‘established’ or not, the Church of England became, by the mid-1850s, in law, the same as any other religious association in the colony of New South Wales and faced the same problems in having internal disputes resolved by the courts. In time, the Church of England became the Anglican Church of Australia.
As the law governing voluntary associations is state and not federal, the thesis question is focused on the Anglican Church in New South Wales. In that state, the Anglican Church has clergy, congregations and buildings in most suburbs of Sydney and every sizable town in New South Wales. While title to real property might be held centrally by a diocesan property trust, and the clergy’s authority to function, is dispensed by the diocesan bishop, the daily community life of the church is located locally in congregations. This, two level local and regional (diocesan), foci is found in all the major church denominations. In New South Wales, the Anglican Church is not
74 This study does not consider any particular theological doctrines or express any ecclesiological preferences. The choice of this church denomination does not imply that other religious groupings are less worthy of study.
26 incorporated at either the local or diocesan level. For thesis purposes, the Anglican Church in New South Wales is representative of a large, unincorporated, religious association with a geographical spread over the state of New South Wales, with manifestations both local and regional. This makes it a suitable vehicle for the examination of the thesis question. As the other ‘mainstream’ Christian denominations75 are unincorporated associations, study of the Anglican Church in New South Wales can be seen as representative of those other church denominations.
Secondly, the author’s long involvement in the governance structures of the Anglican Church76 has raised the question: ‘How binding are all these constitutions and rules’? Or, in other words, ‘what sanctions can be applied when ‘Anglican laws’ are ignored or flouted’? When will a court intervene in the internal affairs of the association to enforce the terms of ‘Anglican constitutions’? Can secular remedies be applied to resolve an internal church dispute?
Thirdly, one judge has trenchantly stated that ‘citizens are entitled to look to the courts for the same assistance in resolving disputes about the conduct of sporting, political and social organisations as they can expect in relation to commercial institutions’.77 As Wootten J was distinguishing Cameron v Hogan,78 it is reasonable to assume that the phrase ‘sporting, political and social organisations’ is a summary
75 By ‘mainstream’ I mean Roman Catholic (25.8%), Anglican (18.7%), Uniting Church (5.7%) and Presbyterian (3%) of the population according to the Australian Bureau of Statistics 2006. 76 For example, at the diocesan level: membership of the Sydney Diocesan Synod since 1965 and its Standing Committee since 1978, member of the Sydney Diocesan Tribunal, and Deputy Chancellor Diocese of Sydney. At the national level: member of the General Synod since 1981 and its standing committee (1985- 2004, re-elected 2010); since 1992 a member of the Church Law Commission. At the international level: member of the Anglican Consultative Council (1995-2000); member of the Archbishop of Canterbury’s Panel of Reference; Consultant to Governance Task Force, Anglican Church of North America; appointed: a Member of the Order of Australia (AM) for ‘Service to the Anglican church through a range of diocesan and national executive and administrative roles.’ Gazetted, Australia Day 2010. 77 McKinnon v Grogan [1974] 1 NSWLR 295. 78 (1934) 51 CLR 358.
27 of the longer statement describing non-commercial associations, found in Cameron, that is, ‘persons who have combined to further some common end or interest, which is social, sporting, political, scientific, religious, artistic or humanitarian in character, or otherwise stands apart from private gain and material advantage’.79 On this assumption, religious associations are therefore encompassed in Wootten J’s ‘social organisation’ phrase. The Anglican Church in New South Wales is representative of other large religious organisations, which, if the opinion of Wootten J is to be applied, should have the assistance of the courts in resolving internal disputes.
The next two sections survey the several entry points for judicial involvement in resolving internal church disputes.
1.7 A question of jurisdiction The introduction to this chapter identified some key reasons why courts are reluctant to interfere in the internal working of unincorporated associations. One was the lack of legal personality, as such an association is neither a natural legal person nor an artificial legal person; another was the basis of association being consensual rather than contractual; and yet another was the division between ‘public’ and ‘private’ issues, particularly in the area of religion. However, from time to time a case would arise which demanded judicial intervention. Given the importance of property, if some proprietary right was at risk, then that would give a basis for intervention. A more unlikely possibility would be to demonstrate that the members of the association intended their constitution to be a legally binding document.
In the leading Australian case, Cameron v Hogan,80 a majority of the High Court (Rich, Dixon, Evatt and McTiernan JJ), at 370, stated:
79Ibid 370. 80 (1934) 51 CLR 358.
28
[E]xcept to enforce or establish some right of a proprietary nature, a member who complains that he has been unjustifiably excluded from a voluntary association, or that some breach of its rules has been committed, cannot maintain any action directly founded upon that complaint… at common law as well as in equity, no actionable breach of contract was committed … by the failure on the part of its officers to observe the rules regulating its affairs, unless the members enjoyed under them some civil right of a proprietary nature. and at 371:
Such associations are established upon a consensual basis, but, unless there were some clear positive indication that the member contemplated the creation of legal relations inter se, the rules adopted for their governance would not be treated as amounting to an enforceable contract.
In a case directly concerning the Anglican Church in New South Wales, Scandrett v Dowling,81 Priestly JA (with whom Hope A-JA agreed) at 553, quoted with approval, Lord Colonsay in Forbes v Eden:82
A Court of Law will not interfere with the rules of a voluntary association unless to protect some civil right or interest which is said to be infringed by their operation. Least of all will it enter into questions of disputed doctrine, when not necessary to do so in reference to civil interests
At 554, Priestly JA went onto explain how church members were bound on a consensual basis in matters not involving property:
The basis of the consensual compact or contract thus must be a willingness to be bound to it because of a shared faith, or, in the Latin phrase used in some of the materials, in foro conscientiae. Its binding effect does not come from the availability of secular sanctions of state courts of law. The availability of these later sanctions when spiritual matters become mixed with Church property matters, is an incident of the consensual compact or
81 (1992) 27 NSWLR 483. 82 Forbes v Eden (1867) LR 1 Sc & Div 568.
29 contract which means that in those cases where property is involved the consensual compact or contract is given the same effect in relation to property matters, as if it were a common law contract, but does not in my opinion alter the primary basis of that compact or contract.
Halsbury’s Laws of Australia offers this summary:
The traditional position was that a member could not maintain any action alleging a breach of the rules of an association except in circumstances where the member was attempting to enforce or establish a right of a proprietary nature. A court will only accept jurisdiction to hear a complaint by a member that an association’s rules had been breached if propriety rights had been involved, or if there had been a clear indication that the rules of the association were intended to create an enforceable contract. Otherwise the courts refused to intervene in the affairs of voluntary associations and recent cases illustrate that many Australian courts are still reluctant to do so.83
In summary, protection of a proprietary right is the chief entry point for judicial intervention in the affairs of an unincorporated association. A more difficult path is to discover whether the members intended their mutual rights and obligations to be a legal contract. However, the concluding phrase in the Halsbury quotation implies that some first instance courts have found jurisdiction and granted judicial relief. The next section outlines a preliminary view of the cases.
1.8 A preliminary view of the cases suggests some possibilities. The law is not static in the area of the thesis question. For example, Coleman v Liberal Party of Australia, New South Wales Division (No2) critically notes the judicial struggle to justify granting relief in the absence of a proprietary right.84 While judicial efforts to distinguish the precedent value of Cameron v Hogan continue, there are government enquiries aimed at putting unincorporated
83 LexisNexis, Halsbury’s Laws of Australia vol 28 [435-134] 84 (2007) 212 FLR 271.
30 associations on a sound, modern, legal basis and, the present state of the case law suggests some possibilities.
First, where ‘some civil right of a proprietary nature’ (Cameron v Hogan) exists, the courts will intervene to protect those rights. How can these rights be defined? Do they include a right to an Office or to a stipend or a right to occupy an official residence? Are there limits to what can be protected?
Secondly, where there is a breach of trust, equitable remedies will be available. In Wylde v Attorney-General for New South Wales,85 (the ‘Red Book Case’) it was held that where real property was being used in breach of trust because the ritual being carried out in it was contrary to what the terms of the trust permitted, then the court would intervene by injunction to restrain that breach of trust. Equitable remedies are discretionary. How is the discretion exercised?
Thirdly, should the Cameron v Hogan policy of judicial non- intervention become a policy of intervention? In McKinnon v Grogan,86 Wootten J urged such a change.
He said, at 298:
I consider that citizens are entitled to look to the courts for the same assistance in resolving disputes about the conduct of sporting, political and social organisations as they can expect in relation to commercial institutions. and, at 299:
In my opinion, people who join the (rugby) league and subscribe to its constitution and by-laws should be taken to intend to be bound by them and should be entitled to invoke the courts in appropriate circumstances to have their disputes settled.
85 (1948) 78 CLR 224. 86 [1974] 1 NSWLR 295.
31 Religious affiliation and the associations which manifest this identification are still significant social institutions in the fabric of Australian society.87 Members of religious associations should be confident that long-held, traditional practices, rules and doctrines will, in the end, have the sanction of law. The cases which dissent from Cameron v Hogan, may indicate a judicial policy trend to confine Cameron to its own facts.
Fourthly, in company law there is the idea of a ‘statutory contract’ where, by company law, the company constitution is declared to be a contract binding the members of a company. This is further explored in Chapter 3. The constitution of the Anglican Church in New South Wales is found mainly in schedules to two state Acts.88 Does the existence of a covering or enabling Act make a constitution set out as a schedule to that Act more binding on the members of the association? Is the constitution converted into a statutory contract? If there is a statutory contract, who is bound, and in all its provisions or only in some?
In addition to the four reasons above, there appears to be some government momentum to consider filling the common law lacunae by enacting legislation to create specialist, mandatory, legal structure to meet the legal needs of associations.
1.9 Literature review The thesis question examines the reluctance of courts to intervene in the internal or domestic affairs of an unincorporated association, except in limited circumstances. The development of the thesis question directs attention to unincorporated religious associations using the Anglican Church in New South Wales as the particular example.
87 2006 Australian Census figures on Religious Affiliations in Australia show 63.9% Christian, 4.9% other religions; in 1996, the figures were 70.88% and 3.45% respectively; in 1991, they were 73.98% and 2.64%. 88 Anglican Church of Australia Constitution Act 1961(NSW) and Anglican Church of Australia Constitutions Act 1902.
32
The relevant primary public documents are reported cases and Acts of Parliament. The cases and statutes come mostly from New South Wales or the United Kingdom. South Africa contributes a number of cases because several were taken on appeal to the Privy Council and these appellate decisions provide precedent value for other jurisdictions. Secondary sources such as history texts, newspapers, and biographies will be consulted where necessary for the historical context.
Apart from cases and legislation (which are not commented on in this literature review), the literature review material is gathered under two headings, namely, ‘Unincorporated Associations’, and ‘The Anglican Church of Australia’.
1.9.1 Unincorporated associations The broad canvass of the research is unincorporated associations. Text book publications in this area are few in number. Dr Keith Fletcher provides the first comprehensive Australian text, The Law Relating to Non Profit Associations in Australia and New Zealand. 89 Published in 1986, it is the fruit of a doctoral thesis and is replete with references and analysis and a significant source for concepts and examples in this area of law. In his introduction, Fletcher says that he was unprepared for the ‘complex and incompletely developed law relating to unincorporated associations’ in Australia as in his native New Zealand ‘associations of any significance availed themselves of the cheap and simple facility offered by the Incorporated Societies Act 1908’.90 For the Australian situation, Fletcher identifies the ‘central problem of unincorporated associations is their lack of corporate status and consequential lack of recognition by the courts’. Apart from cases which have declined to follow the 1934 High Court Cameron v Hogan case, there is no Australian wide legislation to address this ‘central
89 Fletcher, above n 31. 90 Ibid v.
33 problem’. While there is now state legislation providing for the incorporation of associations formed for sporting, social and community purposes, it is not uniform and is not suited for the governance of a nation-wide association such as a church denomination.
Fletcher further observed that ‘the legal status of an association constitution is uncertain.’91 It is the constitution of an association where in the main, the ‘rules’ which govern the membership relationship will be found. What is the ‘legal status’ of the constitution? Is it a legal contract so that members can sue to enforce it? If not, it is ‘the terms upon which members freely associate for particular purposes’.92 In Cameron v Hogan, where it was held that the relationship of members was consensual, Fletcher’s view is that member could resign if they disagreed with the constitution. Even if the constitution is contractually binding, damages may still not be available for non-observance of the rules.93
Chapter 6 of Fletcher: ‘Membership, Rights and Obligations’ examines the ground which forms the foundations of this thesis. In particular, the section headed ‘Judicial Intervention: The Traditional Bases’ provides a summary introduction to the area under examination by this thesis. Issues such as departure from the constitution, the interpretation of the constitution and the ability to deal with internal irregularities are all surveyed. These issues are further examined in the thesis. Fletcher explains the need for his 1986 doctoral study in these words: '[N]otwithstanding the quality of that research (referring to Lloyd’s 1938 book and Ford’s 1959 publication referred to in the next paragraph), the volume of decisions and new lines of development justify further investigation of this aspect of the law’.94
91 Ibid 44. 92 Ibid 44. 93 Ibid 44. 94 Ibid 4,fn 8.
34 Dr Harold Ford published his Harvard SJD thesis as Unincorporated Non Profit Associations - Their Property and Their Liability.95 Ford's work is penetrating in its analysis of the historical development in America and England of the treatment of unincorporated associations. Part 1 considers gifts of property to an association and whether such gifts are held on purpose trusts. Part 2 examines the legal liability of members of associations and whether association assets are available to meet claims. There is some discussion about court supervision of property held in trust by associations. This discussion does not add any more to the consideration of the New South Wales position (discussed in section 7.4 of Chapter 7) for the purposes of this thesis. Ford does comment briefly on the idea that ‘members of a voluntary association are in a contractual relationship inter se which is evidenced by the constitution and by-laws’.96 This comment is in the context of considering the nature of the interest a member has in the property of the association, and Ford is not persuaded that such a contract exists.
The other work referred to by Fletcher is the earlier, 1938, seminal English work by Denis Lloyd, The Law Relating to Unincorporated Associations.97 Lloyd starts with a consideration of legal personality, moves on to the types of unincorporated associations and then examines specific areas such as tort, contract and holding property. Lloyd concluded that ‘there is no general body of doctrine relating to associations as such…’98 Even after the passage of more than fifty years, this 1938 conclusion merited the observation in the 1992 Independent newspaper obituary of Lloyd that writings relating to unincorporated associations remained ‘even today an 99 underdeveloped subject’.
95 Ford, above n 27. 96 Ibid 6. 97 Lloyd Dennis, The Law Relating to Unincorporated Associations (Sweet & Maxwell, London: 1938). This publication was awarded the Yorke Prize by the Law Faculty, Cambridge University. 98 Ibid 215. 99 Michael Freeman, ‘Obituary: Lord Lloyd of Hampstead,The Independent, (London), 8 January 1993. Freeman is Professor of English Law, University College, London.
35 The undeveloped nature of the common law relating to unincorporated associations is examined in a seminal 1973 article by Baxt.100 This article poses four questions arising from 'some of the anomalies which flow from the operation of our present legal rules applicable to such associations'. The four questions are: (1) The devise of property to unincorporated associations; (2) The ability of associations to contract and hold property; (3) The liability of committee members for contracts and tort; (4) The rights of members of associations to maintain legal action against fellow members and/or committee members. It is this last question which is the focus of this thesis and which is taken up in Chapter 2.
A jurisprudential approach to the issue of non-recognition was taken by Samuel Stoljar, in Groups and Entities: An Inquiry into Corporate Theory.101 Stoljar’s jurisprudential approach to corporate theory is to seek to identify a ‘juristic person.’ Where a group of persons engage in activities as a group, but wishes to have the ‘benefits and burdens’ of the group activity not to be directly attached to them, there is need for a juristic person or a separate legal unit which ‘simply re-distributes certain burdens and benefits. This line of thinking is taken up again in Chapter 2, Unincorporated Associations.
At the more general level, there is usually a limited discussion on unincorporated associations in the opening chapters of texts on partnership and texts on company law. For example, the 11th edition of Ford’s Principles of Company Law gives two pages out of thirteen hundred to ‘Unincorporated non-profit associations.’ For English lawyers, a useful first primer is Unincorporated Associations: Law and Practice by Jean Warburton.102 For Australian practitioners, Sally Sievers, in 1989, provided a handbook ‘for lawyers and other professional advisors but also for the committee members and others directly involved in running the affairs of voluntary associations.’103The
100 Robert Baxt,‘The Dilemma of the Unincorporated Association’ (1973) 47 Australian Law Journal 305. 101 Samuel J Stoljar, Groups and Entities: An Inquiry into Corporate Theory (Australian University Press, Canberra: 1973) 1. 102 Jean Warburton, Unincorporated Associations: Law and Practice (Sweet & Maxwell, London: 2nd ed, 1992). 103 A Sally Seivers, Associations Legislation in Australia and New Zealand (The Federation Press, Sydney:
36 2010 edition is a substantial summary of the present Australian law concerning incorporated associations and the legislation governing them. Sievers, surveys the current case law on unincorporated associations and deals with, albeit in summary form, ‘judicial review of association decisions’.
The most useful ‘literature resource’ is the regular digesting of cases in the rival loose-leaf encyclopaedias of Australian law. Fletcher, is the author of the article on ‘Non Profit Associations’ in The Laws of Australia104 and Seivers is the author of the article ‘Voluntary Associations’ in Halsbury’s Law of Australia.105
In terms of journal articles, the prominence of Baxt 106 has already been noted. Journal articles range across the unresolved issues in this area of law. A few articles have been selected as examples of this range. The particular focus of this thesis, judicial intervention to uphold the constitution of an unincorporated association, is touched on in most articles but is not the main concern of the articles’ authors.
Laski 107 considers the ‘legal personality’ aspect of associations and explores the inconsistencies of personalising associations. Holden,108 writing from a New Zealand perspective, notes that clubs and trade unions and wrongful expulsion have dominated this area of law for many years. Writing in 1971, Holden observes that now other types of association are seeking judicial review. Like Baxt, Holden also poses questions as a means of reviewing this area of law. When should the courts intervene in the internal affairs of voluntary associations? If they wish to intervene, is there a judicial basis to do so? Are the courts able to exercise effective control over the activities of associations? There is a consideration of the basis for intervention: contract, tort, property and some analysis of policy considerations. These will be taken up in the introduction to Chapter 2.
2010). 104 Lawbook, The Laws of Australia, ‘Non-Profit Associations’ Title 4.3 Chapter 3 105 LexisNexis, Halsbury’s Law of Australia, vol 28, ‘Voluntary Associations’. 106 Baxt, above n 100. 107 Harold Laski, ‘The Personality of Associations’ 29 Harvard Law Review 404. 108 A C Holden, ‘Judicial Control of Voluntary Associations’ 4 New Zealand Universities Law Review 343.
37
The impact of associations incorporation legislation on Cameron v Hogan is considered by Seivers and Baxt in ‘The Rights of Members of an Unincorporated Association or a Victorian Incorporated Association to Challenge Decisions of Management - A Continuing Defect in the Law’.109 The article concludes that no reform is possible in this area unless the High Court overrules Cameron v Hogan or there is legislation. Seivers,110 in 2000, argues that unincorporated associations should use associations legislation to incorporate and thereby avoid the many problems attaching to unincorporated status.
An example of corporate governance considerations is an article by Twaits.111 There, the author addresses the statutory and common law duties of office bearers and the remedies available to members when office bearers fail in their duty.
To summarise this part of the literature review, Fletcher’s 1986 book covers in some depth the issues of principle raised in this thesis and Sievers 2010 edition provides a contemporary case summary. There is no detailed consideration in the literature to the question of why courts are reluctant to intervene in the affairs of unincorporated association and particularly religious ones.
1.9.2 The Anglican Church of Australia The Church of England in Australia was an extension of the Church of England in England until the Australian Church adopted a constitution and became independent in 1961. For its first one hundred and seventy years the Australian Anglican church was a part of the Church of England. The laws applicable to the Church in England were applicable to the Church of England in Australia, with
109 Sally Seivers and Robert Baxt, in Company and Securities Law Journal, (1984) (February) 3. 110 Sally Seivers, ‘Incorporation of Non Profit Associations: The Way Ahead?’ (2000) (August) 18 Company and Securities Law Journal 311. 111 Andrew Twaits, ‘The Duties of Officers and Employees in Non Profit Organisations’ (1998) 10 Bond Law Review 313.
38 modifications dictated by being located in another country.112 The ‘Ecclesiastical Law’ title of Halsbury’s Laws of England 113 provides the most comprehensive summary of the legal position of the Church of England. Direct legal comment on the Australian Anglican Church is found in the ‘Ecclesiastical Law’ title of an Australian and New Zealand Commentary on the 4th edition of Halsbury’s Laws of England.114 There is no update of that Commentary since its publication in 1991. Instead, Halsbury now publishes Halsbury's Laws of Australia,115 and Anglican Church material is subsumed in the Title Religion. A rival encyclopaedia is The Laws of Australia,116 where Religion is dealt with under in Chapter 3 ‘Freedom of Religion & Belief’ of the Title, Civil & Political Rights. Apart from citations to cases considered in this thesis, there is no direct comment on the thesis problem in either of these two encyclopaedia publications.
The legal and constitutional evolution of the Anglican Church in Australia from its Church of England origins in 1788 to its independence from the Church of England in 1962 is covered by several monographs: Clark in 1919 and 1924117 and Giles in 1929.118 The change of status from perceived ‘establishment’ to being just one of a number of churches in the period 1788-1872 is detailed by
112 The 1850 Conference of Australasian Bishops agreed that the Canons of 1604 were: ‘generally binding upon ourselves and the clergy of our respective dioceses. Where they cannot be literally complied with, in consequence of the altered state of circumstances since the enactment of the Canons, we are of opinion that they must be, as far as possible, complied with in substance’. Henry Lowther Clarke Constitutional Church Government’ (SPCK, London: 1924) 97 113 Halsburys Laws of England, vol 14 ‘Ecclesiastical Law’ deals with the Church of England. 114 Anne Robinson, Robert Tong and Justice Peter Young, ‘Ecclesiastical Law’ Australian and New Zealand Commentary on the 4th edition of Halsbury’s Laws of England (Butterworths, Sydney:1991). 115 LexisNexis, Halsbury’s Laws of Australia vol 23 ‘Religion’ [365]. 116 Law Book , The Laws of Australia, vol 21 [21.4] Civil & Political Rights, 3 ‘Freedom of Religion & Belief’. 117 Henry L Clarke, The Constitutions of the General, Provincial and Diocesan Synods of the Church of England in Australia (McCarrion Bird & Co, Melbourne: 1919); Henry L Clarke, Constitutional Church Government, (SPCK, London: 1924). 118 R A Giles, The Constitutional History of the Australian Church, (Skeffington & Son, London:1929).
39 Border.119 While not legally ‘established’, Church of England clergy and people displayed that mind-set in the early decades of the colony120 and this factor coloured the development of arrangements for local decision-making. The ‘establishment’ idea is explored further in Chapter 4. Again, there is no treatment of the thesis problem in these works.
The Anglican Church of Australia became constitutionally independent of the Church of England in 1961. In 1993, John Davis published a detailed and balanced account of the making of the 1961 constitution.121 Davis deals at length with a matter which was a central issue in delaying the adoption of a constitution to make the Australian church independent of the English Church. That issue was the function and composition of an appellate tribunal for the Australian church. Would lawyers be included in the membership with bishops? Would this body deal with discipline and doctrine matters to allow resolution of internal disputes so that resort to the courts would be unnecessary? These issues are examined in Chapter 7.
At the international level, Clarke’s 1924 book collects the national constitutions of the fourteen or so independent Anglican churches
119 Ross Border, Church and State in Australia 1788-1872 (SPCK, London: 1962). Border is critical of the Diocese of Sydney and its leadership for its negative role in the journey to constitutional independence for the Australian Anglican Church. Writing on the meetings preceding the approach to Parliament for the 1866 Act, Border comments on the leadership of the Bishop of Sydney: ‘Bishop Barker was a weak, cautious, and unimaginative administrator and he must be regarded by all constitutional historians as the “tragic bishop” of the Australian Church. On him lies the responsibility for the century-old constitutional divisions in the Australian church which have been its bondage and shame’. 251. 120 Dixon J, took the view that the Church was ‘established’ in the early years of the colony, see Wylde v A-G (NSW) ex rel Ashelford) 1948 78 CLR 224, 284-287. See also frequent references to the assumption of establishment in Peter G Bolt, The Indispensable Parson William Cowper 1778-1858. (Bolt Publishing, Sydney: 2009). 121 John Davis, Australian Anglicans and Their Constitution (Acorn Press, Melbourne: 1993).Diocesan and other histories such as Stephen Judd and Kenneth Cable, Sydney Anglicans (Anglican Information Office, Sydney: 1987) and Bruce Kaye , Anglicanism in Australia (Melbourne University Press, Melbourne: 2002).also deal with these events.
40 found outside England.122 Some seventy years later, in 1998, a comparative work on canon law in the Anglican Communion was published by Professor Norman Doe.123 While Clarke’s work briefly notes constitutional developments in the various national churches, Doe drills down with comparative comment on liturgy, doctrine and practice. Doe has been urging the recognition of an Anglican jurisprudence or ‘common law of the Anglican Communion’.124 That concept has been fostered by a publication distributed to the bishops attending the 2008 Lambeth Conference.125 However, neither Clarke nor Doe reveal any Pan-Anglican structure designed to resolve any internal dispute which might arise within a constituent national church which comprises the Anglican Communion. The 2008 book, distributed to the Lambeth Conference, confirms the consensual nature of the relationship, at the international level, which binds the member national churches of the Anglican Communion to each other.
Lambeth Palace Library holds original correspondence relating to cases concerning the Church of England, the South African cases dealt with in Chapter 5, and Australian cases and events up to 1961.126
122 Clarke, above n 117. Each constitution is accompanied by some notes on the founding of the province and the dioceses which comprised it. That grouping of independent Anglican churches is now known as the Anglican Communion. Henry Lowther Clark (1850-1926) MA Cambridge, became Bishop of Melbourne in 1903 and Archbishop in 1905 following the creation of the Province of Victoria; for more detail see Australian Dictionary of Biography, vol 8 (Melbourne University Press), Melbourne: 1981. 123 Canon Law in the Anglican Communion- A worldwide Perspective (Clarendon Press,Oxford:1998). Doe is Professor of Law at Cardiff Law School, University of Wales and Head of the Institute of Law and Religion. 124 Doe N, 'The contribution of common principles of canon law to ecclesial communion in Anglicanism' (2008) 10 Ecclesiastical Law Journal 71-91. 125 John Rees, The Principles of Canon Law Common to the Churches of the Anglican Communion, (The Anglican Communion Office, London: 2008). 126 For example, the Lambeth Palace Library holds correspondence from the Archbishop of Canterbury to other bishops in the Anglican world. Australian references for the period 1788 to 1961 have been catalogued and published; see Ruth Frappell , Robert Withycombe , et al, Anglicans in the Antipodies: an Indexed Calendar of the Papers and Correspondence of the Archbishops of Canterbury, 1788-1961, Relating to Australia, New Zealand and the Pacific, (Greenwood Press, Westport, Connecticut: 1999).
41
The only other Australian general work on the law and churches is MacFarlane and Fisher’s Churches, Clergy and the Law127 which covers some general principles and issues as indicated by the title. There is a short section with brief, useful comment on the thesis question but no suggestion of a solution to the problems posed by the lack of standing of unincorporated associations.
The one pertinent journal article is that of Justice McPherson128 where he deals with conceptual problems of jurisdiction, rehearses Anglican history, constitutional development, and provides a comparison with the United States of America. Much of the material surveyed is considered in this thesis. Wylde v Attorney-General (NSW) ex rel Ashelford has spawned a doctoral thesis.129 While there is a proper consideration of legal principles, at first instance and on appeal, the thrust of that thesis is an examination of the theological and political motivations of the Relators and Bishop Wylde, the Bishop of Bathurst.
In summary, the unincorporated association literature discloses a gap in the jurisprudence of the question raised by this thesis. The Anglican material, is similarly muted on the problem and its solution.
An outline of the thesis forms the next section.
127 Peter MacFarlane and Simon Fisher, Churches, Clergy and the Law (Federation Press, Sydney: 1996). See [3.6] Judicial intervention in Church Affairs, 68. 128 Bruce M McPherson , 'The Church as Consensual Compact Trust and Corporation' (2001) 74 Australian Law Journal 159-174. The article is an edited version of a paper delivered at a seminar held at St Paul's College, University of Sydney, 11–12 July 1997. See also Reid Mortensen, ‘Church Legal Autonomy’ (1994) 14 Queensland Lawyer 212-226. 129 D Galbraith , Just Enough Religion to Make Us Hate: an Historico-Legal Study of the Red Book Case (unpublished PhD Thesis, UNSW, 1998).
42 1.10 Outline of thesis Chapter One, In the Beginning, outlines the nature of the problem, that is, the reluctance of the courts to intervene in the affairs of an unincorporated association. The research objective is to examine and analyse the leading cases on the enforceability of the terms of constitutions of unincorporated associations, with particular reference to the Anglican Church in New South Wales. My hypothesis is that courts will only intervene if there are rights of a proprietary nature, the existence of a trust, or a clear intention that the members intend the rules of the association to be binding on them as a contract.
The Anglican Church in New South Wales is the paradigm subject of this study because of its size, geographical spread and its Australian existence since European colonisation. It is representative of other unincorporated, large, religious associations. Additionally there is the utility of developing principles to help solve practical problems.
Chapter Two, Unincorporated Associations, considers the law of voluntary associations. This chapter is necessary to lay the jurisprudential foundation for the subject matter of the thesis, namely, unincorporated religious associations. The chapter begins with conceptual issues, moves to the English ‘club cases’ and then the High Court of Australia case of Cameron v Hogan.130 Not all Australian courts have applied Cameron v Hogan. These dissenting cases are examined to see if a principle or concept is articulated on which a judicial policy change could be urged.
Chapter Three, Company Membership and the Statutory Contract, examines the company law concept of the statutory contract and the extent to which members are bound by the constitution of a company. This concept is explored because two constitutions which bind together the several dioceses of the Anglican Church in New South Wales are schedules to Acts of Parliament. Do these enabling
130 (1934) 51 CLR 358.
43 Acts convert the constitutions into statutory contracts similar in fashion to the corporations law statutory contract? If so, are there any limitations?
Consideration is given to the theoretical basis of corporation identity and cases on the statutory contract created by corporations law will be reviewed. Limitations on the reach or extent of the statutory contract are explored. For example, in Wilcox v Kogarah Golf Club Ltd131 Young J held that by-laws made pursuant to a power given in an article were not part of the statutory contract.
In Chapter Four, The Church of England, a number of legal concepts, watershed cases and the legal relationship between that church and her daughter churches in the colonies is considered. The purpose of Chapter 4 is to provide the essential background for understanding the Privy Council appeal cases from South Africa considered in Chapter 5 and the Australian ‘church internal dispute’ cases in Chapter 6. After an introduction, the several sections in the chapter deal with the notion of an ‘established church’ and describe the character of English public religion enshrined in law and expounded in the courts and as it was received in the colonies of the Empire. The changed relationship, in the period under review, between the Church of England and the Church of England in the colonies is examined by asking the question: did the Church of England in the colonies have a special place, akin to establishment, in the constitutional arrangements of a colony which gave the church privileged access to the civil courts or was it just another voluntary association with the same impediments to judicial relief? 132
131 (1996) 14 ACLR 420. 132 Two publications survey the legal foundations of the colonial Church : C C A Pearce , 'Public Religion in the English Colonies' (2000) 5 Ecclesiastical Law Journal 440-454;and George W Addleshaw , 'The Law and Constitution of the Church Overseas' (1948) in E R Morgan and R Lloyd (eds), The Mission of The Anglican Communion, (SPCK & SPG,London:1948).
44 If the colonial Church of England in New South Wales was ‘established’ then the apparatus of the state could be called in aid to resolve colonial Church of England internal church disputes. Jurisdictional hurdles facing other unincorporated associations, such as the requirement for a proprietary right would not be an issue. However, a number of Privy Council appeals from South Africa put the colonial Church of England in the same category as any other unincorporated association and subject to the same laws or lack of laws. The Church of England had the aid of the legislature in New South Wales and Victoria. In Queensland and South Australia, it was entirely by consensual compact. Is there any difference in the binding nature of the arrangements? Scandrett v Dowling 133 provides an answer, at least for New South Wales.
Chapter Five, The Contribution from South Africa, is warranted by several Privy Council appeal cases from South Africa. These cases established legal principles cited in ‘church internal dispute’ cases up to the present day. The fundamental problem with the Letters Patent appointing Church of England bishops in the colonies concerned the disciplinary powers a bishop had over the clergy in his diocese. Internal disputes between bishop and clergy sometimes ended in the diocesan tribunal authorised by the Letters Patent. What was the legal force and effect of the Letters Patent? Were they binding on bishops and clergy? Would a local court enforce the terms of the diocesan constitutional arrangements authorised by the Letters Patent? Could decisions of church tribunals be reviewed by civil courts?
Chapter Six, In Court: Australian Church ‘Internal Dispute’ Cases, will examine the landmark Australian ‘internal dispute church cases’ of MacQueen v Frackleton;134 Wylde v Attorney General (NSW);135
133 (1992) 27 NSWLR 483. 134 (1909) 8 CLR 763. 135 (1948) 78 CLR 224.
45 Scandrett v Dowling;136 Ermogenous v Greek Orthodox Community of South Australia137 and Plenty v Seventh Day Adventist Church of Port Pirie138 to see if coherent legal principles can be enunciated with particular reference to the research objective.
Chapter Seven, Other Avenues to Resolve Internal Disputes, is in two parts. The first part deals with the management of church property and the second part, Anglican procedures to resolve internal disputes. Legislative assistance has been given to most churches in New South Wales to provide a mechanism for management of property. The concept of ‘property’ is examined.to see if there is there is an entry point for a court to intervene to protect a proprietary right? This part also explores ‘purpose trusts’, the use of cy-près schemes and existing legislative provisions to vary trusts to allow solutions to practical presenting problems.
The second part of this chapter considers the final forum for resolution of internal disputes in the Anglican church of Australia. Federation of the Australian colonies in 1901 stimulated the development of a national constitution for the Church of England in Australia to draw together the then 24 (now 23) Australian dioceses and the creation of the Appellate Tribunal. The conversations took sixty years before reaching fruition in 1961. Did Scandrett v Dowling 139 show that the constitutional provisions for solving internal church disputes were a failure?
Chapter Eight, The End of All Things, rehearses that this is not a constitutional history but a focused examination of cases and legislation to test a hypothesis. General conclusions on the hypothesis will be stated before moving to specific conclusions. This
136 (1992) 27 NSWLR 483. 137 (2002) 209 CLR 95. 138 [2009] SASC 10. 139 (1992) 27 NSWLR 483.
46 chapter will conclude by enunciating general principles and outline policy implications to be taken into account by legislators, policy- makers and administrators of the Anglican Church in New South Wales.
1.11 Summary This introductory chapter identifies lacunae in remedies available to members of unincorporated associations who wish to enforce the terms of the constitution of the association by resort to the courts. The non-commercial character of unincorporated associations and the absence of legal personality make the courts reluctant to intervene into their affairs.
There are some limited circumstances where judicial intervention will occur. If a right of a proprietary nature is in issue, or a breach of trust threatened, relief may be sought from the court. In a rare situation, it may be possible to show that the members of the association intended the constitution to bind them contractually rather than just setting out the terms of association to which members consent.
The Anglican Church in New South Wales is a good case study of an unincorporated religious association. The age, size and geographical spread of the Anglican Church throws up a variety of issues which can be found in the other major unincorporated religious associations in Australia. The author’s depth of involvement in the Anglican Church and the challenge issued by Wootten J are motivations for this study. The argument made by Wootten J is that ‘sporting, political and social organisations’ should have the same assistance in resolving disputes as commercial institutions. This important area for common law development may resolve the central question of this thesis.
The thesis topic, Judicial intervention in the affairs of unincorporated religious associations in New South Wales, provides ample scope to
47 analyse cases and legislation. Is it possible to articulate underlying jurisprudence in a modern and meaningful way? In addition, while there are public policy considerations which dictate the present trajectory of the common law, do they remain relevant to the future development of the law of associations? The next chapter reflects on the nature of unincorporated associations and their treatment by the courts.
48 2 UNINCORPORATED ASSOCIATIONS
2.1 Introduction This chapter commences by reflecting on the conceptual and jurisprudential basis of unincorporated associations. The chapter then moves on to consider, in the light of Cameron v Hogan,140 that aspect of the law of voluntary associations which concerns judicial intervention in the affairs of the association. In the cases which follow, we see that not all Australian courts have applied Cameron v Hogan. An examination of the dissenting cases may indicate a principle or concept on which a judicial policy change could be urged.
As this chapter considers the ‘unincorporated voluntary association’, it is worth repeating the description given by Lawton LJ:
[T]wo or more persons bound together for one or more common purposes, not being business purposes, by mutual undertakings each having mutual duties and obligations, in an organisation which has rules which identify in whom control of it and its funds rests and on what terms and which can be joined or left at will.141
Unlike a body corporate, such an association has no separate legal personality with perpetual existence. It cannot sue or be sued or hold property in the name of the association. The members of the committee of management may be exposed to contractual and tortious liability rather than the association. In contract, for example, where the committee has no authority to contract on behalf of members, the committee members may be personally liable. Where authority has been given, a contract may be enforced against the members on the basis of agency. In essence, it is an association based on the consent of its members rather than contractual relationships. There is a fundamental legal problem for the ‘outsider’ who deals with an
140 (1934) 51 CLR 358. 141 Conservative and Unionist Central Office v Burrell [1982] 1 WLR 522, 525.
49 unincorporated association. This is the inability to hold the association, as an entity, legally liable for breaches of law or in contract.
Reference was made in chapter 1, to a number of reasons why the common law has not robustly developed this area of law. They were the ‘social and domestic’ character of associations, the earlier need for a royal licence, and the most commonly cited reason, the lack of ‘legal personality’.
On this last reason, Stoljar challengingly asks ‘why the notion of “legal person” or “legal personality” should have come into use at all’. He harks back to earlier Greek and Roman understandings of ‘person’ which was different in concept from ‘man’ or ‘individual’. ‘Person’ was a man with legal rights and duties. With the revival of interest in Roman law in the sixteenth century, Stoljar says that natural lawyers:
successfully taught that all ‘persons’ were endowed with equal rights and capacities; so much so that in the eighteenth century a person’s political rights became the ‘rights of man’, whereas his private legal rights were seen as emanating from his ‘personality’, with the result that a ‘person’ was no longer just a man with legal rights, he had legal rights because he had personality. It is this inverted, as well as elevated, sense of person that our modern ideas of ‘legal personality’ can be traced back to.142
Fluidity of membership is one other difficulty when considering large religious denominations.143 While there are forms and ceremonies for joining and participation in the life of a church, and constitutions for decision- making, at any one time it may be impossible to provide a definitive list of members.
In Carlton Cricket & Football Social Club v Joseph, Gowans J (in reference to a sporting club) expresses that difficulty in these words:
142 Stoljar, above n 101 1-6. 143 According to the Australian Bureau of Statistics, the 2006 census recorded the religious denomination of the population of Australia as Roman Catholic (25.8%), Anglican (18.7%), Uniting Church (5.7%) and Presbyterian (3%).
50 In a broad sense a sporting club is like a crowd which is interested in some operation or some incident. In ordinary language one says of such a crowd, although it had been seen some hours before, that “crowd is still there”, when in fact the individuals constituting it may be entirely different persons and it is only the object of their interest that has remained the same. Because the object of interest has remained unchanged, that appears to give the crowd a continuing identity which it in fact does not possess.144
This difficulty presents an immense hurdle to obtaining representative orders against an unincorporated association. Knowing exactly who is a member may be one underlying reason why courts are reluctant to intervene in internal church disputes.
Whatever the jurisprudential explanation, Baxt could summarise the judicial approach to unincorporated associations by saying there is an ‘inability or unwillingness of the courts to deal with a legal concept which is clearly out of date and which needs careful consideration by the legislature’.145 Thirty-five years on, little has changed on the legislative front in Australia. To quote Baxt again, ‘the anomalies which flow from the present legal rules applicable to such associations have created difficult and, in many cases, unanswerable problems for the courts’.146 Those problems were gathered by Baxt under the following headings:
(1) The devise of property to unincorporated associations. (2) The ability of associations to contract and hold property. (3) The liability of committee members for contracts and tort. (4) The rights of members of associations to maintain legal action against fellow members and/or committee members.
The thesis question focuses on heading (4): ‘The rights of members of associations to maintain legal action against fellow members and/or committee members’. In other words: can a member of an association obtain the assistance of the court in enforcing the terms of the association’s constitution against other members?
144 [1970] VR 478, 488. 145 Baxt, above n 100, 305. 146 Ibid 305.
51 Associations are governed by their constitutions and membership of an association implies consent to the terms of the constitution. Does this consent amount to a contract so that the terms of the constitution become terms of a contract between members and, consequently, enforceable in a court of law? If consent does not amount to a contract, then a dispute between members will only come before the court if the dispute can be presented as some civil cause of action. If the dispute cannot be characterised as, or based upon, a civil cause of action, then the dispute is 'non-justiciable'. The cases indicate that interference with a proprietary right is usually necessary before a court will intervene in an internal dispute of an association.
The direction of the rest of this chapter is to consider the 19th century English ‘club cases’ and a Scottish church case by way of introduction to the leading Australian High Court case of Cameron v Hogan.147 Post Cameron v Hogan cases are then examined with particular focus on a series of dissenting judgments.
2.2 The club cases The legal basis of jurisdiction to review decisions of voluntary unincorporated associations emerged from 19th century English cases concerning the rights of members of clubs. A central notion of the English gentleman’s club was that club property was owned by all the members for the time being so that at any time, the members may decide to disband the club and distribute all the assets between themselves. Thus the courts were invited to intervene in internal disputes to ensure that property interests of members were not diminished by expulsion, suspension or breach of club rules. Four ‘Club’ cases, Lloyd v Loaring (1802); Fisher v Keane (1878); Labouchere v Earl of Wharncliff (1879); Dawkins v Antrobus (1881); and one early ‘church internal dispute’ case Forbes v Eden (1867) are considered by way of illustration.
147 (1934) 51 CLR 358.
52
The early case of Lloyd v Loaring148 concerned some members of a Lodge of Freemasons and a dispute over property when two Lodges agreed to unite. The dresses, decorations, books and papers of one Lodge were to be delivered to the other Lodge. Dissident members, pretending they had authority, took possession of the goods. The assistance of the court was sought to have the chattels returned. Initially, the members of the Lodge sought an injunction to prevent the defendants from disposing of the goods unlawfully obtained. Objection was taken to the standing of the plaintiffs as they had ‘no corporate character’. In response, counsel for the plaintiffs replied that ‘[s]ocieties of this description are entitled to the protection of the Legislature and are recognised in the Act of Parliament against seditious meetings’. This was a reference to the Unlawful Societies Act 1799 (UK). Further, they argued:
This is a partnership. As to the objection that these persons have not a legal, known, character, entitling them to sue, not being incorporated, they do not sue as a corporation, or affect a corporate character. They sue as a voluntary society, composed of individual members. And in their individual capacity, on behalf of themselves and all the other members. What has that appearance is merely description; and to shew, that they had complied with the Act of Parliament.149
But, Lord Chancellor Eldon, ruling on the demurrer of the defendants said,
But I am alarmed at the notion that these voluntary associations are to be permitted to state all their laws, forms and constitutions upon the Record and then to tell the Court they are individuals. Then what sort of a partnership is this; for it is now admitted to be a partnership? The bill states, that they subsist under a charter, granted by persons, who are now dead; and therefore, if this charter cannot be produced, the society is gone. Upon principles of policy the Courts of this country do not sit to determine upon charters granted by persons
148 Lloyd v Loaring (1802) 6 Vesty 773; 31 ER 1302. 149 Ibid 1303.
53 who have not the prerogative to grant charters. I do not think the court ought to permit persons, who can only sue as partners, to sue in a corporate character; and that is the effect of this bill.150
Leave was given to amend the bill on the ground that where individuals forming a voluntary society may as individuals, not as a voluntary society, have a joint interest in a chattel, the court will take notice of that interest. As Eldon put it, ‘Suppose, Mr. Worseley’s silver cup was taken away from the Middle Temple: the society must some way or other be permitted to sue; and this is really the same’.151 It was the property aspect pursued as individuals which provided the jurisdiction, not ‘the concerns of an association, which in law has no existence’.152
In Fisher v Keane,153 Major Louis Walter Fisher had been a member of the Army and Navy Club, Pall Mall for more than 20 years. Fisher was expelled from the club for drunken behaviour after dinner one evening. The Club Committee examined two members of the club who saw the incident in the Billiard Room and, as a result, resolved to suspend the plaintiff from the club. No notice was given to the plaintiff, nor any opportunity offered to him to explain his conduct.
The plaintiff alleged that the rules of the club had not been properly followed in expelling him. The second ground argued by the plaintiff was that no notice of the committee meeting had been given to him, denying him an opportunity to explain his conduct. Counsel for the club argued that all that was required on the part of the Committee was that they should exercise their power in a bona fide manner and, provided that there is no bias with the exercise of this authority, the Court could not interfere with the decision.
150 Ibid1304. 151 Ibid 1305. 152 Ibid 1305. 153 (1878) 11 Ch D 353.
54 Jessel MR examined the rules of the club and concluded that the expulsion meeting was not properly constituted to consider the question and, accordingly, their decision was invalid.
As to the second ground of complaint:
After all, the question whether or not this is an offence of so grave a character as, in the interests of the club, to warrant his immediate expulsion, should be decided by the club, or the committee of the club, having regard to everything that occurred … They ought not, as I understand it, according to the ordinary rules by which justice should be administered by committees of clubs, or by any other body of persons who decide upon the conduct of others, to blast a man's reputation for ever - perhaps to ruin his prospects for life, without giving him an opportunity of either defending or palliating his conduct. In my opinion, upon this ground also the committee have not acted properly or fairly. I have no doubt they acted according to the best of their judgment and with the utmost desire to do what was right; but I think they have made a mistake, and that the right course is to grant an injunction, so that they may have an opportunity of reconsidering the matter, as I trust they will do, in a fair and impartial spirit.154
In Labouchere v Earl of Wharncliffe,155 Labouchere and Levy Lawson, members of the Beefsteak Club were involved in an altercation. The committee of the club called upon both members to resign which they refused to do and, consequently, both were expelled from the club. Lawson subsequently resigned. Labouchere sought to restrain the club from preventing him from enjoying membership.
The plaintiff objected to the way the committee handled his case. Jessell MR said that the rules required a fair enquiry into the truth of the alleged facts. That enquiry should include notice to the member whose conduct is being enquired into, so that the member can state his case. The plaintiff did attend a meeting but was not informed that the meeting would be investigating the allegations:
154 Ibid 362 (emphasis added). 155 (1879) 13 Ch D 346.
55 In a case where a decision depended upon their opinion - in other words, upon their judgment - it was most important that the materials on which that judgment was formed should be accurately ascertained; and, of course, that could only be done by a proper investigation, by giving due notice to the accused and by taking - I do not say legal evidence, or that evidence not strictly legal might not be admissible - but by taking evidence on the question of fact before them, and satisfying themselves as to the truth. They could then form their opinion. That was not done in the present case: and, in my view, the committee have not followed in substance their own rule at all. The judgment of a committee, with the facts of a case fully before them, might be right or it might be wrong. With that the Court has nothing to do. If, having given the accused fair notice, and made due inquiry, the committee came to the conclusion that the conduct of one of the members of the club was injurious to its welfare and interests, no judicial tribunal could interfere with any consequences which might arise from an opinion thus fairly formed.156
Inadequate notice was given at the meeting. The meeting was not properly called and insufficient members voted in favour of the expulsion. An order was made in favour of the plaintiff, restraining the defendants from interfering with enjoyment by the plaintiff, as a member of the club, of the use and benefits of the club.
In Dawkins v Antrobus,157 Colonel Dawkins sought a declaration against the trustees and committee of the Travellers' Club, claiming that a resolution expelling him from the club was invalid and also seeking an injunction to restrain the defendants from excluding him from the club.
The club rules vested in the committee the responsibility for conducting the club. The plaintiff caused to be printed and circulated a pamphlet entitled ‘A Farce and a Villainy - Heads I Win, Tails you Lose’ in which the conduct of Lieutenant-General Stephenson, who was also a member of the club, was severely reflected on. The plaintiff sent the
156 Ibid 352 (emphasis added). 157 (1881) 17 Ch D 615. See also JRS Forbes, Justice in Tribunals (The Federation Press, 3rd ed, Sydney: 2002) 26, and n 77 for citations of other cases involving the litigious Colonel Dawkins.
56 pamphlet by post to Lieutenant-General Stephenson at his official address, the Guards' Orderly Room at the Horse Guards.
The matter came on for hearing before Jessel MR, who said it was his ‘duty to construe the rules fairly and in the same way as I should any other contract’. He held that ‘the allegation of malice’ was not sufficiently made out and dismissed the action. The plaintiff appealed.
In the Court of Appeal, James LJ, affirmed the decision of the Master of the Rolls and said, ‘We have no right to sit as a Court of Appeal upon the decision of the members of a club duly assembled. All we have to consider is whether the notice was or was not given according to the proper rules ... ’.158
Brett LJ said the only question was whether the decision was made bona fide and concluded that there was no malice or want of good faith in the committee. Cotton LJ followed similar reasoning and came to similar conclusions:
First, I will consider shortly whether this rule is a valid and binding rule … In my opinion the club had power to pass the rule, on which the committee and general meeting acted … The substantial question remains, namely, has it been made out that what was done was not in the fair exercise of the power given by the rule, and that it was done, not bona fide or honestly, but maliciously, or that there was a denial of nature justice? ... I do not consider that, but in my opinion there is no ground at all for asking the Court to interfere with the decision arrived at by those bodies.159
These four ‘club cases’ illustrate the varied 19th century approach by the court to intervention in internal disputes in unincorporated associations. The Lloyd v Loaring intervention was based on property, that is, members’ interest in club chattels should be protected. Relief was given to allow due observance of proper process under the rules of the club in both Fisher v Keane and
158 Dawkins v Antrobus (1881) 17 Ch D 615, 628. 159 Ibid 634-637.
57 Labouchere v Earl of Wharncliffe. But, having been satisfied that the club disciplines rules were applied fairly, the court in Dawkins v Antrobus declined to interfere. These selected ‘club’ cases indicate that, apart from seeing that ‘club rules’ have been fairly applied, there is no general ground for court supervision of, or review of, internal disciplinary decisions of unincorporated associations. However, if the unincorporated association has communal property held for the benefit of members, a court may provide a remedy to ensure that members’ rights to that property are not diminished.
2.3 Forbes v Eden (a ‘church internal dispute’ case) Would there be any difference in principle or result if the internal dispute concerned a church? In Forbes v Eden,160 the Rev George Hay Forbes was a Minister of the Scotch Episcopal Church instituted to the pastoral charge of Burntisland in Fifeshire where, out of his own private funds, he built a house, a school and part of a chapel. At the time of his ordination, he subscribed to the Articles of Religion161 of 1562 and the canons of the Episcopal Church in Scotland, drawn up in 1838. Those canons had initially been drawn up in 1811, revised in 1828, revised further in 1829 and in 1838. They were further revised by a General Synod of the Church in 1863.
Forbes alleged that the 1863 amendments were ultra vires the General Synod. He also alleged that he could not conscientiously obey the new code of 1863 and was thus in risk of penalties, even, potentially, loss of his office. No actual loss had occurred at the time of the hearing, with one exception. That exception related to the refusal to license his curate. The fact that Forbes had not sustained any real damage flowing directly out of the canons of 1863 meant that the court had no grounds to consider whether the General Synod had acted ultra vires.
160 (1867) LR 1 Sc & Div 568. 161 The Articles of Religion agreed upon by the Archbishops, Bishops, and the whole clergy of the Provinces of Canterbury and York, London, 1562, generally referred to as the Thirty Nine Articles and printed and bound with the (1662) Book of Common Prayer.
58 The Lord Chancellor (Lord Chelmsford) said:
The Court had, therefore, to consider whether it could properly entertain the question of the reduction of the canons upon the ground that they were a departure from the doctrine and discipline of the Scotch Episcopal Church at the time the Appellant became one of its ministers. Now, this it refused to do, as it was a mere abstract question involving religious dogmas and resulting in no civil consequences which could justify the interposition of a Civil Court.162
The appeal could have been dismissed quickly because Forbes had sustained no injury recognised by a civil court. However, as Forbes had appeared in person and ‘so earnestly and strongly pressed upon your Lordship's attention’,163 some further comment was made about his assertions.
The canons of 1838 did not appear or should not be regarded as a contract between the members of the Scotch Episcopal Church at the time the appellant (Forbes) was ordained to the ministry. Those canons were mostly directed to the regulation of order and discipline. The essence of the changes objected to by Forbes centred upon the primacy given to the 1662 Book of Common Prayer and particularly the holy communion services as against the Scotch communion service which, until 1863, had been regarded as the authorised service for the Episcopal Church in Scotland.
Lord Cranworth rehearsed certain well-established principles of law and said:
Save for the due disposal and administration of property, there is no authority in the Courts either of England or Scotland to take cognizance of the rules of a voluntary society entered into merely for the regulation of its own affairs.
If funds are settled to be disposed of amongst members of a voluntary association according to their rules and regulations, the Court must necessarily
162 Forbes v Eden (1867) LR 1 Sc & Div 568, 575. 163 Ibid 576.
59 take cognizance of those rules and regulations for the purpose of satisfying itself as to who is entitled to the funds. So, likewise, if the rules of a religious association prescribe who shall be entitled to occupy a house, or to have the use of a chapel or other building.
This is the principle on which the Courts have administered funds held in trust for dissenting bodies. There is no direct power in the courts to decide whether A or B holds a particular station according to the rules of a voluntary association. But if a fund held in trust has to be paid over to the person who, according to the rules of the society, fills that character, then the court must make itself master of the questions necessary to enable it to decide whether A or B is the party so entitled.164
There must be a property interest to give jurisdiction or, if a trust question arises, the court will see to its due administration. Thus, although there is no direct power in the courts to decide whether one person or another person holds a particular office according to the rules of a voluntary association, if there is a question as to the proper beneficiary of a trust fund, the court must make itself master of the questions necessary to enable it to decide.
The appellant, Forbes, contended that he was ordained under the canons of 1838 and was entitled to exercise the functions of a clergyman of the Episcopal Church of Scotland according to the doctrine and practice established by those canons. His complaint was that the new canons of 1863 imposed upon him different doctrines and practices from those he bound himself to on his ordination.
Cranworth LC said that even if the General Synod of 1863 had no power to make the alterations complained of, that, in itself, gave no jurisdiction to the court. In other words, there was no jurisdiction to examine the rules of a voluntary society except for some collateral purpose. For example, if the holding of an office in a voluntary association carries with it some pecuniary benefit, or the use of 'a
164 Ibid 581.
60 house or land or a chapel or a school' then the court may have a duty to enquire as to the proceedings to fill the office. Also, in this case, if there was some ‘violation of any legal right’ the court would have jurisdiction to inquire into the power of the General Synod to frame the canons of 1863, but there was no such violation.
On this basis, if a member is dissatisfied with the proceedings of the body with which he or she is connected, the only remedy is to withdraw from it.
In concurring with the other two members of the bench, Lord Colonsay said that a court: will not interfere with the rules of a voluntary association unless to protect some civil right or interest which is said to be infringed by their operation. Least of all, will it enter into questions of disputed doctrine, when not necessary to do so in reference to civil interests.165
The ‘church’ context of Forbes v Eden made no difference to the settled principles of law to be applied. The Scottish Episcopal Church was treated in the same fashion as any other voluntary association.166 The other 19th century case often cited in this connection is Rigby v Connel,167 where a trade union committee disciplined a member. The reluctance of courts to adjudicate associations disputes was no less evident in 1880 in relation to trade union disputes. The same principles were applied. Jessel MR said:
[W]hat is the jurisdiction of a court of equity as regards interfering at the instance of a member of a society to prevent his being improperly expelled therefrom? I have no doubt whatever that the foundation of the jurisdiction is the right of property vested in the member of the society, and of which he is unjustly deprived by such unlawful expulsion. There is no such jurisdiction in any of the Queen’s courts to decide upon the rights of persons to associate together when
165 Ibid 588. 166 It should be noted that the Scottish Episcopal Church is not the established church of Scotland; that distinction belongs to the (Presbyterian) Church of Scotland. 167 (1880) LR 14 Ch D 482.
61 the association possesses no property. Persons, and many persons, do associate together without any property in common at all. A dozen people may agree to meet and to play whist at each other’s houses for a certain period, and if eleven of them refuse to associate with the twelfth any longer, I am not aware that there is any jurisdiction in any court of justice in this country to interfere. Or a dozen or a hundred scientific men may agree with each other in the same way to meet alternately at each other’s houses … but if the association has no property, and takes no subscriptions from its members, I cannot imagine that any court of justice could interfere with such an association if some of the members declined to associate with some of the others.168
The circumstances under which a court will intervene in trade union disputes are beyond the scope of this thesis. In England as well as in Australia, labour law legislation has moved this question out of the purely common law realm.
2.4 Cameron v Hogan Will the rules of an unincorporated association be construed as a legally enforceable contract between members? Or, in the words of Baxt, what are ‘the rights of members of associations to maintain legal action against fellow members and/or committee members?’ 169
The leading Australian case is Cameron v Hogan.170 Hogan was the Premier of the State of Victoria and leader of the State Parliamentary Labor Party at the time of a general election in May 1932. In May and June 1931, Hogan had attended a conference of the Premiers of all the States and the Commonwealth Government where certain financial proposals known as the Premiers Plan were agreed upon. A Federal Conference of the Australian Labor Party (‘ALP’)resolved that they were opposed to the Premiers Plan and further, any member assisting or supporting the Premiers Plan would cease to be a member of the Australian Labor Party. In January 1932, the ALP
168 Ibid 487 (emphasis added). 169 Baxt, above n 100, 305. 170 (1934) 51 CLR 358.
62 Annual Conference decided to expel any member who supported the Premiers Plan.
In April 1932, the Central Executive of the Victorian Australian Labor Party decided not to endorse Hogan as a Labor candidate for the parliamentary elections on 14 May 1932. Hogan was elected to the Legislative Assembly but because of his expulsion from the ALP, was not eligible for reappointment to leadership of the State Parliamentary Labor Party.
Hogan commenced an action in the Victorian Supreme Court against Cameron, the President of the ALP and other party officials for a declaration that he was still a member of the association, an injunction to restrain his exclusion from the association and damages.
The action was heard by Gavan Duffy CJ, who held that the correct procedure had not been followed and this amounted to an actionable breach of contract between Hogan and the defendants. Judgment was entered for Hogan in the sum of one shilling damages and costs.
It was further held that a declaration or an injunction was not available as Hogan had no proprietary interest in the property of the Association. Cameron appealed.
In the High Court the Appellant (Cameron) argued: 1. The rules of the Association created no contract between the members. 2. The Plaintiff had no proprietary interest in any of the assets of the Association. 3. The rules of the Association were not intended to create legal rights. 4. The rules were too vague to be enforceable as a contract even if it was intended that they be a contract.
63 5. There was no case to date, in which damages have been recovered against a club by one of its members.
The Respondent, Hogan, submitted that the Court had jurisdiction to interfere in the business of the association in this type of matter. The Respondent/Plaintiff had a remedy in damages, because, on the winding up of the association, the property of the association would have been distributed among the members, including the Respondent/Plaintiff.
In their joint judgment, Rich, Dixon, Evatt and McTiernan JJ said:
There are, however, reasons which justify the statement that, at common law as well as in equity, no actionable breach of contract was committed by an unauthorized resolution expelling a member of a voluntary association, or by the failure on the part of its officers to observe the rules regulating its affairs, unless the members enjoyed under them some civil right of a proprietary nature. As a generalization it expresses the result produced by the application of a number of independent legal principles: it is not in itself the enunciation or explanation of a rule or rules of the common law. One reason which must contribute in a great degree to produce the result is the general character of the voluntary associations which are likely to be formed without property and without giving to their members any civil right of a proprietary nature. They are for the most part bodies of persons who have combined to further some common end or interest, which is social, sporting, political, scientific, religious, artistic or humanitarian in character, or otherwise stands apart from private gain and material advantage. Such associations are established upon a consensual basis but, unless there were some clear positive indication that the members contemplated the creation of legal relations inter se, the rules adopted for the governance would not be treated as amounting to an enforceable contract.171 [emphasis added].
The judges noted the procedural difficulty in joining all the members of a large voluntary association which may not be overcome by representative party orders.
171 Ibid 370.
64 Even if the procedural difficulties were overcome, who would be legally responsible for a breach of contract? If a member's expulsion was procedurally valid, then there would be no breach of the rules and membership would remain unaffected and accordingly, damages would not be available as a remedy.
If the complaint is not of an invalid expulsion, but some other failure to observe the rules, then it would be necessary for the complaining member ‘to show that the rules were intended to confer upon him a contractual right to the performance of the particular duty’172 on which he relies. Were the rules relating to the selection of candidates intended to operate as a contract? In a telling passage of the joint judgment, the answer to the thesis question was given in these words,
Hitherto rules made by a political or like organization for the regulation of its affairs and the conduct of its activities have never been understood as imposing contractual duties upon its officers or its members. Such matters are naturally regarded as of domestic concern. The rules are intended to be enforced by the authorities appointed under them. In adopting them, the members ought not to be presumed to contemplate the creation of enforceable legal rights and duties so that every departure exposes the officer or member concerned to a civil sanction.173
The final issue for consideration by the High Court was the refusal by Gavan Duffy CJ to grant an injunction or a declaration of right. Jurisdiction to grant an injunction is based on ‘the existence of some civil right of a proprietary nature proper to be protected.’ Although the association had property under the control of the Central Executive or various branches, the Court found that the Respondent, Hogan, had no interest in that property ‘capable of enjoyment’. His membership of the Association carried with it ‘no tangible or practical proprietary right’. So Hogan had
172 Ibid 373. 173 Ibid 376.
65 no civil right or proprietary interest suitable for protection by injunction. Further, such a case is not one for a declaration of right. The basis of ascertainable and enforceable legal right is lacking. The policy of the law is against interference in the affairs of voluntary associations which do not confer upon members civil rights susceptible of private enjoyment.174 (emphasis added).
In a separate judgment, Starke J said that Hogan had to establish ‘some breach of contract with him, or some interference with his proprietary rights or interest’ if he wanted ‘relief at law or in equity’. The general rule was that ‘courts do not interfere in the contentions or quarrels of political parties, or indeed, in the internal affairs of any voluntary association, society or club.175
Starke J, at 384, cited with approval, Murdison v Scottish Football Union: 176
Agreements to associate for purposes of recreation or an agreement to associate for scientific or philanthropic or social or religious purposes, are not agreements which Courts of law can enforce. They are entirely personal. Therefore, in order to establish a civil wrong from the refusal to carry out such an agreement, if it can be inferred that any such agreement was made, it is necessary to see that the pursuer has suffered some practical injury, either in his reputation or in his property.
In relation to contractual rights, Starke J was clear:
The rules of a voluntary association organized for political purposes are not agreements enforceable at law, or in other words, contracts. Members of such associations who have grievances must resort to the remedies and the redress afforded them by the rules of their associations, and not to the Courts of law.177
174 Ibid 378. 175 Ibid 383. 176 Ibid 466, 467. 177 Ibid 384.
66 Hogan's claim for a declaration that his non-endorsement by the Australian Labor Party was wrongful, was dismissed as ‘wholly untenable’. The issue of endorsement was not a contractual right, enforceable in a court. Hogan's remedy had to be found in rules of the ALP and the appropriate bodies set up under those rules for that purpose.
What emerges from Cameron v Hogan is:-
1. When a member of a voluntary association alleges a breach of rules, the remedy must be found within the rules of the association and any internal bodies set up to deal with breaches. 2. The courts will only intervene if the member enjoyed some civil right of a proprietary nature which was interfered with. 3. Unless it is very clear that the rules are intended to create a legal, enforceable contract binding on the members, such rules will be treated as a consensual agreement between the members.
What then is a ‘consensual compact’, an agreement which is not intended to create legal obligations? The nature of a consensual compact has been described in a recent case as rules or procedures which, construed in their context and with regard to their purpose, can be seen as adopted by the members of a non-profit organisation in order to express their shared ideals, purposes or beliefs rather than in order to create contractually binding rights and duties enforceable in a court of law.178
Although this definition is given in the context of a sporting association, the description can readily be pressed into service for other non-profit organisations. The term is commonly found in church dispute cases to describe the rules governing membership rights and obligations.
178 Carter v New South Wales Netball Association [2004] NSWSC 737 [86].
67 2.5 Lee v The Showmen’s Guild of Great Britain While Cameron v Hogan established Australian precedent, Lee v The Showman’s Guild of Great Britain179 did likewise in England. Frank Lee was a member of the Yorkshire Section of the Showman’s Guild of Great Britain. His show consisted of a roundabout known as a ‘Noah’s Ark’. Another member of the same show, William Shaw, also had a Noah’s Ark and for the years 1938-1943 occupied site No 2 at the Annual Bradford Summer Fair. Shaw sublet this site in 1944 but did not use it in 1945 as his business had been affected by war conditions.
In 1945, the plaintiff, Lee, applied for a site at the Summer Fair and was allocated Site No 2. Lee used the site again in 1946. There was no fair in 1947.
In 1947, Shaw successfully applied to return to Site No 2. The plaintiff lodged a complaint against this decision. In 1948, both the plaintiff and Shaw arrived at the site but after discussion, the plaintiff allowed Shaw to occupy the site without prejudice to his own claim. The next year, 1949, the plaintiff had Site No 2 allocated to him and he arrived and occupied it with his Noah’s Ark. Shaw lodged a complaint with the Guild, calling in aid various rules of the Guild. The Yorkshire Section Committee heard the dispute and decided in favour of Shaw and imposed a fine of One hundred pounds on the plaintiff.
The plaintiff applied to the court for a declaration that the decision to refer Shaw’s claim was ultra vires and void, as was the decision to fine him and subsequently expel him. Ormerod J granted injunctions preventing the Guild from excluding the Plaintiff from the premises of the Guild and from exercising his rights as a member. He also held that the fines and expulsion were ultra vires and void.
179 [1952] 2QB 329.
68 In the Court of Appeal, Somervell LJ referred to Dawkins v Antrobus180 and noted the danger of courts acting as courts of appeal from decisions of members of clubs and the importance of observing the principles of natural justice.
This is a difficult and important branch of the law. I am alive, I hope, to the important and necessary work done by domestic tribunals, normally with care, skill and fairness. I am also alive to the principle, reiterated more than once, that this court cannot be made a court of appeal from decisions of such tribunals. On the other hand, a power of expelling a member is a drastic power which in many cases, as here, may affect the plaintiff's livelihood or reputation. There is, in my opinion, a distinction between cases where the decision challenged is under the rules based on the opinion of a committee on a matter which is primarily one of opinion and those cases, such as the present, where the decision is, or should be, based primarily on the legal construction of words in a rule. The principles laid down in the former class of case are sufficient for the plaintiff here. I wish, however, to make it clear that, in my opinion, the principles laid down in those cases are not necessarily to be regarded as setting the limit to the jurisdiction of this court where the issue is one primarily of construction.
Denning LJ said that the jurisdiction of a domestic tribunal must be found in a contract express or implied between the members. Apart from the courts of the land, ‘no set of men can sit in judgment on their fellows except so far as Parliament authorises it or the parties agree to it’.181 While there is precedent that courts will only intervene in association cases if there is a need to protect rights of property, the power of the court is wider than this and extends to protect rights of contract.
2.6 Post Cameron v Hogan Developments While the High Court of Australia has not directly revisited Cameron v Hogan, a number of Australian cases have found jurisdiction to
180 (1881) 17 Ch D 615. 181 Lee v The Showmen's Guild of Great Britain [1952] 2QB 329, 341. For a recent English case on an internal dispute in a religious association see Rai v The Charity Commission of England and Wales [2012] EWHC (Ch) 1111.
69 intervene in the affairs of an association, despite there being no strict basis for jurisdiction as enunciated in Cameron v Hogan.
In Stevens v Keogh, 182 the High Court upheld a decision of the NSW Supreme Court that a payment by the Police Association out of its funds, for costs incurred by one of its members who brought an unsuccessful action for libel against the Commissioner for Police and a newspaper, was within the powers of the Association.
The plaintiff, Stevens, who was also a member of the Association, sought a declaration that the trustees and office bearers of the Association had acted ultra vires in paying the legal costs of another member to purse the libel action. He also asked for an order that the monies be repaid. Roper J refused to grant the declaration.
In the High Court, the majority, Starke, Dixon, McTiernan and Williams JJ, after examining the rules of the Association, held that the payment was not beyond the powers of the Police Association. However, of the majority, only Williams J referred to Cameron v Hogan, saying that the plaintiff had ‘a right of a proprietary nature in the funds whilst the Association is a going concern.’ Although Starke, Dixon and McTiernan JJ had sat in Cameron v Hogan in 1934 it was not cited by them.
Latham CJ,183 applied Cameron v Hogan to the effect that the plaintiff could not enforce the rules of the Association on a contractual basis and as the plaintiff had no right of property, the Court had no justification for intervention. He held that the rules did not justify the payments made by the Executive of the Association and accordingly allowed the appeal.
182 (1946) 73 CLR 1. 183 Ibid 11.
70 In Harrison v Hearn,184 Helsham J, on the application of a student of Macquarie University, (a) granted a declaration that the Student Council of the University could not act upon certain resolutions passed at a meeting of the Council; and (b) granted an injunction to prevent the Student Council so acting.
Section 10 of the Equity Act 1901(NSW) gave the court jurisdiction to declare the interests, powers, rights and liabilities or duties of any person arising under, inter alia, the constitution of any unincorporated association.
In respect to the injunction, Helsham J had ‘much greater difficulty.’ He had to consider the principles relating to the ability of a member of a voluntary unincorporated association to obtain an injunction to restrain the executive of such a body from acting beyond power. A member has such a right if there is a proprietary right in the property of the association, or if the right can be found in a contract which binds members of the association and thus, binds the executive not to act in excess of the powers given to them.
Helsham J acknowledged that no individual proprietary rights were involved and the relationship between individual students and the Student Council was not founded on contract.
Against the usual way in which the courts have approached this issue, Helsham J found:- i) The Student Council did not have a limited power to act in any way. Who could prevent an abuse of power if a student could not? ii) The Student Council is, in substance, the executive organ of the student body of the university as a whole.
184 Harrison v Hearn (1972) 1 NSWLR 428.
71 iii) The students of the university have the ultimate control of the Student Council and thus, the situation is ‘analogous to that of a member seeking to restrain ultra vires activities of the executive of his voluntary unincorporated association.’185
Accordingly, Helsham J held that the Student Council was able to be restrained in the use of its funds by a member of the student body of the university.
Requirements of proprietary or contractual rights were not the real basis of the decision by Street J, in Flynn v University of Sydney.186 There, a rowdy meeting of the University Union passed resolutions to amalgamate with the Women’s Union. Declarations were sought to render the resolutions void because of the riotous nature of the meeting. On the facts, there was sufficient clarity when the motions were moved and voted on, so the relief sought was not granted.
It is in the next case that the most trenchant criticism of Cameron v Hogan is found. In McKinnon v Grogan,187 North Sydney District Rugby League Football Club was an unincorporated voluntary association whose object was the promotion and management of rugby league football in the North Sydney district. It was one of twelve metropolitan district clubs with similar objects. Those clubs made up the NSW Rugby Football League.
The constitution and by-laws of the League made it clear that the League was able to require a constituent club to amend that club’s by- laws. At a Special General Meeting of the General Committee of the League, resolutions amending the by-laws of the League were passed. The validity of the meeting was challenged.
185 Ibid 436 186 [1971] 1 NSWLR 857. 187 [1974] 1 NSWLR 295.
72 The defendants cited Cameron v Hogan to argue that where the executive of a voluntary association did not observe the rules governing the affairs of the association, there was no breach of contract actionable either at common law or in equity, unless the member complaining has, under the rules, some civil right of a proprietary nature.
Wootten J observed that the decision in Cameron v Hogan related to an area of human affairs, ‘which has changed and continues to change greatly in social significance, and in which there has been a great deal of judicial development of the law’.188 In respect to judicial development, he noted a comment by Denning MR, discarding an earlier statement with the exclamation, ‘But that was seventeen years ago’.189 On Wootten J’s calculation, Cameron v Hogan ‘was forty years ago’190 and in that period ‘has been more frequently distinguished or ignored than it has been applied, simply because its application in full rigour has been increasingly out of tune with the felt needs of the time’.191
The real issue for Wootten J ‘is one of judicial policy - whether or not the courts are to accept or reject responsibility for performing ordinary judicial functions in relation to the important voluntary associations of a non-business character that are important today.’192 In a pithy statement, Wootten J summed up community expectations of how the courts should uphold obligations voluntarily entered into in a non- commercial association:
I consider that citizens are entitled to look to the courts for the same assistance in resolving disputes about the conduct of sporting, political and social organisations as they can expect in relation to commercial institutions. If it is
188 Ibid 297. 189 Ibid 297. 190 Ibid 297. 191 Ibid 297. 192 Ibid 298.
73 not forthcoming, a vast and growing sector of the lives of people in the affluent society will be a legal no man's land, in which disputes are settled not in accordance with justice and the fulfilment of deliberately undertaken obligations, but by deceit, craftiness, arrogant disregard of rights and other means which poison the institutions in which they exist, and destroy trust between members.
In my opinion, people who join the league and subscribe to its constitution and by-laws should be taken to intend to be bound by them and should be entitled to invoke the courts in appropriate circumstances to have their disputes settled. What limitations, if any, should be placed on this right is, no doubt, something to be worked out case by case. Suffice to say that I can see no reason why the parties should not be able to seek the declarations they claim in this case.193 [emphasis added].
In a short paragraph,194 Wootten J insists that the question is to be ‘squarely faced’ and not answered by a conceptual approach which gives ‘a misleading impression of a result inevitable in legal principle’. The difficulties created by a judicial policy of non-intervention ‘are capable of solution if a policy of intervention is adopted’.
In Finlayson v Carr,195 the plaintiff sought a declaration that the Australian Jockey Club was not empowered to create a class of associate member. The club is an unincorporated voluntary association formed in 1842 and by the Australian Jockey Club Act 1873 (NSW), it was given certain statutory powers and duties.
The defendant relied upon Cameron v Hogan where it was held that the right of a member of a voluntary association to obtain relief regarding a breach of its rules depended upon the member having a proprietary right. Alternatively, the plaintiff could succeed if it could be shown that the rules of the club create legal relations between the members and should therefore be treated as amounting to an
193 Ibid 298. 194 Ibid 298B. 195 [1978] 1 NSWLR 567.
74 enforceable contract. The court held that the plaintiff had standing to claim relief. The rules of the club should be regarded as creating legal relations between members amounting to an enforceable contract.
In Dixon v Australian Society of Accountants,196 a member of the Australian Society of Accountants was dealt with by the Disciplinary Committee of that Society. The accountant, Dixon, was found guilty on the two charges and was censured, fined and made to pay the costs of the proceedings. Dixon sought a declaration that the findings of the Disciplinary Committee of the Society were unlawful and void. He contended that the material before the Disciplinary Committee was not capable of supporting a finding of professional misconduct, especially as the Disciplinary Committee had declined to give reasons at the time they published its decision.
The plaintiff based his claim for a declaration on the principle that a Court will overturn the decision of a (domestic) tribunal where that tribunal made the decision on the basis of material which was inadequate. The defendant argued that a Court has no jurisdiction to interfere in the decision of a domestic tribunal such as the Disciplinary Committee ‘unless the decision affects property rights or the decision is in breach of contract, or the decision significantly affects the plaintiff’s right to work’.197 The defendant relied upon Cameron v Hogan.
Miles CJ noted that Cameron v Hogan had been distinguished on occasions in recent years, for example, Plenty v Seventh Day Adventist Church of Port Pirie,198 McKinnon v Grogan, 199 and Finlayson v Carr.200
196 (1989) 95 FLR 231. 197 Ibid 235. 198 (1986) 95 SASR 121. 199 [1974] 1 NSWLR 295. 200 [1978] 1 NSWLR 567.
75
There was discussion about Lee v Showmen’s Guild of Great Britain,201 where the judge discussed the powers of domestic tribunals which were established by agreement among members, and contrasted these with statutory tribunals which derived powers and duties from legislation. The judge declined to be limited by Cameron v Hogan.
In Plenty v Seventh Day Adventist Church of Port Pirie,202 the South Australian Supreme Court declined to grant an injunction against the Church which had terminated membership of two of its members. The Church was an unincorporated voluntary association.
The Church argued that the rules set out in the Seventh Day Adventist Church manual did not operate to create enforceable contractual rights and duties between members And also, that the rules did not give to the plaintiffs any proprietary right or interest in the property of the defendant. Bollen J, reluctantly applied Cameron v Hogan.203
On appeal, the Full Court reversed this decision. Jacobs J found ‘a clear and positive indication that the members contemplated the creation of legal relations’.204 Matheson J, after an exhaustive review of the authorities, found that the plaintiffs ‘might ultimately succeed at trial under one or more headings’. Those headings were: proprietary interest; consensual compact; and injury to reputation. He allowed the appeal. Olsson J came to a similar conclusion. There is a postscript to this 1986 litigation: Section 6.2.5 of chapter 6 deals with a further appeal to the Full Court of the South Australian Supreme
201 (1952) 2QB 329. 202 (1986) 95 SASR 121. 203 Ibid 123 where he would have preferred to follow Wootten J’s lead in McKinnon v Grogan [1974] 1 NSWLR 295. 204 Plenty v Seventh-Day Adventist Church of Port Pirie (1986) 95 SASR 121, 125.
76 Court where that court held that the consensual compact was not binding on members of the Church as a contract.
2.7 Conclusions This chapter commenced by noting the unwillingness of the courts to deal with a legal concept which is clearly out of date, and moved on to a consideration of the leading Australian authority, Cameron v Hogan, and its antecedents in the ‘Club cases.’ Examination was then made of a number of cases post Cameron v Hogan which declined to apply this High Court precedent. A review of those cases indicates that there is pressure for reform or development so that a court does not need to locate ‘a right of a proprietary nature’ which needs protection, or to embark on some search for contractual intention in the constitutional arrangements of an association.
The final comment for this chapter, at least at the time of writing, can be left to Palmer J. in Coleman v Liberal Party of Australia:205
It is fair to say that in the 73 years since it was decided, Cameron v Hogan has been seen as increasingly difficult to reconcile with the needs of contemporary society. Judges have struggled to justify granting declaratory relief to resolve disputes within voluntary organisations which affect reputation, standing, occupation and the use of amenities, though not directly involving proprietary rights, while still paying lip service to Cameron v Hogan. Some judges have simply ignored the case, as did Street CJ in Eq in Grogan v McKinnon 206and in Flynn v University of Sydney.207 Wootton J forthrightly and eloquently refused to follow it in McKinnon v Grogan.208
If the courts are unwilling to develop the common law in this direction then legislative action may need to be taken.
205 (2007) 212 FLR, 271, 278. 206 [1973] 2 NSWLR 290, 292C 207 [1971] 1 NSWLR 857, 858G. 208 [1973] 2 NSWLR 290, 297-8.
77 The next chapter considers whether employing the ‘statutory contract’ created by operation of s 140 of the Corporations Act 2001(Cth) will supply the answer in any search for intention to treat the rules of an association as legally binding between members of that association.
78 3 COMPANY MEMBERSHIP AND THE STATUTORY CONTRACT
3.1 Introduction A conclusion of the previous chapter was that if members of an unincorporated association intend that the rules of the association are to be a contract between them as members, then a court has jurisdiction to treat those rules as a contract binding members to each other in the terms of those rules.
Where an association has been incorporated pursuant to the current corporations legislation,209 then the constitution of the incorporated association will operate as a contract between the members by force of the statutory provision found in that company legislation. This is the effect of the present s 140(1) of the Corporations Act 2001(Cth) and its antecedents. Does the corporate status of an association, importing the statutory contract, solve the jurisdiction problem stated in Cameron v Hogan? In other words, the relationship of members of an incorporated association is founded on contract rather than consensual compact. Hickman v Kent or Romney Marsh Sheep Breeders Association,210 considered at section 3.3, is an example of a not-for-profit association, clothed in corporate form, having its internal rules construed as a contract between members.
There are four Acts of the New South Wales Parliament to be examined to see if they contain a ‘statutory contract’ concept. The Acts are: the Anglican Church of Australia Constitutions Act 1902 NSW), the Anglican Church of Australia Constitution Act 1961 (NSW), the Anglican Church of Australia Trust Property Act 1917 (NSW) and the Anglican Church of Australia (Bodies Corporate) Act 1938 (NSW). The constitutional basis of the Anglican Church in New South Wales, is contained in constitutions set out in schedules to the
209 Corporations Act 2001 (Cth). 210 [1915] 1 Ch 881.
79 first two Acts just noted.211 Are there words in the covering Acts which suggest the existence of a ‘statutory contract’? If that concept can be found, then it can be argued that the terms of the constitutions in the schedules bind members of the Anglican Church in New South Wales as if they had entered in a legally binding contract with each other.
The Anglican Church of Australia Trust Property Act 1917 (NSW) creates a statutory body corporate as trustee of diocesan property. Does that Act create a ‘statutory contract’ between the members of the body corporate and perhaps by extension between the members of the Church who benefit from the property held in trust?
Quite apart from the two ‘constitution Acts’, and in addition, there is the Anglican Church of Australia (Bodies Corporate) Act 1938 (NSW) which empowers a synod of an Anglican diocese in New South Wales to create a body corporate by appropriate resolution and notice in the Government Gazette. Do the terms of that act operate to commit members of the newly created corporate body to each other in a binding and contractual relationship, in the same way as s 140 (1) of the Corporations Act 2001(Cth) binds members of a company?
3.2 The Statutory Contract The ‘statutory contract’ is a concept which is a residue of the jurisprudence preceding the first companies’ legislation in the United Kingdom. In essence, it is the notion that the members of a commercial enterprise are bound together contractually by the terms of the legal documents which constitute the enterprise. The consequence is that
211 Anglican Church of Australia Constitutions Act 1902 (NSW) provides a statutory base for the constitution set out in the Schedule and the exercise of the powers given in the constitution. The synod of each NSW diocese has power to make rules for the good order and governance of the church in that diocese. The Anglican Church of Australia Constitution Act 1961 (NSW) similarly provides a statutory base for the constitution set out in the schedule and the exercise of the powers given in the constitution. That schedule is a national constitutional framework for the 23 dioceses of the Australian Anglican Church. Both Acts make decisions taken by synods which concern property, binding on members of the association.
80 members could legally enforce compliance with those terms against wayward members.
The concept of a contract binding members of a company to each other can be traced back to the large, quasi-partnerships known as joint stock companies which were common in the 18th century as a vehicle for commercial enterprise. The 1844 United Kingdom Joint Stock Companies Act212 gave corporate status to such an enterprise upon registration of its deed of settlement. Section 7 provided a certificate of registration under the Act if every shareholder had executed the deed, thereby covenanting to pay the amount of the instalments on the shares taken up by the shareholder and also to perform the other covenants in the agreement.
Another commercial vehicle was the Deed of Settlement Company which constituted a large partnership, where some of the partners were appointed as trustees to conduct the business for the partnership association in accordance with the terms of a trust deed. The 1856 Joint Stock Companies Act213 replaced the Deed of Settlement with a Memorandum of Association and Articles of Association and provided that upon registration, the Memorandum and Articles bound the company and the shareholders:
[t]o the same Extent as if each Shareholder had subscribed his Name and affixed his Seal thereto or otherwise duly executed the same, and there were in (the Memorandum Covenant to conform to all the Regulations of such (Memorandum and Articles), subject to the Provisions of this Act.
This provision removed the need for every member to sign the deed of settlement, which had become an inconvenience.214
212 Joint Stock Companies Act 7 & 8 Vict, c 110 (1844). 213 Joint Stock Companies Act 19 & 20 Vict, c 47 (1856). 214 Roger Gregory, “The Section 20 Contract’ (1981) 44 Modern Law Review 526.
81 A similar provision became part of company legislation in each state, so for example in New South Wales we find:
The provision now contained in s 22 of the NSW Companies Act 1936 that the Memorandum and Articles of Association shall, when registered, bind the company and the members thereof to the same extent as if they respectively had been signed and sealed by each member and contained covenants on the part of each member to observe all the remaining provisions of the Memorandum and Articles, which has the effect of obviating the necessity for the execution of a deed by the members of the company, first made its appearance in the English Joint Stock Companies Act of 1856.215
Now, section 140 (1) of the Corporations Act 2001(Cth) provides: A company's constitution (if any) and any replaceable rules that apply to the company have effect as a contract: (a) between the company and each member, and (b) between the company and each director and company secretary, and (c) between a member and each other member, under which each person agrees to observe and perform the constitution and rules so far as they apply to that person.
The literature on the nature and extent of this statutory contract is extensive.216 Its relevance to the thesis will depend on whether a ‘statutory contract’ can be discovered in the New South Wales, Anglican Church-specific legislation, considered later in this chapter.
Before embarking on a consideration of legislation and cases, a brief note should be made of the current conversation on corporate law theory. The reason for noting this conversation is to see if these evolving theoretical views on corporations provide a window of opportunity for court intervention in the affairs of an association which
215 Australian Coal & Shale Employees' Federation v Smith (1937) 38 SR (NSW) 48, 54. 216 See, eg, Kenneth W Wedderburn, ‘Shareholders’ Rights and the Rule in Foss v Harbottle’ (1957) Cambridge Law Journal 194; Gregory, above n 195; Robert R Drury, ‘The Relative Nature of Shareholders Right to Enforce the Company Contract’ (1986) Cambridge Law Journal 219.
82 has incorporated. Of course, there are existing corporate law remedies and sanctions for breaches of established common law and statutory duties. The question here is whether corporate law theory might yield a fresh ground for judicial intervention in the affairs of an association which has clothed itself in a corporate form.
In the classic study of the 1930s, Berle and Means argued that the divorce of the shareholder from the manager (in the large public corporations) gave those managers significant power so that ‘the rise of the modern corporation has brought a concentration of economic power which can compete on equal terms with the modern state…’217 This ‘managerialist’ theory of the corporation focuses on the exercise of corporate management and its power. Because shareholders are not able to effectively monitor managers, legislation is needed to protect shareholder interests, impose duties and obligations on directors and managers, and to require proper disclosure of corporation activities.
The other competing theory of the corporation is the ‘contractual’ theory where
competitive markets are more important than mandatory legal rules in providing managers with appropriate incentives to maximise shareholder wealth. These markets include the product market, the market for corporate control and the managerial labour market. The contractual theory does not imply the absence of legal rules. Rather, the theory asserts that market forces require managers to act in the interest of shareholders. This means that there is less need for mandatory corporate law rules imposed by government which have the objective of requiring managers to act in the interest of shareholders.218
Since the late 1970s, ‘corporate law theory has been dominated by economic analysis which posits that the corporation is a nexus of
217 Adolf Berle and Gardiner Means, The Modern Corporation and Private Property (Harcourt Brace & Company, New York:1968) quoted in Laurence C B Gower, The Principles of Modern Company Law (Stevens, London: 3rd ed, 1969), p58 and see nn 20-23 for discussion. 218 Harold A J Ford, Robert P Austin and Ian M Ramsay, Ford's Principles of Corporations Law ( Butterworths, Sydney:10th ed, 2001) 9.
83 contracts’.219 This economic analysis of law approach is evident in Australia in the Corporate Law Economic Reform Programme (CLERP) of 1996 where the ‘aim of CLREP was to use an economic analysis of law to drive corporate law reform’.220 Traditionally, corporate law balanced the power between the managers (the directors) and the owners (the shareholders). An economic analysis fixes the corporation and corporation law within the market place and therefore, the need for the corporation to be responsive to the market place. There is ‘a very limited role for governments seeking to shape corporate law to achieve public policy objectives’.221
In a recent book, Stephen Bottomley222 suggests another tool for assessing the place of the corporation. Instead of economic analysis with the corporation being the nexus of contracts, Bottomley sees the corporation as a body politic with a constitutional framework in which decisions are made. The constitution of the corporation, and not contract, is the foundation for corporate governance. Corporate decisions should be assessed for their legitimacy against three principles, viz accountability (the decision-making process should be characterised by separation of decision-making powers), deliberation (decisions should be made after deliberation) and contestability (decisions which do not follow the trajectory of the interests of the members should be readily contestable).
Accordingly, shareholders are encouraged to be actively involved in corporations as members, rather than investors, and, from this point of view, to express any concerns which might not be necessarily financial or commercial. Members should encourage directors to exercise sound corporate governance with a concern for corporate social responsibility. This understanding of the place of a corporate entity
219 Angus Corbett and Peta Spender, 'Corporate Constitutionalism' (2009) 31 Sydney Law Review 147. 220 Ibid 148. 221 Ibid 148. 222 Stephen Bottomley, The Constitutional Corporation (Ashgate Publishing Ltd, Aldershot, UK: 2007).
84 would resonate with incorporated associations whose object is to further some aspect of civil society. A sentence from Cameron v Hogan223 illustrates the width of community interests which might come into play: ‘They are for the most part bodies of persons who have combined to further some common end or interest, which is social, sporting, political, scientific, religious, artistic or humanitarian in character, or otherwise stands apart from private gain and material advantage’.
None of the three corporate law theories mentioned suggest a direct new ground for judicial intervention in the affairs of an unincorporated association. If there was a public policy initiative by government to address the ‘invisible’ character of unincorporated associations then Bottomley’s approach would be more fertile ground to till.
3.3 Exegesis of ‘statutory contract’ by the courts Hickman v Kent or Romney Marsh Sheep Breeders Association224 is the usual starting point for cases expounding the law on the meaning of ‘statutory contract’. In that case, the company was registered on 23 April 1895 as an association not for profit. The object of the association was encouragement of the breeding of Kent or Romney Marsh sheep at home and abroad and the maintenance of the purity of the breed. Various Articles of Association dealt with membership, entrance fees, annual subscriptions, meetings and the like. Article 10 required each member to observe the by-laws and regulations of the council and art 11 permitted the exclusion from the association of members who failed to observe lawful regulations of the association.
The plaintiff was elected as a member on 12 December 1905. Some nine years later the plaintiff commenced proceedings seeking injunctions to restrain the association and its secretary from acting in
223 Cameron v Hogan (1934) 51 CLR 358, 370. 224 [1915] 1 Ch 881.
85 a particular way, and also for damages arising out of the association refusing to register sheep belonging to the plaintiff.
Article 49 of the Articles of Association of the company stated:
Whenever any difference arises between the association and any of the members touching the true intent or construction or the incidents or consequences of these presents or of the statutes or touching anything then or thereafter done, executed, omitted, or suffered in pursuance of these presents or of the statutes, or touching any breach or alleged breach of these presents, or any claim on account of any such breach or alleged breach, or otherwise relating to the premises or to these presents, or to any statute affecting the association, or to any of the affairs of the association, every such difference shall be referred to the decision of an arbitrator to be appointed by the parties in difference, or, if they cannot agree upon a single arbitrator, to the decision of two arbitrators, of whom one shall be appointed by each of the parties in difference, or an umpire to be appointed by the two arbitrators.225
Astbury J observed that the provisions of art 49 could be found in the Articles of many private companies. He then made reference to s 14(1) of the Companies (Consolidation) Act 1908 (UK) which provides:
The memorandum and articles shall, when registered, bind the company and the members thereof to the same extent as if they respectively had been signed and sealed by each member, and contained covenants on the part of each member, his heirs, executors and administrators, to observe all the provisions of the memorandum and of the articles, subject to the provisions of this Act.
As Hickman had become a member of the incorporated association art 49 was held to be contractually binding.
225 Ibid 884.
86 Gower says of this judgment,226 Astbury J, ‘reviewed earlier cases in a judgment which has become the locus classicus’. That judgment noted a difference of view amongst leading text writers,227 and then considered three earlier cases.228 In each case, the article of association relied upon purported to give specific contractual rights to persons in some capacity other than that of shareholder. Also, in each case, the plaintiff was not seeking to enforce or protect rights given to them as members in common with the other members.
Astbury J concluded that art 49 was a general article which applied to all members. To allow the plaintiff to proceed would be in breach of the plaintiff’s obligations under art 49 to submit his disputes with the Association to arbitration.
Astbury J said at 903:
In my judgment, article 49, for the reasons above referred to, creates rights and obligations enforceable as between the plaintiff and the association respectively and those rights and obligations are contained in a written document…and general articles dealing with the rights of members ‘as such’ treated as a statutory agreement between them and the company as well as between themselves inter se,…
In Rayfield v Hands,229 the plaintiff was a shareholder. The articles of association provided that no shares could be transferred to an outsider as long as any member was willing to purchase the shares at a fair value. A member who wished to transfer shares was to inform the directors ‘who will take the said shares equally between them at a fair value’. As the directors were also members, the court
226 Gower, above n 219, 261. 227 Hickman v Kent or Romney Marsh Sheep Breeders Association [1915] 1 Ch 881, 890. 228 Eley v The Positive Government Security Life Assurance Company, Limited (1875) 1 Ex.D 20; Melhado v Porto Alegre Ry. Co. LR 9 CP 503; Browne v La Trinidad 37 Ch D 1. 229 (1960) Ch1; [1958] 2 All ER 194
87 held that they were bound by the statutory contract to take the shares offered to them at a fair value.
The most thorough judicial examination of the statutory contract occurred in the related cases of Bailey v NSW Medical Defence Union Ltd,230 and NSW Medical Defence Union Ltd v Crawford.231 Dr Bailey was a member of the Medical Defence Union. Crawford was a patient who saw Dr Bailey and suffered injuries as a result of treatment. Dr Bailey maintained his membership of the Defence Union by payment of annual subscriptions. At the time of the injuries to Crawford (1974), the articles of association required the Defence Union to indemnify each member or the personal representative of a deceased member against liability for damages arising from any claim against the member.
In 1977, the articles were amended to give the Defence Union a discretion not to indemnify a person who ceased to be a member. In 1982, the articles were amended again to give the Defence Union an absolute discretion as to whether to grant an indemnity to its members. Dr Bailey was a member of the Defence Union from 1951 until his death in 1985.
After Dr Bailey's death, Mrs Bailey as executrix of his estate was substituted as a defendant. She requested assistance from the Defence Union which was refused. As a result, the estate cross claimed against the Defence Union seeking an indemnity against Crawford's claim. All claims were heard together. In the Supreme Court of NSW, Enderby J gave judgment in favour of Crawford against the estate, and in favour of the estate on its cross-claim against the Union.
230 (1995) 184 CLR 339. 231 (1995) 13 ACLR 1695.
88 In the second action, judgment was given in favour of Crawford against the Union under the provisions of s 6 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW).
The NSW Court of Appeal upheld both judgments.
A further appeal to the High Court232 was brought as to whether the Defence Union was liable to indemnify Dr Bailey's estate against the damages awarded to Crawford. The second question was whether the Law Reform (Miscellaneous Provisions) Act 1946 gave Crawford a right of recovery against the Defence Union.
The articles of association in their various amended forms were considered by the Court. Brennan CJ, Deane and Dawson JJ held that the terms of the contract between the Defence Union and Dr Bailey were to be found mostly in the articles of the Defence Union. Each annual renewal of membership constituted a new contract. Accordingly, the Defence Union was liable to indemnify Dr Bailey's estate in respect of the claim.
McHugh and Gummow JJ, in a separate judgment also agreed that the Defence Union was obliged by the contract it had with Dr Bailey to indemnify his estate. The majority considered in detail the articles in their various forms and concluded that the Medical Defence Union was obliged to indemnify Dr Bailey's estate against the claim.
McHugh and Gummow JJ provided considered views on the effect of the articles on membership and the reasoning of earlier decisions. Particular attention was given to the submission by the Defence Union that a distinction should be drawn between the articles operating as a statutory contract and, in this case, the insurance contract which was identified as a special contract.
232 Bailey v NSW Medical Defence Union Ltd (1995) 184 CLR 339.
89
In their consideration of the legislative history of the statutory contract, reference was made to Australian Coal & Shale Employees' Federation v Smith233 where Jordon CJ said, in reference to the statutory contract provision found in s 22 of the Companies Act 1936 (NSW) ,
The section does not say that the Memorandum and Articles are to operate as if they had been executed by, and had contained a similar covenant on the part of, the company; but it does say that they are to bind the company, and this should be perhaps regarded as a statutory application of the principle that a party who takes the benefit of a deed is bound by it though he does not execute it.
Also cited was Professor Sealy, who questioned the need for the statutory contract at all:
[It] was enacted to cover a gap which was thought to have been created when the memorandum and articles replaced the deed of settlement in 1856;neither it nor all of the subsequent theorising has any relevance to the present-day world.234
This view prevailed in New Zealand where the statutory contract was omitted in the last review of company legislation.235 Similarly, it is absent in Canadian company legislation.236 It would take a corporate law reform initiative to remove the statutory contract provision from Australian company legislation.
In the meantime, their Honours described the statutory contract as a contract of ‘an unusual type’. Firstly, the members are deemed to have contracted on the basis that the articles can be altered by special resolution and thus can be varied from time to time without specific
233 (1937) 38 SR (NSW) 48, 54. 234 Leonard Sealy, Cases and Materials in Company Law (Oxford University Press, Oxford: 5th ed, 1992) 96. 235 Law Commission, Company Law Reform and Restatement, (NZLC R9, 1989) at 154. The Commission concluded that the ‘statutory contract’ approach was anachronistic misleading and uncertain. The Companies Act 1993 (NZ) omits the statutory contract. 236 Bottomley, above n 225, 22 fn 14.
90 agreement of both parties to the variation. Secondly, there is no jurisdiction in a court of equity to rectify the articles of association, even if they do not accord with the intention of the signatories at the time the articles come into effect. Thirdly, the direct enforcement by a member of rights under such a statutory contract may have to overcome obstacles created by the rule in Foss v Harbottle.237 Fourthly, while the contract binds those who made it, the articles in a company limited by shares binds the owners of those shares for the time being, and any obligations pass with the shares on a change of ownership. Finally, a shareholder cannot sue the company ‘for damages for breach of contract whilst still a member, without seeking rescission of the contract whereby the shares were obtained’.238
In summary, the memorandum and articles have no direct contractual effect in so far as they purport to confer rights or obligations on a member, except in the capacity of a member. This concept is expressed in such phrases as, ‘qua member’ and ‘member as such’. Thus, for example, where the company constitution provided for a named person to be the solicitor for the company, and the company subsequently appointed another solicitor, the statutory contract could not be relied on as a basis for a breach of contract action. It would make no difference if the solicitor was a member of the company.239 Given the limitations stated by the High Court, the statutory contract is confined to a very narrow field of operation.
3.4 A company limited by guarantee Australian company legislation provides for the registration of a company ‘limited by guarantee’.240 In this type of company the members do not hold shares but instead guarantee payment of an
237 (1843) 2 Hare; 67 ER 461, but now note statutory derivative action Corporations Act 2001(Cth) pt 2F.1A. 238 Citing Houldsworth v City of Glascow Bank (1880) 5 App Cas 317. 239 Eley v The Positive Government Security Life Assurance Company, Limited (1875) 1 Ex.D 20. 240 Section 112 of the Corporations Act 2001 (Cth).
91 amount towards the debts and liabilities of the company on a winding up. Commonly, this type of company is used by not-for-profit associations to access the advantages of corporate status. The statutory contract, in the context of a company limited by guarantee, was considered in Wilcox v Kogarah Golf Club Ltd.241 Wilcox was a member of the golf club which was incorporated as a company limited by guarantee. The memorandum and articles of association formed the constitution of the club. The committee at the club had power to make rules and by-laws dealing with membership fees, subscriptions, suspensions and expulsions. Article 15 provided for the exclusion from membership of any member who breached the articles or rules or by-laws of the club. By-law 13 permitted club members to be suspended from club membership. By-law 27 required observance of the rules, regulations and by-laws and imposed a duty on members to conduct themselves in a way which would not bring discredit on the club or offend other members. Wilcox was involved in a heated exchange with the club captain resulting in the committee, acting under the by-laws, suspending Wilcox for one month. After the suspension was served, Wilcox ventilated his case at two subsequent general meetings of the club and on each occasion, the members declined to set aside the suspension. Wilcox then sought a declaration that the suspension resolution by the committee was invalid and he also claimed damages.
Young J held that the rights given by s 180, the predecessor of the present s 140, only applied to the memorandum and articles of association. The section did not apply to the by-laws. The by-laws were not part of the constitution of the company and did not have the same status. Reference was made to Scandrett v Dowling242 where the majority held that church by-laws were part of the consensual compact and not enforceable in the circumstances.
241 (1996) 14 ACLR 420. 242 (1992) 27 NSWLR 483.
92
In the opinion of Young J, there were three exceptions to the general rule of judicial non-interference. Firstly, if there is an expulsion, the court may intervene. Secondly, by reference to Nagle v Feilden,243 if a salaried officer of the association is prejudiced in a right to earn a living, the court may intervene. ‘There may also be a third category where equity has to act in quiet title where there is a disturbance within the club which cannot be solved unless the court grants its aid’.244
The short suspension having expired and there being no utility in making the declaration, Young J dismissed the action with costs.
3.5 Associations incorporation legislation Before moving to Anglican specific legislation in New South Wales, mention should be made of associations incorporation legislation. This legislative provision for the incorporation of not-for-profit- associations, which now exists in all states of Australia, had its origins in South Australia in 1858. Professor Greg Taylor has documented the historical origins of this type of legislation.245 Although the 1858 South Australian Act provided a simple and inexpensive way of incorporating an association formed for some community purpose and not for profit, it took almost a century for the more populated eastern states to enact similar legislation. Religious bodies were eligible for incorporation under the South Australian legislation. Taylor gives Anglican examples of religious associations taking advantage of the provision.246
243 [1966] 2 QB 633. 244 Wilcox v Kogarah Golf Club Ltd (1996) 14 ACLR 420, 425. Fitzpatrick v Lithgow and District Workmens Club Limited [2012] NSWSC 265 is a recent ‘company limited by guarentee’ case where the statuary contract was not invoked. 245 Greg Taylor, 'The Origins of Associations Incorporation Legislation — The Associations Incorporation Act 1858 of South Australia' (2003) 22 University of Queensland Law Journal 224. 246 Ibid, eg, Holy Trinity Church, North Terrace and Port Adelaide Grammar School 230-235.
93 The Associations Incorporation Act 1858 (SA) provided a solution in South Australia to the question of state assistance to, or special recognition of, religious bodies and in particular, the Anglican Church. Some prominent South Australian Anglicans, even though in England they were members of the established Church, opposed state aid to religion. They held the view that religious bodies should ‘set up their own self-administering corporations’.247 Of that period in South Australian history, Taylor says given the context of religious freedom and lack of state involvement in religious matters, the climate:
was hostile to special Acts incorporating religious bodies---as the Church of England found when it petitioned for its own special incorporation Act in 1862 and the cry went up that its petition “shewed the desire of the Church to become an Established Church.” On the other hand, nineteenth-century South Australian society was not in any way irreligious and was quite content to promote religion on an equal basis for all by providing a general incorporation Act open to all comers.248
In New South Wales249 and in Victoria,250 the ‘establishment’ 251 objection was answered by the South African Privy Council appeals considered in chapter 5, and ceased to be a stumbling block to special ‘Anglican’ legislation in those colonies.
The New South Wales, Queensland, South Australia, Victoria and the Australian Capital Territory associations incorporation legislation makes provision for a ‘statutory contract’ similar to the s 140 Corporations Act 2001 provision. The rules of the association operate as a contract between the association and its members. In the other states the courts will look at the constitutional documents of the
247 Ibid 230. 248 Ibid 235 and footnote references 99-100 to Parliamentary Debates. 249 Church of England Property Management Act 1866 (NSW). 250 Church of England Act 1854. 18 Vict, an Act to enable the Bishops Clergy and Laity of the United Church of England and Ireland in Victoria to provide for the regulation of the affairs of the said Church. 251 For an explanation of ‘establishment’, see ch 4 at 4.2.
94 association and examine whether the members intended the rules to be ‘contractually’ binding. Two recent ‘incorporated association’ cases are given by way of illustration.
In Rose v Boxing NSW Inc, 252 the plaintiff, Wayne John Rose, was an amateur boxing referee and judge, having refereed at the Sydney Olympics and at least one Commonwealth Games. He was nominated to referee at the Beijing Olympics. The Executive Committee of the Association resolved to bar Mr Rose from any role in amateur boxing in NSW for five years. Rose contended that the resolution was void because he was not subject to the disciplinary powers of the Executive Committee and also, that the resolution was passed in circumstances which breached the rules of natural justice. The court held that Rose had standing to bring the action because of his contractual relationship with the Association. The resolutions were declared void and damages awarded.
In Goodwin v VVMC Club Australia,253 Goodwin was expelled from membership of the Association. The Association was registered under the Association Incorporations Act 1984 (NSW). Four questions arose in the context of the facts. First, was the expulsion justiciable? Second, are the by-laws sufficient to justify a resolution for expulsion? On the assumption that the by-laws were valid, had they been complied with and, had the plaintiff been given procedural fairness? The fourth question was, if the relationships between the plaintiff and the Association are contractual, was the expulsion a breach of the rules?
Although the defendant argued that the relationship was consensual the court did not agree. On the issue of damages, the court referred to
252 [2007] NSWSC 20. 253 [2008] NSWSC 154. For further examples: Islamic council of South Australia v Australian Federation of Islamic Councils Inc [2009] NSWSC 211; Metropolitan Petar v Mitreski [2012] NSWSC 106; Tomasevic v Jovetic [2012] VSC 223; Bagga v The Sikh Association of Western Australia Inc [2012] WASC 193.
95 Rose v Boxing NSW Inc, and said ‘As the purpose of membership of a club is to provide opportunities to participate in social, sporting, cultural, political or other activities, breaches of contracts founded on their rules and constituted by improper exclusion from membership will commonly attract such damages, because such a breach defeats the purpose of the contract’.254 The court made certain declarations and ordered damages of $1000.00, together with costs.
As will be seen from the next sections, there is no practical need for the Anglican Church in New South Wales to avail themselves of the provisions of the Association Incorporations Act 1984 (NSW). Chapter 8 makes reference to similar state legislation which facilitates the ownership and management of property owned by churches in New South Wales.
3.6 Anglican Church Legislation in New South Wales Unlike South Australia, the New South Wales Parliament has been willing to pass private acts to assist the Anglican Church in the state to govern its affairs and manage its property. As long ago as 1866, an Act, Act 30 Victoria, was passed to enable the members of the United Church of England and Ireland to govern the church and manage its property. The 1866 Act was repealed and replaced by the Anglican Church of Australia Constitutions Act 1902 (NSW). The constitution contained in the schedule allows each diocese in the state of New South Wales to convene a synod to pass measures ‘for the order and good government (of the church) within the diocese’. When the Anglican Church in Australia became independent from the Church of England the Anglican Church of Australia Constitution Act 1961 (NSW) provided in its schedule a federal constitutional framework for all 23 dioceses of the Australian Anglican Church.
254 Ibid [46].
96 Attention is now directed to four specific legislative Acts to see whether any provisions lend themselves to support a ‘statutory contract’ construction so as to bind the members to the terms of the various constitutions. If the ‘intention to enter into contractual relations’ is satisfied by a ‘statutory contract’, then the initial jurisdictional hurdle is overcome and a court can examine the merits of in internal dispute. The two constitution Acts are considered first, then the other two Acts in chronological order.
3.7 Anglican Church of Australia Constitutions Act 1902 (NSW) This Act provides a constitution for the seven Anglican Diocesan Synods in New South Wales.255 The long title gives the reason for the Act: ‘to give legal force and effect to the constitutions for the management and good government of the Church of England within the State of New South Wales contained in the schedule to this bill; and for other purposes connected with or incidental to the above objects’.
In introducing the Bill into the Legislative Council, Dr Cullen, said ‘What is embodied in this Bill is really the desire of all the Church of England Dioceses in New South Wales and the Provincial Synod’.256 The Legislative Council was informed that in 1866, an Act was passed to give the force of law to certain constitutions for the good governance of the affairs of the church. This 1902 Bill was to repeal the 1866 Act and re-enact the new constitutions in their amended form. Much the same was said in the Legislative Assembly.257
255 The dioceses are Sydney, Newcastle, Bathurst, Canberra & Goulburn, Grafton, Riverina, and Armidale. 256 New South Wales, Parliamentary Debates, Legislative Council, 19 November 1902, 4629, Dr Cullen. Parliament was considering the Bill at the request of the Provincial (State) Synod of 1895. 257 New South Wales, Parliamentary Debates, Legislative Assembly, 18 December 1902, 5825; Mr Brunker, in moving the Bill, said ‘In accordance with the progress of the church, the Synod has introduced this Bill in order to enable them to manage the affairs of the church in a much more satisfactory manner than hitherto’.
97 Section 4 of the Act provides:
The several articles and provisions of the constitutions contained in the Schedule to this Act, and any ordinances and rules to be made under or by virtue or in pursuance thereof, are and shall be for all purposes connected with or in any way relating to the property of the Church of England within the State of New South Wales binding upon the members of the said Church.
Section 5 provides that all persons holding real or personal estate in trust for the ‘Church of England within the State of New South Wales’ do so subject to the constitution and any ordinances or rules made by a diocesan synod under the constitution.
The Second Constitution of the schedule is a grant of plenary power to the synod of each diocese:
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 in force in this State.
More critically for the purposes of this thesis, is Constitution 2(2) which provides that all ordinances of the Synod are binding on the ‘Bishop and the Bishop’s successors and all other members of the church in respect to their rights, duties and liabilities as holders of an office in the Diocese.’ As we shall see in chapter 7, an ‘office’ is a form of property and this may satisfy the ‘property’ requirement for jurisdiction as stated in Cameron v Hogan.258
Constitution 3(3) gives power to a synod by ordinance to deal with incapacity or inefficiency in clergy while Constitution 3(4) deals with suspension or revocation of a clerical licence by the bishop of a diocese. These provisions give a statutory foundation for discipline
258 (1934) 51 CLR 358.
98 proceedings and tribunals in New South Wales Anglican dioceses. The difficulties faced by the first bishop of Cape Town in enforcing discipline decisions on his clergy, due to deficiencies in his Letters Patent appointment (see chapter 5) are avoided by these constitutional provisions.
While s 4 of the covering Act makes property decisions taken under the constitution contained in the schedule to the Act binding on the members of the church, there is no over-arching provision which makes all synod decisions binding on members of the Church. In this sense then, there is no ‘statutory contract’ to be found in the Anglican Church of Australia Constitutions Act 1902 (NSW).
3.8 Anglican Church of Australia Constitution Act 1961 (NSW) This Act, in a similar but not identical form, passed in all states and territories of Australia259 annexes a schedule containing a constitution for the Anglican Church of Australia. The constitution provides a framework for how the 24, now 23 dioceses can work together in a federal framework.260
The New South Wales Act, in s 2, provides:
The several articles and provisions of the Constitution contained in the Schedule to this Act (hereinafter called the Constitution) and any canons and rules to be made under or by virtue or in pursuance thereof are and as provided in the Constitution shall be for all purposes connected with or in any way relating to the property of the Church of England in Australia binding on the Bishops, clergy and laity being members of the Church of England in Australia
259 Anglican Church of Australia Act 1980 (ACT); Anglican Church of Australia Act 1976 (NT); Anglican Church of Australia Constitution Act 1961 (NSW); Anglican Church of Australia Constitution Act 1961 (Qld); Anglican Church of Australia Constitution Act 1961 (SA); Anglican Church of Australia Constitution Act 1977 (Tas); Anglican Church of Australia Constitution Act 1985 (Vic); Anglican Church of Australia Constitution Act 1960 (WA). 260 Davis, above n 121 provides a very readable account of the long and tortured history about how this constitution came into existence.
99 in the several Dioceses of the Church of England within the State of New South Wales.
This section is very similar in wording to s 4 of the Anglican Church of Australia Constitutions Act 1902 (NSW). Like that section, the binding reach on members of the association, relates only to synod decisions concerning property.
In summary, at least in New South Wales, the Anglican Church of Australia Constitutions Act 1902 (NSW) and the Anglican Church of Australia Constitution Act 1961 (NSW) clearly provide for all legislative measures passed by a New South Wales synod, which deal with property will be binding on clergy and other members of the Church. Scandrett v Dowling,261 reinforces that understanding. A full consideration of that case is in chapter 6, In Court: Australian Church ‘Internal Dispute’ cases.
3.9 Anglican Church of Australia Trust Property Act 1917 (NSW) This Act consolidates and amends various Acts relating to property held on trust for the Anglican Church in dioceses in New South Wales. Extensive powers of management are given to the synod including a power to vary trusts. This saves the expense of equity proceedings to approve cy-près schemes. A full appreciation of this Act is given in chapter 8. In passing however, the very wide terms of s 24 should be noted:
It shall be lawful for the synod of a diocese for which any church trust property is for the time being held, from time to time by ordinance, to provide and to vary any provision now or hereafter to be made for governing and controlling the management and user of such property for the purposes for which the same is for the time being held in trust, and for all things incidental to such government and control, including constitutions of councils, committees and other bodies, whether incorporated or not, and such
261 (1992) 27 NSWLR 483.
100 property shall be held, managed, and used under and in accordance accordingly, the provisions of the trust instrument or instruments (if any) to the contrary notwithstanding.
While s 5 declares the named Property Trusts of each diocese to have ‘been duly constituted as bodies politic and corporate’, there is no suggestion in any section of the Anglican Church of Australia Trust Property Act 1917 (NSW) of a concept of a ‘statutory contract’. In any event, a ‘statutory contract’ if it existed, would only bind the members of the particular diocesan property trust and not the members of the church at large.
3.10 Anglican Church of Australia (Bodies Corporate) Act 1938 (NSW) Apart from the two ‘constitution’ Acts of 1902 and 1961, and the Church Property Trust Act considered above, there is one other Act which might create a ‘statutory contract’ between members or some members of the Anglican Church in New South Wales. This is the extraordinary legislative provision for the synod of a New South Wales Anglican diocese to constitute an unincorporated association as a body corporate. This is done by resolution of the synod and a notice in the government gazette. The Act provides standard provisions for quorum, the use and custody of the seal and ‘the application of the Conveyancing Act in regard to proof of technical matters similar to what Parliament did in connection with the Roman Catholic Church Trust Property Act’.262
The long title of the Anglican Church of Australia (Bodies Corporate) Act 1938 (NSW) states its purpose:
An Act to make provision for and with respect to the constitution of bodies corporate for the purposes of managing, governing and controlling institutions
262 New South Wales, Parliamentary Debates, Legislative Assembly, 5 August 1938, 869, Mr L O Martin. It is beyond the scope of this thesis to explore the Religious Educational and Charitable Institutions Act of 1861 (Qld), now repealed, where the Governor could by letters patent create a body corporate for the type of institutions cited in the title of the act.
101 and organisations of the Church of England and of holding, managing and dealing with church trust property of the Church of England; and for purposes connected therewith.
In the Diocese of Sydney, for example, a number of Church school councils, the major aged care institution (Anglican Retirement Villages), Moore Theological College and the Glebe Administration Board are constituted as bodies corporate.
A diocesan synod is given power to constitute further bodies corporate by s 4(1)263 and the characteristics of a body corporate are found in s 6.264
Corporate bodies created pursuant to the 1938 Act have the characteristics of separate legal identity found in the normal company. Perpetual succession to property, the ability to sue or be sued and the power to contract are all present. Does this mean that such corporations are the same as companies formed under the Corporations Act and, for the concept of ‘statutory contract’ does s 140 apply to bodies corporate created pursuant to the 1938 Act?
By s 57A of the Corporations Act 2001, a body corporate is included in the meaning of the term corporation. So, to what extent is the constitution of a New South Wales Anglican body corporate binding on its members? Section 140 of the Corporations Act 2001 uses the
263 ‘The Synod of a diocese may, by ordinance, declare that it is expedient for the purpose of managing, governing or controlling any institution or organisation of the Church of England or of holding, managing or dealing with any church trust property subject to the control of that Synod, that the persons who for the time being are the members of the unincorporated body named in the ordinance should be constituted a body corporate under the name set out in the ordinance.’ 264 ‘(1) Each body corporate constituted by or under this Act shall have perpetual succession and a common seal, may enter into contracts in its corporate name, may sue and be sued, and may take and hold any real or personal property. (2) Each body corporate constituted by or under this Act shall have and may exercise and perform the powers, authorities, duties and functions conferred or imposed by any ordinance of the Synod of the diocese at whose instance the body corporate was constituted.’
102 word, company and not corporation. Thus as a matter of strict legal interpretation the statutory contract provision cannot apply to corporate bodies created pursuant to the Anglican Church of Australia (Bodies Corporate)Act 1938. It follows that any binding characteristic in the constitution of a body corporate created pursuant to the provisions of the 1938 Act must be found elsewhere.
Care must be taken when considering if a particular Corporations Act 2001 provision applies to an Anglican Church 1938 Act body corporate. For example, the director’s duties in s 180 of the Corporations Act 2001 apply to directors of a 1938 body corporate. However, relief from the doctrine of ultra vires given by s 125 of the Corporations Act 2001 does not apply.
3.11 Conclusions The essential argument in favour of a statutory contract is that an enforceable contact is created between members of a corporate enterprise concerning the terms of their membership. This would give the courts a jurisdictional entry point into the internal life of a corporate enterprise to permit judicial resolution of internal disputes.
Corporations Law creates a contract between members of the corporation and the terms of that contract are the constitution of the corporation. An examination of the case law shows that there are significant limits on the extent to which members can enforce the terms of that statutory contract against each other. Nevertheless, despite these limitations, this chapter then examined whether the ‘Anglican Church-specific’ legislation contained any notion of a statutory contract which members could rely on when seeking to enforce the terms of constitutions. Clear provisions exist in the various ‘Anglican’ Acts to make decisions concerning property binding on members of the church. There is no direct provision or suggestion of a statutory contract in the ‘Anglican’ legislation.
103
In summary, the two Acts265which provide a constitutional framework for the Anglican Church of New South Wales, do not in their specific provisions, create a statutory contract between the members of the Anglican Church in a diocese. Even if a ‘statutory contract’ could be found in the two Constitution Acts, membership of the unincorporated association is so large and indeterminate as to make it impossible to determine with certainty who might be bound. Further, there is the difficulty of Scandrett v Dowling 266which, at the New South Wales Court of Appeal level, held that the 1902 Constitution is binding in respect to property only.
The 1917 Church Property Act267 provides authority to diocesan property trusts and synods to make decisions in respect to church property. There are no more than twelve members of each diocesan property trust and they are bound to act as trustees for church trust property held by them.
More pertinent to the thesis question are corporations created under the provisions of the Anglican Church of Australia (Bodies Corporate) Act 1938 (NSW). Mostly they are school councils and most members are elected by the synod for three-year terms. When difficulties arise in these corporate bodies political action can be taken to resolve the crisis. The election process can replace fractious members, the constitution of the body corporate can be amended or the trusts varied as the case may require. In any event, definitions in the Corporations Law preclude the operation of s 140 to import a statutory contract into membership relations.
The initial attraction of a ‘s 140 statutory contract’, as a judicial entry point into the life of the Anglican Church in New South Wales, proved
265 Anglican Church of Australia Constitutions Act 1902 (NSW) and the Anglican Church of Australia Constitution Act 1961 (NSW). 266 (1992) 27 NSWLR 483.See further chapter 6. 267 Anglican Church Trust Property Act 1917 (NSW).
104 to be illusory on further examination of the Anglican Church-specific legislation in New South Wales. Is there another entry point to examine? The importance of having an entry point for court intervention into the life of unincorporated religious associations is that some serious internal disputes are incapable of internal resolution. Whether courts will want to be involved remains an open question. Despite the plaintive cry of Wootten J and others (see page 237) the present jurisprudence precludes such intervention. The next chapter surveys another possibility relating to the Church of England and lays the groundwork for understanding the South African cases considered in chapter 5.
105
4 THE CHURCH OF ENGLAND
4.1 Introduction The Anglican Church in New South Wales has its origins in the Church of England and was legally an overseas extension of the Church of England until the adoption in 1961 of a constitution for the Australian Church.268 It is the purpose of this Chapter is to traverse a number of legal and ecclesiastical concepts and provide essential background for understanding the South African Anglican Church Privy Council appeal cases considered in chapter 5 and to the Australian ‘church internal dispute’ cases considered in chapter 6.
The Church of England and the establishment and growth of its overseas dependencies is located within the context of the phenomenon of the British Empire.269 The sequence of imperial progress was ‘first the missionary, then the Consul, and at last the invading army’.270 In this chapter, our focus is not ‘missions and empire’ 271 but key ideas and legal cases which shaped the relationship of the Church of England with its colonial manifestations. Global expansion of the Church of England took place mainly in the 19th century.272 The evolution of Church of England governance
268 This was the opinion of Senior Counsel in England and Australia. The Opinions are reproduced by the Canon Law Commission in Canon Law in Australia.(Anglican Church of Australia Trust Corporation, Sydney: 1981) 112-146, and summarised by Giles, above n 118, 158. 269 For an historical treatment of the British Empire, see The Cambridge History of The British Empire, (CUP, 1968)vol ll, ‘The Growth of the New Empire 1783-1870’, ch X, ‘Colonial Self-overnment 1838-1852’; ch XlX, ‘Colonial Self-government 1852-1870’; J T P Bury, The New Cambridge Modern History, (CUP, 1960) vol X, ‘The Zenith of European Power 1830-1870’; P J Marshall, The Oxford History of the British Empire(OUP, 1998), vol ll, ‘The Eighteenth Century’; A Porter, vol lll, ‘The Nineteenth Century’, (OUP, 1999). 270 John A Hobson, Imperialism: A Study (Allen & Unwin, London: 3rd ed, 1938) 204. 271 For a treatment of this topic see Norman Etherington, Missions and Empire (OUP, Oxford: 2005), a volume in the Companion Series to The Oxford History of The British Empire. 272 There was some transplanting of the Church of England as ‘established’ in some of the Thirteen Colonies in North America and the West Indies in the 17th century. The growth and development in America came to an abrupt halt with the
106 arrangements in Australia raised legal issues paralleled in other parts of the British Empire such as South Africa, Canada and New Zealand.
Several questions troubled Church of England congregations in the colonies of the British Empire. What was their legal status?273 In some colonies, the Church was ‘established’ and enjoyed a privileged position. In other colonies, the Church took its place with other Christian denominations. What laws were applicable to the colonial church? The laws governing the Church of England were part of the law of the England and enforced as such in the King’s courts. Did the law of England run in the King’s dominions beyond the realm of England? In particular, did the ecclesiastical laws applicable in England apply in the colonies? Allied to this was access to the civil courts and access to the Privy Council as the final court of appeal. How else could internal, colonial Church of England disputes be finally and conclusively resolved?
This was no mere domestic question with restricted applicability to a minor unincorporated association. Until the second half of the 19th century, the Church of England assumed the proportions of a department of state: it was, and still remains, the ‘official’ or ‘established’ church in England. Any answer to these colonial church questions had ramifications throughout the far-flung empire. The growth of empire focused government and judicial attention on constitutional and legal questions: this was just another question in
War of Independence (1775-1789) and the loss of the First British Empire. See Carla G Pestana, Protestant Empire, Religion and the Making of the British Atlantic World. (University of Pennsylvania Press, Philadelphia: 2011).
273 For surveys of the legal foundations of the colonial Church, see C C Augur Pearce, ‘Public Religion in the English Colonies’ (2000) 5 Ecclesiastical Law Journal 440; GWO Addleshaw ‘The Law and Constitution of the Church Overseas’ in Edmund R Morgan and Roger Lloyd (eds) The Mission of the Anglican Communion (SPCK & SPG, London :1948).
107 the same mix.274 The answers to the colonial church questions evolved over the course of the 19th century. By 1880, the leading constitutional historian, Alpheus Todd, could summarise answers in these words:
It is unlikely that the Imperial Parliament will entertain any further proposals for legislation affecting ecclesiastical questions in the colonies. The status of the Anglican Church in the British colonies is one of ecclesiastical independence. This was the natural and inevitable outcome of the decision of the Privy Council in 1865, in the case of Bishop Colenso, and of the judgment of the House of Lords in 1867, in Forbes v Eden.275 This case has been termed the charter of colonial church independence. It establishes and defines the powers of general synods, as being supreme in all matters over which civil courts have no jurisdiction. It is confirmed in Upper Canada by the decision in the case of Dunnet v Forneri,276 which declares that the court of chancery has no jurisdiction to inquire into the regularity of the excommunication of an individual, there being no question of property or civil rights involved.277
According to Todd’s summary, if there is ‘no question of property or civil rights’, there is no basis for a court to intervene in an internal church dispute. Very broadly stated, this remains the position in New South Wales today.
Particularly in the middle years of the 19th century, there was the issue of Privy Council appeals. In the legal minds of the colonial Church of England, access to the Judicial Committee of the Privy Council provided a bulwark against doctrinal innovation or aberrant church practice in the colonies. As we will see in the next chapter,
274 See Daniel O'Connell and Ann Riordan, Opinions on Imperial Constitutional law, (Law Book Sydney: 1971) for the wide compass of subject matter which required the Opinions of the Law Officers of the Crown. The authors say, ‘The system of Imperial Constitutional Law was not developed in the Courts so much as in the Law Officers’ Opinions. It was the practice that evolved out of these Opinions which eventually influenced the Courts, who followed, but did not invent, doctrines such as that of colonial legislative territoriality’ at vi. 275 (1867) LR 1 Sc & Div 568. 276 25 Grant Ch. Cas. 199. 277 Alephus Todd, Parliamentary Government in the British Colonies (Longmans & Co, London: 1880) 415.
108 when the South Africans constituted themselves as a new church in 1870, Privy Council decisions were expressly stated to be ‘not binding’ on the new church. The opposite position was taken by Australian Anglicans in 1961 when it entered into its own independent constitution. Nevertheless, Todd, in 1880, could state the appeal situation thus:
Inasmuch as it is the undoubted prerogative of the Crown to entertain appeals in all colonial causes, any ecclesiastical matters in dispute in any colony, which, prior to the Act 25 Henry VIII. C.19, would have been referred to the pope – and any doctrinal matter upon which judgment had been pronounced by a colonial law court – is capable of being adjudicated upon by the judicial committee of the Privy Council, in the shape of an appeal from the decision of the inferior court. But such an appeal ‘must come as a civil question, raised on a point of fact, brought from the civil courts in the colonies’ to the supreme legal tribunal in the mother country. And the judicial committee of the Privy Council expressly disclaims having any ‘jurisdiction or authority to decide matters of faith or to determine what ought in any particular to be the doctrine of the Church of England. Its duty extends only to the consideration of that which is by law established to be the doctrine of the Church of England, upon the true and legal construction of her articles and formularies.’ Within this limit, the judicial committee, in deciding upon ecclesiastical questions affecting the established church claim to pronounce authoritatively upon questions of faith and doctrine, and do not admit of appeals to holy scripture in opposition either to the articles and formularies of the church or to the provisions of an act of parliament.278 [emphasis added].
Four points emerge from this summary. Firstly, appeals to the Privy Council are on civil, not ecclesiastical grounds. Secondly, the Privy Council claims no jurisdiction to decide matters of faith or doctrine. Thirdly, to the extent that ecclesiastical or doctrine questions must be answered, the Privy Council restricts itself to the ‘true and legal’ construction of the ‘articles and formularies of the church’. The ‘articles’ refers to the Thirty-Nine Articles of Religion, and the ‘formularies’ refers to the Book of Common Prayer and the Ordinal. Usually, all three documents are published and bound together.
278 Ibid 415
109 Fourthly, appeals to ‘holy scripture’ will not be allowed to negate the court construed meaning of the Articles of Religion, the other formularies of the Church or an Act of Parliament.
In the sections which follow, various aspects of the Church of England are considered: 4.2 the meaning of ‘establishment’; 4.3 the nature and character of English religion; 4.4 the reception of English law in ‘plantations and colonies’; 4.5 the Church of England and the colonial church; and 4.6 key judicial decisions, 1850-1867.
4.2 The meaning of ‘establishment.’ The ‘established’ status of the Church of England provides jurisdiction and access to the Royal Courts of Justice for members of that church seeking to resolve internal disputes. Was that status and the corollary of access to the courts an essential part of the colonial manifestations of the Church of England? If yes, then in Australia, internal disputes could, in the end, be resolved judicially without the need to find some proprietary right or interest, as required by Cameron v Hogan, to give a court jurisdiction.
The meaning of the term ‘establishment’ is not clear. The Act of Settlement 1700 (UK) refers to the 'Church of England as by law established' and confirms and ratifies the laws 'securing the established religion'.279 Halsbury280 notes that the word is used in various senses. In one sense, any religious body recognised by the law and protected in its ownership of property and the exercise of any other rights given by law may be said to be ‘established.’ In another
279 The Professor of Constitutional Law in the University of Edinburgh has an interesting discussion on the ‘establishment’ of Presbyterianism in Scotland: see Colin R Munro, 'Does Scotland have an Established Church?' (1997) 4 Ecclesiastical Law Journal 639-645, and he concludes that it does. The Presbyterian church courts are treated as courts of the realm. 280 Lord Hailsham, Halsbury's Laws of England, (Butterworths, London: 4th ed, 1973- ) Title: ‘Ecclesiastical Law’ [334].
110 sense, 'established church' means the church established in any country as the public or state-recognised form of religion. In its more complete sense, the church is established when all the provisions of the church’s system or organisation have the sanction of law which establishes that system through the state and excludes any other system.281
Because of ‘establishment’, the laws governing the Church of England were also part of the common law of the kingdom and enforceable in the courts. With the founding of overseas colonies and the creation of Church of England congregations in those colonies, constitutional and legal questions centred around whether church rules and practices, legally enforceable in England, were also enforceable in the colonial courts and ultimately, on appeal to the Privy Council in London.
In the early years of New South Wales, the Church in England and in New South Wales, and the governing authorities assumed the Church in New South Wales, to be ‘established’. After all, the chaplains were on the government payroll, provision was made for lands to be set aside for church purposes and the Archdeacon was an ex officio member of the Legislative Council and ranked next after the Lieutenant-Governor. While the idea of an ‘established church’ may be foreign to 21st century Australian ears, this fact of the Church of England being the ‘established church’ was a starting point in the consideration by courts of the legal position of Church of England congregations in both South Africa and New South Wales. Reference was made to this notion in 1948, when Dixon J began his
281 In Marshall v Graham [1907] 2 KB 112,126, 'establishment means that the State has accepted the church as the religious body in its opinion, truly teaching the Christian faith and given to it a certain legal position and to its decrees it rendered under certain legal conditions, certain civil sanctions'; in David Walker, The Oxford Companion to Law (OUP, Oxford, 1980), the definition is 'a church legally recognised as the official church of the State or nation and having a special position in law.' The Church of England was established in some countries outside England prior to the passing of legislation severing links between that local church and the State e.g. Jamaica (1870), Ireland (1869) and Wales (1914).
111 judgment in Wylde v Attorney-General (NSW) ex rel Ashleford 282 with these words:
Notwithstanding judicial statements of a contrary tendency, the better opinion appears to be that the Church of England came to New South Wales as the established Church and that it possessed that status in the colony for some decades. The first chaplain and all the early chaplains formed part of the civil establishment. The governor’s instructions made it his duty to enforce a due observance of religion and to take steps for the due celebration of public worship as circumstances would permit.283 and the judges in Scandrett v Dowling284 consider the concept of ‘establishment’ in the course of delivering judgment. These cases are dealt with in detail in chapter 6. Historically, it appears that, for the first few decades, the governing authorities in New South Wales behaved as if the Church of England was established in the colony.285
282 (1948) 78 CLR 224. 283 Ibid 284. 284 (1992) 27 NSWLR 483 (Mahoney JA, 491; Priestly JA, 525.) 285 A leading Australian education academic records this example of belief and practice: ‘Twenty five years after the settlement was founded the governor could still inform the Secretary of State that the Rev Samuel Marsden, having refused to read a government order from the pulpit, had incurred his censure, "I have cautioned Mr Marsden to beware of resisting my Commands in this way for the future", Macquarie reported, "as he shall answer for it at his peril", and five years later Marsden was again reminded of his position when the governor refused him permission to take leave and proceed to England. Again, any attempt by the chaplains to create an organised Church could only succeed if it were sanctioned by the governor. It was Governor Macquarie and not the principal chaplain, who in 1810, instructed the chaplains that they were “to consider themselves at all times under the immediate control and superintendence of the principal chaplain and were to make such occasional reports to him, respecting their clerical duties, as he might think proper to require or call for”. It was in fact, a thoroughly Erastian arrangement and was based upon the general belief that the Church of England was the Established Church of New South Wales and was thereby entitled to the privileges and subject to the restrictions, inherent in that relationship. Whether the Church of England was ever an Established Church in Australia has been a matter of legal dispute for over 150 years but the essential point, as Kenneth Cable has pointed out, is that the Church of England "acted as if it were Established and it received privileges and monetary aid sufficient to justify that assumption". Governor and chaplain might disagree violently upon the policy they should follow but neither doubted the legality or correctness of the relationship in which they stood and the privileged position of the Church they both served.’ Albert G Austin, Australian Education 1788-1900 Church, State and Public Education in Colonial Australia, (Pitman & Sons, Melbourne: 1965) 6.
112 Any legal claim to ‘establishment’ by the Church of England in New South Wales was laid to rest in 1861 by the Full Court of the Supreme Court of New South Wales in Ex parte The Rev George King.286 In that case, after contrasting the position of the church members in New South Wales with the features of the established church in England, the court held that the Church of England was not established in the colony. In the eyes of the law, members of the Church of England were on the same footing as Presbyterian, Roman Catholic, Independent or Jewish congregations. Priestly JA, in Scandrett v Dowling, cites this case with approval.287
If then, as a matter of law, the Church of England was not established in New South Wales, and is to be treated on the same basis as other unincorporated associations, the constraints on judicial intervention will restrict any approach to the courts for aid in resolving internal disputes.
4.3 The nature and character of English religion The ecclesiastical separation of the English Church from European Catholicism was a watershed which coloured the political life and social fabric of England until at least the second half of the 19th century.288 The formal break came in 1534 when Parliament
286 (1861) 2 Legge 1307. 287 (1992) 27 NSWLR 483, 539. 288 In the later years of Henry Vlll (1509-1547) various Acts were introduced into the English Parliament to separate the English Church from Rome. The Act in Restraint of Appeals 25 Henry Vlll, c 12 (1533) prohibited appeals in ecclesiastical matters to Rome (which enabled Henry’s divorce case to be decided by Archbishop Cranmer in England); the Act of Dispensations 25 Henry Vlll, c 21 (1534) gave to the Crown the Pope’s right to give dispensations from obeying a law of the Church; the Act for the Submission of the Clergy 25 Henry Vlll, c 19 (1534) confirmed the earlier surrender in 1532 of Convocation to the Crown; the The Heresy Act 25 Henry Vlll, c xx (1534) provided that denial of the papal supremacy was no longer a heresy and An Act for the Establishment of the King's Succession 25 Henry Vlll, c 22 (1534) vested succession to the issue of Henry and Anne Boleyn. This legislative programme must be seen against the background of Henry’s dissolution of the monasteries, mostly due to the fiscal needs of the kingdom, see Arthur G Dickens, The English Reformation (Batsford, London: 1964) or, for a more recent study, Felicity Heal, Reformation in Britain and Ireland (Oxford University Press, Oxford: 2002).
113 recognised Henry Vlll as supreme head of the Church of England289 a result described as, ‘[a] national English Church had taken the place of two English provinces subject to the See of Rome’.290This ‘English Church’ was given its Protestant character during the reign of the ‘Boy King’ Edward Vl (1547-1553).291 After the Glorious Revolution of 1688, 292 the British Parliament determined not only the royal succession but also the religion of the realm.293
At the time of the New South Wales settlement in 1788, England’s religion was Christian, its theology Protestant and Reformed, rather than Roman Catholic. The official church was Episcopal in shape rather than congregational.294 The statute and common law of the
289 Act of Supremacy 26 Henry Vlll, c 1 (1534), ‘Be it enacted by authority of this present Parliament that the king our sovereign lord, his heirs and successors kings of this realm, shall be taken, accepted and reputed the only supreme head in earth of the Church of England called Anglicana Ecclesia, and shall have and enjoy annexed and united to the imperial crown of this realm as well the title and style thereof, as all honours, dignities, pre-eminences, jurisdictions, privileges, authorities, immunities, profits and commodities, to the said dignity of supreme head of the same church belonging and appertaining’. 290 Claire Cross, Church and People 1450-1660 (Fontana/Collins, Glasgow: 1976) 64. 291 Although Edward’s successor, his sister Mary, returned the English Church to the Roman fold during her short reign (1553-1558), his other sister, Mary’s successor, Elizabeth l (1558-1599) settled the Protestant character of the English Church for centuries to come. Elizabeth’s first Parliament met between January and May 1559 and passed The Act of Supremacy l Eliz l, c 1 (1559) similar in tenor to her father’s Act of 1534, followed by The Act of Uniformity 1Eliz 1, c 1 (1559) which enforced the use of the Book of Common Prayer. 292 For a summary of the events and extracts of key documents see E Neville Williams, The Eighteenth-Century Constitution 1688-1815 Documents and Commentary (Cambridge University Press, Cambridge: 1960). 293 Ibid 37: The coronation oath of William and Mary in 1689 contained these words: ‘Will you solemnly promise and swear to govern the people of this kingdom of England, and the dominions thereto belonging, according to the statutes in Parliament agreed on, and the laws and customs of the same? Will you to the utmost of your power maintain the laws of God, the true profession of the gospel and the protestant reformed religion established by law? And will you preserve unto the bishops and clergy of this realm, and to the churches there committed to their charge, all such rights and privileges as by law do or shall appertain unto them, or any of them?’ For a discussion of the coronation oath: see Graham McBain, ‘The Religion of The Queen--Time for Change’ University of Queensland Law Journal, vol 30 (2) 2011. 294 Under Cromwell’s Commonwealth (1649-1653), church polity was Presbyterian not Episcopal. At the Restoration (1660), Episcopal church government was reinstated and use of the Book of Common Prayer was made compulsory by the Act of Uniformity 1662. A person became a member of the clergy by ‘taking Holy Orders’ as provided for in the Ordinal. There are three services entitled The Form and Manner of Making, Ordaining and Consecrating of Bishops, Priests, and Deacons according to the order of the Church of England. The Ordinal is always printed and bound with the 1662 Book of Common Prayer.
114 realm provided the framework for all of this. This was the nature and character of the Church of England as it took root in the colonies of the British Empire during the 17th and 18th centuries.
4.4 The reception of English law in ‘plantations and colonies’ Did the law of England run in the King’s dominions beyond the Realm? Several centuries of exploration, conquest and settlement meant that this question was being addressed by the English Crown, Parliament and departments of state.295 As noted in section 4.2 above, the laws governing the Church of England were part of the law of the land and enforced as such in the King’s courts. There was no issue of ‘standing’ or requirement of a proprietary interest before a claimant could be heard. Where necessary, disputes were resolved in the King’s Courts. The legal arrangements for religion and the ‘establishment’ of the Church of England in a number of English settlements in North America and the settlements in the West Indies replicated those in England, at least until the American war of Independence.296
By the 1770s, Blackstone could write his often quoted passage on the reception of English law:
Our more distant plantations in America, and elsewhere, are also in some respect subject to the English laws. Plantations or colonies, in distant countries,
295 See John Baker, The Oxford History of the Laws of England, Volume VI 1483- 1558 (Oxford University Press, Oxford: 2003) 101; Alex Castles, An Australian Legal History (Lawbook , Sydney: 1982) 1; Bruce H McPherson, The Reception of English Law Abroad (The Supreme Court of Queensland Library, Brisbane: 2007); Richard Helmholtz, The Oxford History of the Common Laws of England: The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford University Press, Oxford: 2004). 296 The first permanent English settlement in North America was in Virginia in 1607 and from 1610, official provision was made for worship according to the doctrines of the Church of England. There were penalties for non-attendance at services, parish structures were created and the 1603 Ecclesiastical Canons applied to church life. The same model was adopted in Georgia, The Carolinas(1706), Maryland (1702), New York (1693), Nova Scotia and the West Indies. While the ministers were episcopally ordained there were no bishops in these colonies. The colonial governor granted licences and exercised supervision. The American War of Independence (1775-1783) ended these arrangements.
115 are either such where the lands are claimed by right of occupation only finding them desert and uncultivated, and peopling them from the mother-country; or ceded to us by treaties. And both these rights are founded upon the law of nature, or at least upon that of nations. But there is a difference between these two species of colonies, with respect to the laws by which they are bound. For it has been held [Salk. 411 at 666], that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject, are immediately there in force, But this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law, as is applicable in their own situation and the condition of an infant colony; such, for instance, as the general rules of inheritance, and of protection from personal injuries.297
Did the Blackstone summary of the reception of English law include the full extent of ecclesiastical law as administered in the English Courts? Until the court reforms in the second half of the 19th century, the ecclesiastical law jurisdiction included probate, marriage and divorce, tithes, defamation, and disciplinary prosecutions involving the laity. McPherson298 provides a fascinating account of the process and the content of the English law which was received in the various colonies of the British Empire.
In the case of New South Wales, for the rules of the local manifestation of the Church of England to be justiciable as in England, the Church had to be ‘established’ and the full extent of ecclesiastical law of England received in the colony. After the passage of a few years it was clear that neither condition was satisfied. The local Church of England was in the same position as the other Christian churches, that is, a voluntary unincorporated association. This meant, as we will see in chapter 6, access to the
297 William Blackstone, Commentaries on the Laws of England (Clarendon Press, Oxford: 1765); for comment on the source of this doctrine, see Bruce McPherson, 'The Mystery of Anonymous (1722)' (2001) 75 Australian Law Journal 169-180; see also Bradley Selway, The Constitution of South Australia (The Federation Press, Sydney: 1997) 1. Australia is a settled colony not a conquered or ceded colony, see Cooper v Stewart (1889) 14 App Cas 286 (PC); Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141;Mabo v Queensland (No2) (1992) 175 CLR 1 did not alter this characterisation. 298 McPherson, above n 295.
116 courts for resolution of internal disputes is restricted by the ‘proprietary interest’ requirement.
4.5 The Church of England and the colonial church: a changed relationship
4.5.1 Overview The middle years of the 19th century marked fundamental changes in the relationship between the Church of England and her daughter churches in the colonies. Daw provides a considered examination of the structure of imperialism and church-state relations for the period 1846-1856. He captures the central issues in these words:
In the mid-nineteenth century, the Anglican Church, established by law in England, Wales and Ireland, was widely believed to be similarly privileged throughout the empire. Whether it was in fact ever legally established, and hence part of the structure of the state, was something of a moot point; but in the late eighteenth century and the early decades of the nineteenth century, there was scarcely any dispute about it. The few colonial bishops who were sent out prior to 1840 were appointed, however reluctantly, by the imperial government, just as their brethren of the English episcopate were. They were treated as officers of the state, given status as such, and were generally supported financially by it. And yet, there was no adequate definition of the relations between church and state in the empire. Any such definition would have had to clarify the situation without separating the colonial church from the mother church; without encroaching upon apparent royal prerogatives; and without interfering in the colonies in matters of purely local concern.299
In Daw’s view, establishment of the church in the colonies was assumed and acted upon until the second half of the 19th century. Despite the existence of Church of England congregations in the colonies of the British Empire, no bishop was consecrated for
299 Ellis D Daw, Church and State in the Empire: the Evolution of Imperial Policy 1846-1856 (Faculty of Military Studies, UNSW, Canberra: 1977) 1. A contemporary source for comment on these imperial policy and church-state relations issues can be found in various issues of the Colonial Church Chronicle.
117 appointment outside the United Kingdom until 1784.300 By the mid- nineteenth century, the number of Church of England members in Canada and in Australia was sufficient for them to press for action from the imperial Parliament. Those church members wanted some form of legal recognition from the ‘home’ church, as well some means of securing a proper legal foundation for the colonial churches. In England, ‘church rules’ were made by Parliament and enforced in the courts. In the colonies, the same ‘church rules’ applied, to the extent possible, but were they enforceable in the courts? A related issue was the ability of colonial churches to meet and frame local rules for the good order and government of the church. One pressing local concern was the ability of the local church, as an unincorporated association, to hold and manage real property.
From the late 1840s, there was general interest in England in reforming relationships with her colonial possessions. This interest included the relationship of the Church of England with its colonial manifestations. Attempts were made to have the imperial Parliament pass framework legislation to secure the position of the Church of England in the colonies and particularly in relation to the management of the internal affairs of the colonial churches. Gladstone301 was drawn into this debate and his position as a founding member and treasurer of the Colonial Bishoprics Fund (founded 1841) gave him particular insights. The House of Commons debate on the Australian Colonies Bill on 6 May 1850 provided Gladstone with an opportunity to address a colonial
300 Following the American Revolution (1775-1783), the Thirteen Colonies were no longer under British rule but the need for a bishop to care for Anglican congregations remained. In 1784 a bishop was consecrated for America, followed by two more in 1787 and a third in 1790. Additional colonial dioceses were erected in Quebec, in 1793; Calcutta, in 1814 (comprising all the area governed by the British East India Company); Barbados and Jamaica, in 1824; Australia, New Zealand and Cape Town, in 1847. Letters Patent were issued in all cases until 1863. See William R Curtis, The Lambeth Conferences (AMS Press, New York: 1968) 49 and Clarke, above n 112, 44. 301 William Ewart Gladstone (1809-1889), four times Prime Minister of Great Britain. See, Roy Jenkins, Gladstone: A Biography, (Random House, New York: 1997); G Matthew, Gladstone. 1809-1898 (Clarendon Press, Oxford; 1997); Michael R D Foot, The Gladstone Diaries (Clarendon Press, Oxford: 1968-1994).
118 problem.302 He proposed the addition of the ‘Colonial Church Clause’ which would allow members of the Church of England in the Australian colonies to meet together by mutual consent ‘to make all such regulations as may be necessary for the better conduct of their ecclesiastical affairs and for the holding of meetings for the said purpose’.303 Gladstone failed to persuade the House by 187 votes to 102 to insert the clause. Had this amendment succeeded it would have freed colonial churches to convene a representative assembly for local decision making without running the risk of offending the ancient law requiring the King’s consent to hold a convocation or synod.
A year later, in 1853, the Archbishop of Canterbury (Sumner), steered a Bill through the Lords which was then rejected by the Commons.304 Although defeated, the Bill formed the basis for Church constitutions in the Australian colonies and the Canadian provinces.305 For some years after, other Bills were introduced into either the Lords or the Commons but it proved impossible to pass a colonial church Bill through both Houses.306
302 See, John Powell, Gladstone and the Colonial Church Clause: An Episode in Church-State Relations, 1849-1850, in Tradition and Formation: Claiming an Inheritance: Essays in Honour of Peter C. Erb, ed. Michel Desjardins and Harold Remus. (Pandora Press, Ontario: 2008) and Carey, Hilary M, ‘Gladstone, the Colonial Church and Imperial State’, in Church and State in Old and New Worlds (Brill, Leiden: 2011). 303 The clause was: ‘And whereas doubts have existed as to the rights and privileges of the bishops, clergy and other members of the United Church of England and Ireland in regard to the management of the internal affairs thereof in the said colonies – be it enacted, that it shall be lawful for the bishop or bishops of any diocese or dioceses in the said colonies or in any colony which Her Majesty shall, by Order in Council, declare to be joined to them for the purposes next hereinafter described and the clergy and lay persons, being declared members of the Church of England, or being otherwise in communion with him or them respectively, to meet together from time to time and at such meeting, by mutual consent, or by a majority of voices of the said clergy and laity, severally and respectively, with the assent of the said bishop, or of a majority of the said bishops, if more than one, to make all such regulations as may be necessary for the better conduct of their ecclesiastical affairs and for the holding of meetings for the said purpose thereof.’ 304 The text of Sumner’s Bill has been copied as an appendix to this thesis. 305 Clarke, above n 112, 10. See also Arthur de Quetteville Robin, Charles Perry, Bishop of Melbourne (University of Western Australia Press: 1967), where ch 5 describes how Bishop Perry obtained for Victoria the first colonial legislation anywhere in the British Empire for the local regulation of the Church of England. 306 Bills such as the Colonial Bishops Bill 1853, Colonial Church Regulation Bill 1853, Colonial Bishops Act Extension Bill 1853, Colonial Clergy Disabilities Bill
119
Ultimately, the grant of self-government to a colony usually meant that the imperial Parliament ceased to play an active part in the internal government of a colony. This, coupled with the effect of the Privy Council appeal cases from South Africa, removed any need for imperial legislation. It was now left to the Church in each colony to make its own arrangements for management.
4.5.2 Australia On the Church of England in New South Wales front, three events bear on the thesis topic. First, one consequence of the Bigge Report307 was the appointment, in 1824, of an archdeacon to supervise the clergy of the colony.308 The new constitution for the colony provided an ex officio seat for the Archdeacon which was filled on the appointment of Scott. This constitutional provision strengthened arguments in favour of establishment of the church. However, by 1836, when William Grant Broughton, was appointed the Bishop of Australia, he was not an ex officio member of the Legislative Council.309The letters patent appointing Broughton gave
1854, Clergymen (Colonies) Bill 1863, Colonial Bishops Bill 1866 and the Colonial Bishops Bill 1867, all failed. The text of these Bills can be found in Thomas C Hansard, Hansard’s Parliamentary Debates, vol 120-178, (London: 1829-1891). 307 John Thomas Bigge’s 1822 Report of the Commissioner of inquiry into the State of the Colony of New South Wales to the House of Commons. 308 The British Government commissioned John Thomas Bigge to conduct a Commission of Enquiry into the state of the colony of NSW and the colony of Van Dieman’s Land. He made three reports to the House of Commons: the state of the colony of NSW; the judicial establishments of NSW and Van Diemen’s Land; and the state of agriculture and trade in the colony of NSW. As part of the first report, he recommended that the status of the Church of England be made more regular. As a result, in 1824 the two colonies became an archdeaconry of the Diocese of Calcutta. Thomas Hobbes Scott, Bigge’s secretary, was appointed the first Archdeacon of Australia under the jurisdiction of the Bishop of Calcutta. The Archdeaconry was created as a corporation sole. As Archdeacon, Scott was a member of the Legislative Council, ranking next behind the Lieutenant Governor. He had almost complete control of all church matters and with his appointment as King’s Visitor to schools by the Colonial Office, he was responsible for all public education throughout the colony. A key development, but beyond the scope of this thesis, is the impact of Governor Bourke’s 1836 Church Act which provided subsidies for salaries and church construction for both Anglicans and other denominations 309 When Scott retired in 1829, he was succeeded by Broughton who later became the first Bishop of Australia, in 1836. Tasmania was separated from the Diocese of Australia in 1842. In 1847 the Diocese of Australia was divided into four separate dioceses of Sydney, Adelaide, Newcastle and Melbourne.
120 him jurisdiction over all clergy of his diocese and he was authorised and empowered to ‘punish and correct the aforesaid chaplains, ministers, priests and deacons according to the Ecclesiastical Laws of England, subject to a right of appeal to the Archbishop of Canterbury’. This discipline power in Broughton’s letters patent was similar to the wording in Bishop Gray’s letters patent which came under scrutiny in the South African cases considered in the next chapter.
Second was, the 1850 Bishops Conference310 where the overriding concern of the conference was the need to establish a proper means for management of the Church in Australia. There were three possibilities: an appeal to the British authorities for imperial legislation to authorise local church assemblies and for those assemblies to have power to make binding rules for the church in Australia; a second course was to make the same appeal to the colonial government; the third possibility was to form local church assemblies without any government legislative assistance. As we have seen in the previous section, the first possibility proved fruitless. In Victoria, Tasmania and New South Wales, the colonial governments passed legislation. In Queensland, South Australia and New Zealand, the church made its own arrangements by way of ‘consensual compact’.311 In Scandrett v Dowling 312 the plaintiffs used the Act of Parliament as the basis of their claim that the rules of the Anglican Church in New South Wales were statutory in character and thus binding on all members. This claim could not be made in South
310 After the appointment of Broughton as Bishop of Australia in 1836, three new Australian Sees were created in 1847, Newcastle, Melbourne and Adelaide. The Bishop of Australia was reconstituted Metropolitan of Australasia and Bishop of Sydney. Broughton convened a conference of the six Australasian Bishops, Broughton of Sydney, Selwyn of New Zealand, Nixon of Tasmania, Short of Adelaide, Perry of Melbourne and Tyrrell of Newcastle. The conference met in Sydney for the whole of October 1850. See Giles, above n 118. 311 See Robin, above n 305, where ch 5 describes how Bishop Perry obtained for Victoria the first colonial legislation anywhere in the British Empire for the local regulation of the Church. The legislation was based on Archbishop Sumner’s Bill of 1853 which failed in the Commons. A copy of Sumner’s bill is an appendix to this thesis. 312 (1992) 27 NSWLR 483.
121 Australia or Queensland where ‘consensual compact’ was the foundation stone of church government.
The 1850 Bishops Conference decided that the Canons of 1604 be adopted as far as possible in the Australian church.313 They noted that cases would arise where adoption was impossible because the canon was out of date in England, or because of a particular condition in the new colony. This was a conscious application by the bishops of the Blackstone principle. With one exception, the conference minutes were signed by all the bishops.314 The exception was a consequence of the Gorham case,315 dealt with in section 4.6 of chapter 4.
The third matter to note is the ‘Nexus Opinions.’316 The General Synod of the Church of England in Australia in 1905 agreed to examine the legal nexus between the various Australian dioceses and the Church of England. Senior Counsel in Australia and England agreed that the Church of England churches in Australia were organised on the basis that they are part of the Church of England, not churches ‘in communion with’ or ‘in connection with’ the Church of England.317 This meant that changes to doctrine and practice in England carried through to Australia unless some local situation made the change inapplicable. This nexus factor contributed to the desire for a separate Australian Church constitution in 1961, with
313 These Canons formed the body of church rules and together with the Thirty-nine Articles of Religion and the Book of Common Prayer governed the life of the Church of England. 314 See Giles, above n 118, 237 for the minutes of the conference. 315 (1850) Moore's Special Reports 462. In Gorham, the Privy Council decision on the meaning and effect of the baptism service, sharply divided church opinion. At the conference, Perry of Melbourne wrote his own statement. His theological sympathies were for Gorham and he supported the principle of Crown and State as the foundation for church government. The others were more in sympathy with the Bishop of Exeter who preferred a church constitution where bishops alone could determine doctrine and practice, unfettered by State control. The division over the theological meaning of baptism remains. 316 Reprinted in Canon Law Commission, Canon Law in Australia (Church of England in Australia Trust Corporation, Sydney: 1981). 317 See Giles, above n 118, 158 for discussion. The Australian counsel were Adrian Knox and J Musgrave Harvey and the English counsel were Arthur Cohen, Robert Cecil and A B Kemp.
122 provision in it for resolving internal disputes. This aspect is taken up in chapter 7.
Although the Church of England may have been the ‘established’ Church in the early days of the colony of New South Wales, any Anglican precedence in the New South Wales colonial government structures was lost by the 1850s. Constitutional self-government for New South Wales in 1855 gave no church an assured place in the government sun. The Church of England in New South Wales was a voluntary association on the same legal footing as any other voluntary organisation.
Before leaving this section, short note should be taken of the balance of power between the diocesan synods, the provincial (State) synods and the general (national) synod. Giles states ‘On Catholic principles the Diocesan Synod would be subject to the Provincial Synod, and the Provincial Synod to General Synod of Australia.’318 But, the separate development of the Australian colonies with their separate identities and the dominant role of the capital city diocese in each colony meant that the Catholic ideal was not followed. In fact the opposite occurred. Because diocesan synods have plenary power over most subject areas and provincial legislation only applies in a diocese with the consent of that diocese, there is little practical legislative need for provincial synods.319 The Diocese of Sydney remains the dominant Anglican voice in New South Wales.320
318 Giles, above n 118, 154. 319 In New South Wales, Provincial Synod meets every five years and some state provinces have converted the synod into a conference. 320 This dominance has not been without criticism. See, Muriel Porter, Sydney Anglicans and the Threat to World Anglicanism (Ashgate, London: 2011).
123 4.6 Key Judicial Decisions 1850 to 1867 This section looks at legal cases involving the Church of England in the period under review in New South Wales. Each case bears on the Church of England in New South Wales and access to the courts for resolution of internal disputes. The position of the Church of England in the public life of England was strong in the early decades of the 19th century.321 After 1815 (Waterloo), the Anglican monopoly on English public life began to reduce. In the words of one writer the ‘Church of England lost its previous comfortable position as the one respectable, politically-dominant creed with a virtual monopoly of higher education and intellectual life’.322 Legislation removed disabilities from non-Anglicans to hold municipal offices, university posts and standing for Parliament.323 This loss of political dominance
321 A leading historian described the state of ‘Religion and the Churches’ at the end of the Napoleonic Wars (1799-1815) in these words: ‘The established Church of England, richly endowed and privileged, had in 1815 at least the external support of almost the whole of the upper class, and, in most country districts, of the greater part of the population. There was a small Roman Catholic minority, denied full civil rights, but living quietly and without political importance. Irish immigration increased the number of Roman Catholics, but most of these immigrants were poor people whose troubles were economic rather than political. There was a much larger minority of protestant dissenters, also without full civil rights, though less hampered in practice by disabilities than the Roman Catholics. In Wales, and in some parts of England, there were more dissenters than churchmen; in Scotland, Presbyterianism was far stronger than any other denomination. Except in the west of England and parts of East Anglia and the north, the nonconformists belonged mainly to the shopkeeping and lower middle class of the towns. From the chapter ‘Religion and the Churches’ in E L Woodward , The Age of Reform, 1815-1870, (Clarendon Press, Oxford:1938. Woodward was Professor of Modern History, Oxford, and the volume is Xlll in The Oxford History of England. 322 A O J Cockshut, Anglican Attitudes: A study of Victorian Religious Controversies (Collins, London: 1959) 9. 323 The Clarendon Code was a series of four statutes which re-established the supremacy of the Church of England after the Restoration of Charles ll in1660. This Code effectively ended the toleration of Non-conformists which was a mark of the Commonwealth period (1653-1659) under Oliver Cromwell (1599-1658). The Clarendon Code statutes were (1) Corporations Act 13 Charles ll, St 2 c1 (1661), which excluded dissenters and non-conformists who had not taken the Lord’s Supper according to the rites of the Church of England within the previous year from municipal office.; Act abolished in 1871. (2) Act of Uniformity 14 Charles ll, c4 (1662): imposed the use of the Book of Common Prayer on all ordained preachers. Drove out a substantial number of clergy and failed to secure uniformity (936 clergy deprived of livings and with those forced out since 1660 a total of about 1800 clergy). (3) Conventicle Act 16 Charles ll, c 4 (1664): penalties for attendance at religious meetings not conducted according to the Book of Common Prayer. There were 1670 penalties for conventicles held in private homes. (4) Five Mile Act 17 Charles ll, c 2 (1665): forbade Puritan ministers to teach in a school or come within five miles of a town in which they had held office, as Church of England clergy, unless they gave an oath not to speak against the Church of England. The Code
124 may be the reason why efforts in the 1850s and 60s to obtain imperial legislation to give the colonial church a framework for governance failed, but it is beyond the scope of the thesis to explore this. However, in the same two decades, the courts provided some answers to the pressing questions of the status and powers of the colonial Church of England.
Six cases fill out the conclusions reached by Todd in the quotations set out in section 4.1 of this Chapter. Each case is cited in the two twentieth century New South Wales Anglican Church cases of Wylde v Attorney-General (NSW) ex rel Alshelford and Scandrett v Dowling. In chronological order the cases are: 1. 1850 Gorham v Bishop of Exeter 324 2. 1857 The Queen v the Provost and Fellows of Eton College325 3. 1863 Williams v Bishop of Salisbury326 4. 1863 Long v Bishop of Cape Town 327
5. 1865 Re Natal, Lord Bishop of 328 6. 1867 Forbes v Eden 329 The first case has been described as the Erastian crisis.330 George Gorham was an elderly clergyman who was suspected by his Bishop, Phillpotts of Exeter, of not holding the correct doctrine on baptism. Gorham was indicted for heresy and found guilty by an ecclesiastical court (Court of Arches). He appealed to the Judicial Committee of the Privy Council and was acquitted.331 The Archbishops of Canterbury
was named after Edward Hyde, 1st Earl of Clarendon, Lord Chancellor to Charles ll, who enforced the laws despite his personal opposition to some of the provisions. By the mid 1800s these laws were not enforced or repealed. 324 (1850) Moore’s Special Reports 462. 325 27 Law J Rep (NS) QB132. 326 (1863) 2 Moo PCCNS 375,PC 327 1 Moore NS 411; 15 ER 756. . 328 (1865) lll Moore NS 115; (1865) 16 ER 43. 329 (1867) LR 1 Sc & Div 568. 330 Thomas Erastus (1524-83) a Swiss theologian had attributed to him the view that the state should direct and control the affairs of the church in a specific area and should punish all offences ecclesiastical and civil where all the citizens in one country adhered to a single religion. 331 Gorham v Bishop of Exeter (1850) Moore’s Special Reports 462. See Owen Chadwick, The Victorian Church Part One 1829-1859 (SCM Press, London:1987) 250 for church background and analysis of this crisis.
125 and York, sitting as Assessors, concurred with the conclusion. The decision reverberated around the empire with the central question: is the ‘Church’ an autonomous body deciding its own doctrine and laws or is it dependent on the State to decide these questions?
The second case, The Queen v the Provost and Fellows of Eton College 332 clarified the status of a ‘colonial bishop.’ The Royal College of Eton held the right of advowson to the Church of Stratford Mortimer. At the time of the dispute, the incumbent, HJC Harper, had been appointed to be Bishop of Christchurch in the colony of New Zealand. If the incumbent had been appointed to a bishopric in England, the Crown could fill the vacancy at Stratford Mortimer, rather than the College. Did this rule apply where the appointment is to a colonial bishopric?
At that time, colonial bishops were appointed to their diocese by the Crown by Letters Patent. The powers conferred on a bishop by Letters Patent included discipline powers over clergy, a right to hold property and a right to sue or be sued. Did the colonial bishop have the same powers as their English and Irish bishop counterparts who were bishops of an Established Church in England and in Ireland. Did colonial bishops have the same rights, powers and duties and in particular, did they have coercive powers over their clergy to enable internal disputes to be resolved? Lord Campbell, delivering the judgment in favour of the defendant College said at 137:
The Bishop of Christ Church in New Zealand has nothing in common with them, except that he is a Protestant bishop canonically consecrated and of the Anglican Church. We do not question the power of the Queen to create a bishopric in any part of her dominions, except where, as in Scotland, such an exercise of prerogative is forbidden. In a newly settled colony such an Church of England, with the exercise of prerogative is lawful; but we must bear in mind that in such a colony there is no established church and that the ministers of religion
332 The Queen v The Provost of Eton College 27 Law J Reports (NS)QB 132; (1857) 120 ER 228.
126 in communion with the Church of Scotland, and with the Church of Rome, in the absence of any imperial or colonial legislation on the subject are all upon an equal footing. If, by legislative enactment, there were a fund created for the support of "the Protestant clergy in New Zealand" according to the opinion given by the Judges in the House of Lords upon the Canada Reserves, the Episcopalian and Presbyterian clergy in the colony would be entitled to share it in equal proportions. It has likewise been held that the Crown may create an ecclesiastical Roman Catholic corporation in an English colony as well as a Protestant bishopric. The Bishopric of Christ Church in New Zealand has been created purely by the prerogative of the Crown without any such statute as 53 Geo.lll c 155 or 3 & 4 Will 4. c 85 which authorised the Crown to grant jurisdiction to bishops to be created in India, and to establish a hierarchy in that country, as had been before done in Jamaica and other parts of the dominions of the crown in the West Indies…; but there is great difficulty in seeing that the Bishop of Christ Church in New Zealand has any jurisdiction except over those who voluntarily submit to his jurisdiction; and he really seems in this respect to be in the situation of the "titular bishop" whose promotion to be a bishop, all the authorities agree gives the Crown no right to present to his preferment.
Thus the College retained the right to present to the living as if the incumbent had died. This restriction on the efficacy of Crown Letters Patent was made more explicit in the fourth case, Long v Bishop of Cape Town, noted in this section.
Priestly JA, in Scandrett v Dowling, referred to Ex parte Ryan (1855), where it was held that the Church of England was not established in New South Wales, and then, referring to The Queen v the Provost and Fellows of Eton College said, ‘Soon afterwards a case to the same effect was decided in the Queen’s Bench in England’.333
The third case concerned doctrine. In 1860 a volume of essays was published by seven prominent members of the Church of England. With one exception, they were all clergy.334 The bishops were
333 Scandrett v Dowling 27 NSWLR 483, 535. 334 The volume was entitled Essays and Reviews. The authors were Mark Pattison, Benjamin Jowett (Master of Balliol College), Professor Baden-Powell, Frederick Temple, later Archbishop of Canterbury and at the time, Headmaster of Rugby, Professor Rowland Williams, Professor H B Wilson and C W Goodwin. Victor
127 unanimous that the clergy who held the views in the essays could not honestly subscribe to the 39 Articles of Religion, subscription being a precondition for ordination. Williams was accused for his article on biblical criticism and Wilson on his article on the nation church. They were found guilty by the Court of Arches and suspended but on appeal, they were acquitted by the Privy Council.335 Again, the question was raised, who should decide questions of doctrine? Should it be the Church, that is the bishops, or should it be the Queen’s judges in the Royal Courts?
The fourth case, Long v Cape Town (Bishop of)336 was an appeal from Cape Town to the Judicial Committee of the Privy Council. It raised the issue of the force and effect of Letters Patent appointing colonial bishops. The Privy Council confirmed the Cape Town Supreme Court judgment which held that the Letters Patent, so far as they purported to confer coercive jurisdiction or to empower the Bishop to constitute a court for the trial of ecclesiastical offences, were void as being beyond the authority of the Crown who issued the Letters Patent. Long’s case is considered in more detail in the next chapter.
The fifth case, Re Natal, Lord Bishop of 337 raised again the force and effect of the Letters Patent appointing a colonial bishop. In 1862, the Bishop of Natal, John William Colenso, was charged with holding erroneous doctrine and found guilty by a church tribunal and deposed by the Bishop of Cape Town (Robert Gray). On appeal to the Privy Council, it was held that Gray had no power to try Colenso as the Letters Patent appointing Gray gave him no coercive
Shea, (ed), Essays and Reviews: the 1860 Text and its Reading (University Press of Virginia, Charlottesville: 2000). 335 Williams v Salisbury (Bp) (1863) 2 Moo PCCNS 375, PC; see Owen Chadwick, The Victorian Church Part Two 1860-1901 (SCM Press Ltd, London: 1987) 75, for church background and analysis of this crisis. 336 (1863) 1 Moore NS 411;15 ER 756 (heard February 1863) 337 (1865) III Moore NS 115;(1865) 16 ER 43 (heard December 1864); see Chadwick, above n 332, 90 for church background and analysis of this crisis.
128 jurisdiction over the clergy of his diocese. This case is considered in the next chapter.
The sixth case, Forbes v Eden338 considered in detail in chapter 2, section 2.3, dealt with the Scotch Episcopal Church which was not established and therefore its rules did not have the force of law. In a dispute between a minister of the Church and the governing authorities, the court held that there must be a property interest to give jurisdiction or if a trust question arises, the court will see to the due administration of the trust.
4.7 Conclusions In summary, even though the Gorham and Williams cases were concerned about the ‘internal discipline’ of clergy, the secular courts had the final say. This was because the rules of the Church of England were part and parcel of the law of England and thus enforceable in the courts. The Long and Colenso cases concerned the construction of Letters Patent appointing colonial bishops. In Long and reiterated in Colenso, members of the colonial church did not have the same access to the secular courts as members had in England. Essentially, this was due to the fact in the colonies, the status of church rules were on the same footing as the rules of any other voluntary association. Associations had to make their own internal arrangements for the resolution of internal disputes. Any ‘appeal’ to the courts depended on satisfying certain jurisdictional thresholds. The Eton College case made the same distinction between bishops in the established English church and a bishop in a colonial church. The same set of facts in the English church was justiciable in the Royal Courts but the same facts in a colonial church were not automatically justiciable. In any particular colony, the availability of judicial intervention to resolve internal disputes depended on other factual elements.
338 (1867) LR 1 Sc & Div 568.
129
The pressure of the six cases just noted, and the relationships and issues represented by them, were all part of the background to the first gathering of all Anglican bishops in 1867.339 The first Lambeth Conference declined to constitute itself as a pan-Anglican synod with international authority to solve any internal church dispute which might arise in any of the independent colonial churches of the Anglican Communion. The relationship of the Church of England and her daughter Churches was consensual rather than contractual. Halsbury 340 describes the Anglican Communion as ‘a fellowship of churches historically associated with the British Isles which have certain characteristics in common, including standards of faith and doctrine and, to some extent, forms of worship’. Another phrase which is commonly found in recent Anglican documents to describe the relations between national Anglican Churches is ‘bonds of affection’.
The purpose of this chapter was to consider some fundamental ideas shaping the 19th century Church of England and to track the change in legal status and rights of the colonial church. The ‘established’ character of the Church of England necessitated the involvement of
339 On 24 September 1867, 144 Anglican bishops assembled at Lambeth Palace for the first Lambeth Conference convened by Archbishop of Canterbury. They met partly to deal with Canadian problems, with issues surrounding Bishop Colenso of Natal and with questions raised by the publication of Essays and Reviews. See William Curtis, The Lambeth Conferences (AMS Press, New York: 1968) 125. The 1865 letter from the Canadian Church to Charles Thomas Longley, Archbishop of Canterbury and Primate of All England began: ‘We, the Bishops, Clergy and Laity of the Province of Canada, in Triennial Synod assembled, desire to represent to your Grace, that in consequence of the recent decisions of the Judicial Committee of the Privy Council in the well-known case respecting the Essays and Reviews, and also in the case of the Bishop of Natal and the Bishop of Cape Town, the minds of many members of the church have been unsettled or painfully alarmed; and that doctrines hitherto believed to be scriptural, undoubtedly held by the members of the Church of England and Ireland, have been adjudicated upon by the Privy Council in such a way as to lead thousands of our brethren to conclude that, according to this decision, it is quite compatible with membership in the Church of England to discredit the historical facts of Holy Scripture, and to disbelieve the eternity of future punishment’. Also see Alan M Stephenson, Anglicanism and the Lambeth Conferences (SPCK, London: 1978). 340 Lord Hailsham, Halsbury's Laws of England (Butterworths, London: 4th ed, 1975) vol 14 [313].
130 the apparatus of government. Whitehall and Lambeth Palace were inextricably entwined ‘at home’ but, as a result of some Privy Council decisions and the grant of self-government to a colony, this interdependence became far less important in the colonies of the British Empire.
The next chapter looks at the South African contribution to ‘church dispute’ jurisprudence.
131
5 THE CONTRIBUTION FROM SOUTH AFRICA
5.1 Introduction For reasons as yet undiscovered, in the middle decades of the 19th century, the Cape Colony.341 spawned a number of landmark ‘church internal dispute’ cases, which dramatically altered the legal principles which governed Church of England congregations in the colonies of the British Empire. As a number of the cases were finally decided by the Judicial Committee of the Privy Council, the decisions carried the weight of precedent throughout the Empire. While the efficacy of the Letters Patent appointing colonial bishops came under the spotlight, the fundamental change was access to the courts for the resolution of disputes.
This thesis examines judicial intervention in the affairs of unincorporated religious associations, with particular reference to the Anglican Church in New South Wales. The South African cases considered in this Chapter provide the common law foundation for the approach taken by Australian courts when resolving an internal church dispute. The justices of the High Court of Australia in Wylde v Attorney-General (NSW) ex rel Ashelford 342 and the judges in the New South Wales Court of Appeal in Scandrett v Dowling 343in their judgments drew heavily on precedents established by the cases to be considered.
341 The colony traces its origins to 1488, when Bartolomeu Dias, a Portuguese on a voyage of discovery for a southern passage to the (East) Indies, was the first European to make a landfall in Southern Africa. Dias was followed by the Dutch, the French and the English. By 1652, the Dutch through trade via the medium of the (Dutch) East India Company established a settlement under the leadership of Jan van Riebeck. There was a similar but smaller involvement by the British from 1602 with the British East India Company. The Dutch settlement became a Dutch colony with a significant number of British settlers. In 1795, the British assumed control of the Dutch colony at the Cape of Good Hope and by the Final Act of the Congress of Vienna 1815, the colony became British along with Malta, Tobago and Ceylon. In 1832, by Order in Council and Letters Patent to the then Governor, a colonial legislature was established. 342 (1948) 78 CLR 224. 343 (1992) 27 NSWLR 483.
132 The three key South African appeal cases are: in 1863, Long v Bishop of Cape Town,344 in 1864, In Re Lord Bishop of Natal 345 and in 1882, Merriman v Williams. 346 Before 1832, no bishop exercised direct episcopal jurisdiction over the clergy of the Church of England in the Cape Colony.347 Ecclesiastical jurisdiction was vested in the Governor so, for example, the instructions to Sir Charles Somerset dated 3 November 1813 contained these words:
And it is our will and pleasure that you, or in your absence our Lieutenant- Governor, or the person for the time being having the government of the said settlement, shall have the power of collating to benefices, granting licenses for marriages and probates of Wills, commonly called the Office of Ordinary. And it is our express will and pleasure, and you are hereby required not to grant deputations for the exercise of the said powers to any person or persons whatsoever in the said settlement under your government.348
It should be noted that before the reforms to the English court system in the second half of the 19th century, ecclesiastical courts had jurisdiction over probate, marriage and divorce, tithes, defamation, and disciplinary prosecutions involving the laity. This explains the reference to marriage and wills in the Governor’s instructions.349
These English congregations were treated as ‘belonging to the Established Church of England, and with a view of giving them a status, the governor and council passed several Ordinances which became part of the statute law of the Colony’.350 For the whole of this period, Church of England congregations were dependent upon the occasional visits of bishops on their way to and from India and other
344 (1863) 1 Moore NS 411; 15 ER 756. 345 (1865) lll Moore NS 115; 16 ER 43 346 (1882) 7 App. Cases 484. 347 By a 1633 Order in Council of Charles l, the Bishop of London was responsible for all Anglican chaplaincies overseas where no local bishop had been appointed. 348 Long v Cape Town (Bishop of) (1863) 1 Moore NS 411; 15 ER 756, 757. 349 For further material on the ecclesiastical jurisdiction see R Brian Outhwaite The Rise and Fall of the English Ecclesiastical Courts, 1500–1860, (Cambridge University Press, Cambridge: 2006). 350 Clarke, above n 112, 320.
133 parts of the British Empire351 for episcopal ministration, that is, for the service of Confirmation and for pastoral care of the clergy. This need for a bishop in the Cape Colony was a need replicated in many other colonies. The establishment of the Colonial Bishoprics Fund in 1841 provided resources to address this need.
In 1847, Robert Gray was appointed Bishop of Cape of Good Hope Diocese.352 In 1853, the vast diocese was subdivided.353 In 1856, Gray summoned a synod to assist him in the governance of his diocese. There was substantial doubt as to whether a synod could be called without the sovereign’s mandate. This was certainly the case in England but was it the same in the colonies? At least three parishes refused to send representatives to the synod.
In 1860, Gray summoned his second synod and the Reverend William Long who had refused to attend the first synod objected again. Gray moved to deprive him of his living but Long successfully appealed to the Privy Council. Three years later Bishop Gray again failed before the Privy Council when he sought to discipline the Bishop of Natal (Colenso). The following sub-sections deal with Long’s Privy Council appeal and Bishop Colenso’s legal confrontation with Gray. The legal precedents established in the Long and Colenso cases concerning the law applicable to Church of England congregations in the Cape Colony
351 Anthony Ive, A Candle Burns in Africa, (Church of England in South Africa, Natal: 1992), 12, notes visits by Bishops James (1827), Turner (1829) and Wilson (1832), successive Bishops of Calcutta, Corrie of Madras (1835) and Nixon of Tasmania (1843). 352 On 29 June 1847, the Archbishop of Canterbury consecrated the Reverend Robert Gray to be the first Bishop of the Cape of Good Hope. Also consecrated with Gray on that day in Westminster Abbey were the first bishops for the new Australian dioceses of Adelaide (Augustus Short, resigned 1881; died 1883), Melbourne (Charles Perry, resigned 1876; died 1891) and Newcastle (William Tyrrell, died 1879). 353 Gray resigned his Diocese to enable the huge area to be divided into three new dioceses, namely Diocese of Natal, Diocese of Grahamstown and Diocese of Cape Town where Gray was reappointed Bishop and by the same Letters Patent appointed ‘Metropolitan of the Province of South Africa.’ On 30 November 1853, John Armstrong was consecrated for Grahamstown (died 1856) and John William Colenso for Natal (deposed 1863, died 1883).
134 were applied in Williams v Merriman354 discussed in section 5.2.1. These precedents had application in the other colonies of the British Empire. As we will see in chapter 6, the cases examined in this chapter, shaped the law applicable to the Anglican Church in New South Wales.
5.1.1 William Long Starting on 9 February 1863, the Judicial Committee of the Privy Council355 heard an appeal from the Supreme Court of the Cape of Good Hope.356 Lord Kingstown delivered the opinion of the Board on 24 June 1863.
William Long357 was the incumbent and Minister of St Peter's Church, Mowbray in the Colony of the Cape of Good Hope. The Bishop of Cape Town, Robert Gray, suspended Long from his duties as incumbent and deprived him of his incumbency and emoluments. The charge was that Long had refused to provide for the election of lay delegates from his parish to a synod of the Diocese of Cape Town to be held in January 1861. Long maintained that the Acts and Constitutions of the Synod were not binding on him. He had refused to go to the first synod in 1857 and at the second, read a letter ‘I cannot but regard the Act acquiring all newly appointed ministers to subscribe to the Acts and Constitution of the Synod as a condition of license in the Diocese; as a measure sanctioned neither by law, nor usage in our
354 (1882) 7 App Cas 484. 355 Lord Kingsdown, Dr Lushington, Sir Edward Ryan, and Sir John Taylor Coleridge. 356 Long v Cape Town (Bishop of) (1863) 1 Moore NS 411; 15 ER 756. 357 Long had been ordained deacon by the Bishop of London on 20 October 1844, using the form of service prescribed in the Book of Common Prayer, having first subscribed to the Thirty-Nine Articles of Religion and the other requirements of Canon 36 and having taken various oaths prescribed by law. He then proceeded to the Cape where he was appointed by the Governor of the colony to be Minister of the Episcopal Church, his salary being paid partly by the government and partly by the Society for the Propagation of the Gospel in Foreign Parts and partly by the congregation. After Gray's arrival, Long applied for admittance to Priests Orders and he was duly ordained priest on 15 October 1848, after which Gray gave him a license to officiate.
135 church, and an unwarranted clog upon the clergymen's liberty, unknown in any English diocese’.358
Long sought a declaration in the Supreme Court to test the legality of the actions of Gray. He was unsuccessful, so then he appealed to the Privy Council. The Board made an early statement was made about their approach to the case:
In the argument at our Bar many questions of great novelty and importance were raised and discussed with remarkable ability. Some of them were considered, and very justly, by the Counsel as seriously affecting the well-being of members of the Church of England in the Colonies only so far as may be necessary for the purposes of the present decision, and to abstain as far as possible from saying anything which may prejudice cases that may hereafter arise.359
The first question considered was the authority given to the Bishop by virtue of his Letters Patent at the time the sentences of deprivation were pronounced:
The Judges below have been unanimous in their opinion: first, that all jurisdiction given to the Bishop by Letters Patent of 1847, ceased by the surrender of the Bishopric in 1853, and the issue of the new Letters Patent; and secondly, that the Letters Patent of 1853, being issued after a constitutional Government had been established in the Cape of Good Hope, were ineffectual to create any jurisdiction, Ecclesiastical or Civil, within the Colony, even if it were the intention of the Letters Patent to create such jurisdiction, which they think doubtful. In these conclusions we agree.360
The second point considered by the Privy Council was the majority decision of the Supreme Court that the defective coercive jurisdiction under the Letters Patent had been cured by the voluntary submission of Mr Long. What is the position of members of the Church of England in the Colonies?
358 Ive, above n 348, 6. 359 Long v Cape Town (Bishop of ) (1863) 1 Moore NS 411; 15 ER 756, 768. 360 Ibid 774.
136
The Church of England, in places where there is no Church established by law, is in the same situation with any other religious body - in no better, but in no worse position; and the members may adopt, as the members of any other communion may adopt, rules for enforcing discipline within their body which will be binding on those who expressly or by implication have assented to them.361
Any tribunals constituted to enforce discipline are not courts and have no power to enforce their decisions. The courts will give effect to their decisions in the same way as they give effect to the decisions of arbitrators, whose jurisdiction rests entirely upon the agreement of the parties. The Privy Council put it in these words: . [W]here any religious or other lawful association has not only agreed on the terms of its union, but has also constituted a Tribunal to determine whether the rules of the association have been violated by any of its members or not, and what shall be the consequence of such violation; the decision of such Tribunal will be binding when it has acted within the scope of its authority, has observed such forms as the rules require, if any forms be prescribed, and, if not, has proceeded in a matter consonant with the principles of justice.
In such cases the Tribunals so constituted are not in any sense Courts: they derive no authority from the Crown; they have no power of their own to enforce their sentences; they must apply for that purpose to the Courts established by law, and such Courts will give effect to their decision, as they give effect to the decision of arbitrators, whose jurisdiction rests entirely upon the agreement of the parties.362
The principles applied by the English Courts to disputes between members of the same religious body not being members of the Church of England, were laid down in the case of Dr Warren.363 As these principles were ‘founded in good sense and justice and established by the highest authority’, the Privy Council wished to strictly adhere to
361 Ibid 774. 362 Ibid 774. 363 Dr Warren's Case (1835) Grindrod's Compendium, 8th ed. 371
137 them and ‘consider how far the facts of this case bring Mr Long within their operation’.364
The Privy Council declined to deal with the Bishop's authority in spiritual affairs or ‘Mr Long's obligations in foro conscientiae’.365 The phrase ‘obligations in foro conscientiae’ is echoed some 130 years later by the New South Wales Court of Appeal in Scandrett v Dowling366 where that court also declined to deal with such obligations.
However, a number of other questions were addressed by the Board. What was the status of the synod convened by Bishop Gray? Not much, so it seems, without undergirding from the Crown or the legislature:
But it is a mistake to treat the assembly convened by the Bishop as a synod at all. It was a meeting of certain persons, both Clergy and Laity, either selected by the Bishop or to be elected by such persons and in such manner as he had prescribed and it was a meeting convened not for the purpose of taking counsel and advising together what might be best for the general good of the society but for the purpose of agreeing upon certain rules and establishing in fact certain laws by which all members of the Church of England in the colony’ whether they assented to them or not, should be bound.
Accordingly the synod, which actually did meet passed various acts and constitutions purporting without the consent either of the Crown or of the Colonial Legislature, to bind persons not in any manner subject to its control and to establish Courts of Justice for some temporal as well as spiritual matters and in fact the synod assumed powers that only the Legislature could possess. There can be now doubt that such acts were illegal.367
What was the extent of the Oath of Obedience given by Mr Long to Bishop Gray?
364 Long v Cape Town (Bishop of) (1863) 1 Moore NS 411;15 ER 756,775. 365 Ibid 775. 366 (1992) 27 NSWLR 483, 554, 367 Ibid 775.
138
The oath of canonical obedience does not mean that the Clergyman will obey all the commands of the Bishop against where there is no law, but that he will obey all such commands as the Bishop by law is authorized to impose; and even if the meaning of the Rubric referred to by the Bishop in his case were such as he contends for - which we think that it is not - it would not apply to the present case, in which more was required from Mr Long than merely to publish a notice.368
The appeal, at its heart, concerned a right of property. Who had the right of possession of the church at Mowbray? Mr Long was the cestui que trust of funds with the bishop as trustee. In the view of the Privy Council, Mr Long’s conduct did not preclude him from resort to ‘a Civil Court for restitution of Civil rights, and of thereby giving to such Courts jurisdiction to determine questions of an Ecclesiastical character essential to their decision’.369
Accordingly, the Board were of the opinion that the order of suspension issued by the Bishop was not justified by the conduct of Long and the subsequent sentence of deprivation could not be sustained:
and, after the most anxious consideration, we have come to the conclusion that the sentence complained of cannot be supported, and therefore we must humbly advise Her Majesty to reverse it, and to declare that Mr Long has not been lawfully removed from the church of Mowbray, but remains Minister of such church, and entitled to the emoluments belonging to it.370
The Board were ‘embarrassed’ by the question of costs, which they awarded against the Bishop. They recognised that he had acted ‘in the conscientious discharge’ of his public duty and had faced difficulties caused by the doubtful state of the law concerning the Letters Patent which the English government had no authority to issue. Similarly, they recognised that Mr Long had also suffered
368 Ibid 776. 369 Ibid 776. 370 Ibid 776.
139 ‘trouble and expense’ in resisting the bishop’s demands which were ‘not warranted in law’.
In summary: 1. After self-government had been given to a colony, any Letters Patent appointing a colonial bishop were not effective to grant civil or ecclesiastical jurisdiction. The coercive power in the Letters Patent over clergy in his diocese, were evacuated of any legal force and effect. The relationship between colonial bishops and their clergy had come under judicial scrutiny about five years earlier, in 1857, in The Queen v The Provost of Eton College.371 This case was considered in section 4.6 of chapter 4. 2. The legal status of the Church of England in a colony was no better or no worse than any other religious body. 3. The Privy Council declined to interfere in matters spiritual or ‘obligations in foro conscientiae’
5.1.2 John William Colenso If the June 1863, Privy Council pronouncement concerning Mr Long was disappointing for Bishop Gray, it did not dissuade him from moving, in July 1863, to depose the Bishop of Natal, John William Colenso. The reason was Colenso’s publication of a number of Old Testament commentaries and one on the Epistle to the Romans, which were ‘modern and critical’. Colenso appealed to the Privy Council.
Commencing on 14 December 1864, the Judicial Committee of the Privy Council 372 heard argument brought by Colenso, Bishop of Natal, complaining of the illegality of proceedings taken against him by the Bishop of Cape Town, Robert Gray, in his capacity as Metropolitan bishop of the Cape of Good Hope. After argument, judgment was
371 27 Law J Rep (NS) QB 132. 372 The Lord Chancellor (Lord Westbury), Lord Cranworth, Lord Kingsdown, the Master of the Rolls (Sir John Romily) and the Right Hon. Dr Lushington.
140 reserved and on 20 March 1865, the Lord Chancellor (Chelmsford) delivered the opinion of the Board.373
Both the Bishop of Natal (Colenso) and the Bishop of Cape Town (Gray) were created bishops by the Queen exercising her authority as Sovereign and head of the Established Church. Their status
both ecclesiastical and temporal, must be ascertained and defined by the law of England; and it is plain that their legal existence depends on acts which have no validity or effect, except on the basis of the supremacy of the Crown. Further, their respective and relative rights and liabilities must be determined by the principles of English law applied to the construction of the grants to them contained in the Letters Patent; for they are the creatures of English law, and dependent on that law for their existence, rights and attributes.374
But Bishop Gray had a timing problem. Gray was appointed Bishop of Cape Town by Letters Patent in 1847, but had surrendered these when it was deemed desirable in 1853, to divide the diocese into three separate dioceses, namely Cape Town, Grahamstown and Natal. In the new Letters Patent, the Bishop of Grahamstown and the Bishop of Natal were to be subordinate to the See of Cape Town.375Gray’s new Letters Patent of the 8 December 1853 were not granted pursuant to Orders in Council or by virtue of a Statute of the imperial parliament, nor any act of the legislature of the Cape of Good Hope which obtained
373 Re Natal, Lord Bishop of (1865) III Moore NS 115; 16 ER 43. 374 Ibid 53. 375 Ibid 53, Gray was ‘Metropolitan Bishop in our Colony of Cape of Good Hope and its dependencies and our Island of St Helena, subject nevertheless to the general superintendence and revision of the Archbishop of Canterbury for the time being, and subordinate to the Arch-episcopal See of the Province of Canterbury: and we will and ordain that the said Bishops of Graham’s Town and Natal respectively shall be Suffragan Bishops to the said Bishop of Cape Town and his successors. And we will grant to the said Bishop of Cape Town and his successors full power and authority as Metropolitan of the Cape of Good Hope, and the Island of Saint Helena, to perform all functions peculiar and appropriate to the office of Metropolitan within the limits of the said Sees of Graham’s Town and Natal, and to exercise Metropolitan jurisdiction over the Bishops of the said Sees and their successors, and over all Archdeacons, Dignitaries, Chaplains, Ministers, Priests and Deacons…for correcting and supplying the defects of the said Bishops and their successors, with all and all manner of visitorial jurisdiction, power and coercion’.
141 responsible government in 1852.376 Colenso was consecrated on 30 November 1853 and took an Oath of Canonical Obedience which was administered to him by the Archbishop of Canterbury, which promised all due reverence and obedience to the Metropolitan Bishop of Cape Town.
The Privy Council considered three questions. First, were the Letters Patent of 8 December 1853 appointing Gray as Metropolitan Bishop, valid and good in law? Secondly, assuming the relation of Metropolitan Bishop (Gray) and Suffragan Bishop (Colenso) was created, was the grant of coercive authority and jurisdiction by the Letters Patent valid and good in law? Thirdly, can the Oath of Canonical Obedience made by Colenso and his consent to accept the See confer any jurisdiction or authority on the Metropolitan Bishop to support the sentence of deprivation?
As to the first question, the clear principle is that after the establishment of an independent legislature for the settlement in the Cape of Good Hope, there was no power in the Crown by virtue of its prerogative to establish a Metropolitan See or to create an ecclesiastical corporation. Responsible government was granted to the Cape in 1852. The argument was that once a colony has received legislative institutions, the Crown stands in the same relation to that colony as it does to the United Kingdom. Comparisons were made with the East Indies and Jamaica. The Judicial Committee concluded:
We, therefore, arrive at the conclusion that although in a Crown Colony, properly so called, or in cases where the Letters Patent are made in pursuance of the authority of an Act of Parliament (such for example as the Act of the 6th and 7th Vict.,c.13), a Bishopric may be constituted and Ecclesiastical jurisdiction conferred by the sole authority of the Crown, yet that the Letters
376 The Letters Patent which constituted the See of Natal and appointed Colenso were dated 23 November 1853, 15 days before the Letters Patent to the Bishop of Cape Town. The Natal Letters Patent recited the earlier Patent of September 1847 which created the original Diocese of Cape Town and appointed Gray the Bishop and that he had since resigned on the need to divide the Diocese into three or more separate dioceses.
142 Patent of the Crown will not have any such effect or operation in a Colony or Settlement which is possessed of an independent legislature.377
The conclusion reached on the first question, answered the second question:
It cannot be said that any Ecclesiastical Tribunal or jurisdiction is required in any Colony or Settlement where there is no Established Church, and in the case of a settled Colony the Ecclesiastical Law of England cannot, for the same reason, be treated as part of the law which the settlers carried with them from the mother country.378
Accordingly:
There is, therefore, no power in the Crown to create any new or additional ecclesiastical Tribunal or jurisdiction, and the clauses which purport to do so, contained in the Letters Patent to the Appellant and Respondent, are simply void in law. No Metropolitan or Bishop in any Colony having legislative institutions can, by virtue of the Crown's Letters Patent alone (unless granted under an Act of Parliament, or confirmed by a Colonial Statute), exercise any coercive jurisdiction, or hold any Court or Tribunal for that purpose.379
There was a remaining point, namely that if the Bishop of Cape Town had no jurisdiction and his judgment was void, no appeal could lie to Her Majesty in Council:
Before the Reformation, in a dispute of this nature between two independent prelates, an appeal would have laid to the Pope; but all appellate authority of the Pope over members of the Established Church is by Statute vested in the Crown. It is the settled prerogative of the Crown, to receive appeals in all Colonial causes, and by the 25th Hen. V111., c. 19 (by which the mode of the appeal to the Crown in Ecclesiastical causes is directed), it is by the 4th section enacted that 'for lack of justice at or in any of the Courts of the Archbishops of this Realm, or in any of the King's dominions, it shall be lawful to the parties grieved to appeal to the King's Majesty in the King's Court of
377 Re Natal, Lord Bishop of (1865) Moore lll NS 115; 16 ER 43, 57. 378 Ibid 57. 379 Ibid 58.
143 Chancery' an enactment which gave rise to the Commission of Delegates, for which this Tribunal is now substituted.380
Accordingly, ‘[t]heir Lordships, therefore, will humbly report to Her Majesty, their judgment and opinion that the proceedings taken by the Bishop of Cape Town, and the judgment or sentence pronounced by him against the Bishop of Natal, are null and void in law’.381
5.1.3 Aftermath of Colenso Gray ignored the Privy Council decision and in 1869 appointed the Rev William K Macrorie to be the Bishop of Maritzburg in Natal and so, until the death of Colenso in 1883, there were two Church of England bishops in Natal.
Colenso was not finished with litigation. At the request of Gray, the Colonial Bishoprics Fund, in April 1864, suspended the payment to Colenso of his salary and income from the diocesan endowment. Following his success before the Privy Council, Colenso commenced a suit against the trustees of the fund.382 The fund trustees argued that as the Judicial Committee held that the letters patent could not give a bishop coercive jurisdiction in a colony which had its own legislature, the letters patent also failed to create a legal see or diocese and consequently there was no bishop to pay. After a three day hearing in June 1866, Lord Romilly MR delivered a lengthy judgment on 6 November granting Colenso’s claim to his salary and the income from the endowment. Colenso retained his legal status as Bishop of Natal even though the letters patent did not give him any coercive jurisdiction over his clergy. Obedience could be enforced by resort to the civil courts. Romilly MR, who had been one of the Board members of the Judicial Committee in the earlier Colenso case, used
380 Ibid 59. 381 Ibid 59. 382 Bishop of Natal v Gladstone (1866) 3 Ch 1. William Gladstone was the Treasurer of the Fund.
144 this judgment to reiterate the legal principles to be applied to Church of England congregations in the colonies of the British Empire.
Gray’s sentence of deposition of Colonso in April 1864 also prohibited him from exercising any ‘divine office’ in the Province. However, following Colenso’s Privy Council success, an Order-in- Council, on 31 March 1865, declared that Gray’s sentence was ‘null and void in law and commanded all who might have a concern to take notice of the declaration and conduct themselves accordingly’. 383
This declaration was resisted by Colenso’s opponents in Natal and led to one final joust in 1869 in the Privy Council.384 Acting at the request of Gray, the Dean of the Cathedral Church declared that he no longer acknowledged Colonso as his Bishop. The Dean and the Church Wardens obstructed the use of the cathedral by Colonso and other members of the English Church at Pietermaritzburg. Colonso sought orders against the Dean and the Church Wardens to stop the interference of his use of the cathedral. It was an action of ejectment and a claim for possession of the land and Cathedral, and for nominal damages. By a majority the Supreme Court gave judgment for Colonso and awarded him one farthing in damages. They also ordered that the land and the buildings were vested in Colonso, in his corporate capacity as Bishop of Natal and his successors in office.
Gray appealed to the Privy Council.385 Lord Justice Giffard delivered the opinion of the board on 20 July 1869. Having had the advantage of the recent cases of Long v the Bishop of Cape Town in 1863, In Re The Bishop of Natal in 1864, and Bishop of Natal v Gladstone in 1866 arguing most of the issues, the Privy Council concluded that the 1847 Letters Patent and the subsequent 1853 Letters Patent, were
383 Re Natal, Lord Bishop of (1865) III Moore NS 115; (1865) 16 ER 43, 59. 384 The Bishop of Cape Town v The Bishop of Natal (1869) 6 Moore NS 202. 385 The appeal was heard on 1, 5 and 6 July 1869. Present were Sir William Erle, Sir James Colville, Sir Joseph Napier, Bart and Lord Justice Giffard.
145 not completely void. There was a corporation capable of taking the grant of land on which the cathedral was erected. The Letters Patent of 1853 gave Colonso
the right of access to the Church, the right to officiate there as Bishop, and the right to perform there all the religious services which are or ought to be performed by a Bishop in a Cathedral, consistently with the laws and usages with the Church of England, so far as the same are applicable to the Church and Colony in question. 386
The Board had no doubt that Colonso had exercised these rights from the time of his appointment in 1853 until his purported deposition by Gray in 1863.
Colenso died in 1883 and the Archbishop of Canterbury (Benson) advised Bishop Macrorie to resign so that an opportunity could be taken to heal the division between the two factions of the Church in Natal. Macoroie initially refused but finally did resign in 1891. In the meantime the Supreme Court in Natal (September 27 1884) placed all the Church of England properties in the hands of Curators in trust for that church until the appointment of a successor to Colenso. Eventually, Arthur Hamilton Baynes was consecrated in Westminster Abbey on 29 September 1893, with the intention that Baynes was to be a bishop for the Church of England in Natal and Maritzburg and at the same time a bishop in the Church of the Province. This unusual dual role was to satisfy the demands of the two separated churches and to bring peace between them.387
5.2 A new constitution and its consequences In 1870, the Synod of the Church of the Province of South Africa adopted a constitution for the dioceses which comprised that Province. Article 1 of the constitution set out the standards of ‘faith and doctrine’
386 The Bishop of Cape Town v The Bishop of Natal (1869) 6 Moore 204, 221. 387 See Peter Hinchliff, The Anglican Church in South Africa (London DLT: 1963) for further historical comment.
146 of the church and then added a number of qualifications concerning alterations and interpretations of the standards and formularies of the church. The third qualification, which later came to be known as ‘the Third Proviso’ came under judicial scrutiny by the Privy Council in Merriman v Williams.388 This ‘third proviso’ was to the effect that the tribunals of the Church of the Province of South Africa would be bound by decisions of its own tribunals and not that of any English court exercising jurisdiction in ecclesiastical causes. This was a specific reference to the Judicial Committee of the Privy Council.389 As will be seen from the next case, the Privy Council decisions in Gorham v Bishop of Exeter 390 and Williams v Salisbury (Bp) 391 could be excluded from the ‘law of the church of South Africa’. The 1870 constitution severed the legal nexus between the Church of England and the Church of England as manifested in the Church of the Province of South Africa. It created a new church as will be seen in the next case considered. This ‘nexus’ in its Australian context is considered in chapter 4.
5.2.1 Merriman v Williams During 1878 there was a difference of opinion about the right to preach in the Church of St George. The Bishop claimed the church as his cathedral in which he had a right to preach at will. The Dean was willing to allow the Bishop to preach as a matter of courtesy but not as a matter of right. On 17 April 1879, the Bishop attended the church with the intention of preaching, having previously given notice to the Dean. At the time of delivery of the sermon, the Dean occupied the pulpit and began to preach himself whereupon the Bishop lodged a protest and left the church. The Dean was charged in the Diocesan Court and found guilty of 'contumacious disobedience and of conduct giving just course of offence or scandal to the church' and suspended from office until he consented to the Bishop preaching in the church.
388 (1882) 7 App. Cas 484. 389 See discussion of this at 329-334 in Clarke, 1924, above n 112. 390 (1850) Moore’s Special Reports 462. 391 (1863) 2 Moo PC NS 375.
147 The Dean refused and was subsequently excommunicated. Proceedings were commenced in the Supreme Court where the Bishop sought a declaration that the Dean was bound by the laws of the Church of the Province of South Africa, bound to accept and submit to any sentence given by the Diocesan Court, and, that the Bishop, in his episcopal capacity, had the right to officiate in the cathedral.
In response, the Dean claimed that as Rector of the Church of St George, he performed ministerial functions as a Priest of the Church of England ‘as by law established’. He asserted that the Church of the Province of South Africa is a religious body entirely independent from the Church of England as by law established and that he was not a member of the Church of the Province, nor bound by its Constitutions. Further, that the Church of St George was held in trust for the ecclesiastical purposes in connection with the Church of England as by law established.
On 26 August 1880 the Supreme Court absolved the Dean from the sentence of the Diocesan Court and awarded costs against the Bishop. The Supreme Court held that the Church of St George was held on trust for ‘ecclesiastical purposes in connection with the Church of England’ and that the Church of South Africa was not, so far as the circumstances of the colony would permit, a part of the Church of England. The Bishop appealed to the Privy Council who began hearing the appeal on March 29 1882.392 The respondent was not only the Dean of Graham's Town, but also both the Colonial Chaplain appointed by the Crown for Graham's Town and the Rector of the Church of St George in Graham's Town.
The Board confined itself to the question of the use of the Church of St George because a great part of the plaintiff's prayer for relief was
392 Merriman v Williams (1882) 7 App. Cas 484. The Board comprised Sir Barnes Peacock, Sir Robert P Collier, Sir James Hannen, Sir Richard Couch and Sir Arthur Hobhouse.
148 ‘beyond the competence of the Civil Court to grant in this suit’.393 In short, the Board saw it as an issue of property: was Bishop Merriman a ‘Church of England’ bishop and therefore entitled to the cathedral?
The Governor of the colony had granted the land to the Bishop of Cape Town (Dr Gray) and his successors to be used ‘for ecclesiastical purposes in connection with the Church of England and to and for no other purpose whatsoever...’394 The Letters Patent of 1853 erecting a bishopric of Graham's Town declared that the church called St George in the City of Graham's Town to be the Cathedral Church and See of ‘John Armstrong and his successors’. Armstrong was the first bishop of Graham's Town. The Privy Council said the term 'successors' referred to persons named and appointed by the Crown and ordained and consecrated by the Archbishop of Canterbury. Following the death of Armstrong, the Crown issued Letters Patent on 20 November 1857 appointing the Rev Henry Cotterill to succeed Armstrong and directing the Archbishop of Canterbury to consecrate him.
However, in June 1852, the British government granted a constitution to Cape Colony and established a representative colonial legislature. The significance of the grant of self-government on the efficacy of letters patent to create colonial bishoprics and make episcopal appointments was a key focus of the Privy Council appeals from Mr Long and Bishop Colenso in 1863 and 1865 respectively. The Board quoted with approval its earlier decisions of Long v Bishop of Cape Town 395 and Colenso’s case against Bishop Gray.396 They summarised (at 54-55) by saying ‘one effect of these expositions of the law was that the Crown ceased to grant Letters Patent for bishops in colonies possessing independent legislatures’. It was in theory possible for the Crown to make an appointment within the terms of the original Letters Patent creating the Bishopric, however, by 1863 the
393 Ibid 497. 394 Ibid 499. 395 (1863) 1 Moore NS 411; 15 ER 756. 396 Re Natal, Lord Bishop of (1865) III Moore NS 115; (1865) 16 ER 43.
149 Crown ceased to use this method of appointment. Accordingly, the Board said, ‘Their Lordships are clear that this case must be decided on the footing that the practice no longer exists’. One effect of these decisions was ‘that English churchmen in the colonies took steps to organise themselves like other independent religious societies, on the footing of contract’. Consequently after the establishment of self- government in 1852, the 1857 Letters Patent appointing Cotterill as successor to Armstrong were not effective to make Cotterill a ‘Church of England Bishop’, able to take possession of the church site in accordance with the trust deed.
What was the relationship between the Church of the Province and the ‘Church of England as by law established’. What was it that prevented the Graham’s Town cathedral property passing to the South African Church?
A principle question is whether there is substantially common identity in standards of faith and doctrine. Clearly, a church in a colony with an independent legislature may well have differences in the method of appointment of bishops and the creation of church courts. But these things would not prevent common standards of faith and doctrine to continue. The Privy Council found that the first article of the Constitution of the South African Church and especially the Third Proviso provided greatest difficulty in holding that the Church of South Africa is in connection with the Church of England. The judgment then sets out the article:
1, The Church of the Province of South Africa receives the doctrine, sacraments, and discipline of Christ as the same are contained and commanded in Holy Scripture according as the Church of England has received and set forth the same in its standards of faith and doctrine, and it receives the Book of Common Prayer, and of ordering of bishops, priests and deacons, to be used according to the form therein prescribed in public prayer and administration of the sacrament and other holy offices, and it accepts the English version of the Holy Scriptures as appointed to be read in churches, and
150 further it disclaims for itself the right of altering any of the aforesaid standards of faith and doctrine. Proved that nothing herein contained shall prevent the Church of this province from accepting, if it shall so determine, any alterations in the formularies of the Church (other than the creeds) which may be adopted by the Church of England, or allowed by any General Synod, Council, Congress, or other assembly of the churches of the Anglican communion, or from making at any time such adaptations and abridgments of and additions to the services of the Church as may be required by the circumstances of this province. Provided that all changes in and additions to the services of the Church made by the Church of this province shall be liable to revision by any synod of the Anglican communion to which this province shall be invited to send representatives. Provided also, that in the interpretation of the aforesaid standards and formularies the Church of this province be not held to be bound by decisions in questions of faith and doctrine or in questions of discipline relating to faith and doctrine other than those of its own ecclesiastical tribunals, or of such other tribunal as may be accepted by the provincial Synod as a tribunal of appeal.397 [emphasis added].
This ‘Third Proviso’ freed the South African Church from being bound by decisions of the Privy Council which were not in accord with their predominantly Oxford Movement theological outlook. Not being bound by decisions of other tribunals in questions of faith, doctrine or discipline, was the point of departure from the connection with the Church of England.
The trusts of the cathedral property were ‘in favour of persons belonging to the United Church of England and Ireland as by law established’. The faith and doctrine of the Church of England is found in the 1662 Book of Common Prayer and the Thirty-Nine Articles of Religion, but also, said the Board:
But the standards of faith and doctrine adopted by that church are not to be found only in the texts, they are to be found also in the interpretation which those texts have, from time to time, received at the hands of the Tribunals by law appointed to declare and administer the law of the church.398
397 Merriman v Williams (1882) 7 App. Cas 484, 508. 398 Ibid 509.
151 The Board made comment on the practical effect of the Third Proviso by reference to two cases decided before the adoption of the 1870 constitution. They were Gorham v The Bishop of Exeter 399 and Williams v The Bishop of Salisbury.400 Both cases affirmed and secured the right of a clergyman of the Church of England to preach freely the doctrines which were in question in those cases. But, in the Church of the Province
a clergyman preaching the same doctrines may find himself presented for, and found guilty of, heresy. Such a reservation on the part of the Church of South Africa must tend to silence and exclude those whom the decisions of Her Majesty and Counsel would protect in the Church of England. [The decisions in Gorham and Williams]…form part of the constitution of the Church of England as by law established, and the Church and the tribunals which administer its laws are bound by them. That is not the case as regards the Church of South Africa. The decisions are not part of the constitution of that Church, but are expressly excluded from it. There is not the identity in standards of faith and doctrine which appears to their Lordships necessary to establish the connexion required by the trusts on which the Church of St George is settled. There are different standards on important points. In England the standard is the formularies of the Church as judicially interpreted. In South Africa it is the formularies as they may be construed without the interpretation.401
Having concluded that the divergence in faith and doctrine is ‘present and actual’ and that the standard of faith and doctrine is a different standard which the Church was perfectly free to do, ‘having chosen that independence, they cannot also claim, as a right, the benefit of endowments settled to uses in connection with the Church of England as by law established’.402
Before advising Her Majesty to dismiss the appeal with costs their Lordships expressed their opinion about this type of case:
399 1850 Moore's Special Report 462. 400 (1863) 2 Moo PC NS 375. 401 Merriman v Williams (1882) 7 App. Cas 484, 510. 402 Ibid 510.
152 [T]hat Courts of Law cannot settle, in any satisfactory way, questions affecting permanent endowments after a total change of circumstances has occurred, and their concurrence with the Chief Justice in thinking that the legislature alone can probably deal with such cases.403
This judicial suggestion of parliamentary intervention in this type of case became a reality in 1904, following the House of Lords decision in The Free Church of Scotland v Overtoun.404 There, the court upheld a claim by a minority that the majority had adopted new doctrines and thereby lost the right to use church assets. The numerical size of the minority was not sufficient to make use of all the assets awarded to them, and no agreement could be reached between the parties to share the assets more equitably. Parliament was persuaded to set up a commission to investigate before passing legislation (the Churches (Scotland) Act 1905) to resolve the impasse.
With Overtoun’s case in mind, the Australian Presbyterians set up a commission and obtained legislation to deal with the division of property arising from a majority of Australian Presbyterians joining the Uniting Church of Australia in the 1970s.
5.2.2 The Colonial Bishoprics Fund The legal issues raised by the South African cases considered so far, appeared again some 70 years later in a British Court.405 On the 15 May 1933, the Trustees of the Colonial Bishoprics Fund sought a declaration that they were at liberty to continue payment to the present Bishop of Cape Town in South Africa income from the trust fund allocated to the endowment of a Bishopric of Cape Town. In the alternative, the income ought to be applied cy-près to the bishopric.
403 Ibid 510. 404 [1904] AC 515. See also Frank A Cranmer, 'Christian Doctrine and Judicial Review: the Free Church Case Revisited' (2002) 6 Ecclesiastical Law Journal 203. 405 Re The Colonial Bishoprics Fund, 1841, and Re The Charitable Trusts Acts, 1853-1925. [1935] Ch 148.
153 The trustees of the Colonial Bishoprics Fund, took the view that even though a particular form of episcopal supervision had ceased to be possible in the self-governing colonies, it did not prevent the fund from adapting itself to the new conditions of a church organised by members of the Church of England on a consensual basis, provided that its constitution followed that of the Church of England in matters of episcopal supervision and that such church remained in communion with the Church of England. They argued that ‘in communion with the Church of England’ simply means a church summoned by invitation to the Lambeth Conference.
Those opposing the scheme argued that when the new Church in South Africa adopted a constitution with standards of faith and doctrines which were not in connection with the Church of England, the only churches in South Africa which continued as part of the Church of England were those churches which stayed out of the Church of the Province. It is those churches which this endowment was originally created to benefit. Further, Merriman v Williams 406 had held that the Church of the Province of South Africa was not a Church in connection with the Church of England as by law established.
In delivering judgment, Luxmoore J noted that the object of the proceedings was in substance an action to prevent the property known as Bishops Court, and some investments and income being applied for the use and benefit of the present Archbishop of Cape Town, on the ground that he was not a beneficiary under the trusts impressed on the property and investments in question. The first question addressed is whether the trusts allow the Archbishop of Cape Town to be paid the income of the investments held by the Colonial Bishoprics Fund and set apart to form part of the endowment of the See of Cape Town. The Archbishop of Cape Town is not a Bishop of the Church of England or
406 (1882) 7 App. Cas 484; 47 L.T. 51 PC, 56.
154 of a Church in connection with the Church of England but is a Bishop of the Church of the Province of South Africa.
Luxmoore J examined the resolutions establishing the Colonial Bishoprics Fund in 1841407 and the South African cases decided by the Privy Council in the 19th century. He had no doubt that the ‘Church’ referred to in the resolutions is the Church of England and that reading the resolutions as a whole, the fundamental object was the foundation and endowment of Bishoprics in connection with the Church of England.408
At its foundation, Cape Town was a beneficiary of the Fund as were Grahamstown and Natal when founded, but Luxmoore J concluded that the present Archbishop of Cape Town is not a Bishop of the Church of England as by law established and that ‘there is in South Africa no body which can properly be described as the Church of England as by law established’. The Archbishop of Cape Town
407 The resolutions were: (1)That the Church of England in endeavouring to discharge her unquestionable duty of providing for the religious wants of her members in foreign lands, is bound to proceed upon her own principles of Apostolical order and discipline. (2)That the want of Episcopal superintendence is a great and acknowledged defect in the religious provision hitherto made for many of the Colonies and dependencies of the British Crown. (3)That the acquisition of new Colonies, and the formation of the British communities in various parts of the world, render it necessary that an immediate effort should be made to impart to them the full benefit of the Church, in all the completeness of her ministry, ordinances and government. (4)That a Fund be raised towards providing for the endowment of the Bishoprics in such of the foreign possessions of Great Britain as shall be determined upon by the Archbishops and Bishops of the United Church of England and Ireland; that their Lordships be requested to undertake the charge and application of the Fund, and to name a Treasurer or Treasures, and other such Officers as may be required for conducting the necessary details. 408 On June 1 1841, Archbishops and Bishops of the United Church of England and Ireland decided that the immediate erection of Bishoprics was needed in New Zealand, the British Possessions in the Mediterranean, New Brunswick, Cape of Good Hope, Van Diemen's Land, and Ceylon. By November, the standing committee paid £10000, out of the general fund towards the endowment of bishoprics in New Brunswick and the Cape of Good Hope. In 1847, Baroness Burdett Coutts contributed a sum of £35000 to the fund for the specific purpose of an endowment for the Bishoprics of Adelaide and Cape Town. The British Government took the necessary civil steps for the erection of Episcopal Sees. On 29 June 1847, the Archbishop of Canterbury in Westminster Abbey consecrated Robert Gray for Cape Town, Augustus Short for Adelaide, Charles Perry for Melbourne and William Tyrrell for Newcastle. Each was the founding bishop for the new diocese.
155 therefore is not a beneficiary of the funds set apart for the endowment of the Bishop of Cape Town.
Luxmoore J made an order by way of a cy-près scheme for the application of the income of the funds was made. The court reasoned that the Church (in South Africa) is within the Anglican Communion. The Diocese of Cape Town is still part of the same area as that provided for by the Letters Patent of 1847. The Archbishop of Cape Town exercises (apart from ecclesiastical jurisdiction) similar episcopal supervision and ministry in respect of that Diocese as may be exercised by a Bishop of the Church of England over an English Diocese. The Church of the Province of South Africa is in full communion with the Church of England as that Church accepts ordinations made by South African Bishops under the Colonial Clergy Act 1874 (UK) and admits to the full privilege of communicant membership any of its lay members.
Luxmoore J directed the trustees to pay the income, until further order, to the Archbishop of Cape Town for the time being appointed and recognised by the Church of the Province of South Africa. The court did not recognise the existence of the church known as the Church of England in South Africa (CESA). This church traces its ancestry to the Mr Long who took Bishop Gray to the Privy Council. Some cases involving the transfer of congregations from CESA to the Church of the Province have been reported.409
5.3 Conclusions The Long and Colenso cases established at the highest appellate level in the British Empire the legal principles applicable to Church of England congregations in the colonies of the empire. Letters Patent
409 Trustees Act 9 of 1910 (Natal) v Church of England in South Africa [1958(1)] South African Law Reports 822; Central Trustees of the Church of England in South Africa v Trustees Act 9 of 1910 (Natal) [1958(2)] SALR 650; Central Trustees of the Church of England in South Africa v Trustees Act 9 of 1910 (Natal) SALR [1958(2)] 656.
156 appointing colonial bishops proved to be ineffective if self- government pre-dated the Letters Patent. Colonial bishops were deprived of the coercive jurisdiction over clergy in their diocese enjoyed by their episcopal brethren in England. The central legal principle from the South African cases is that the Church of England in the colonies is a voluntary association, unless established by a legislative Act of the local Parliament. Whereas in England, because ‘establishment’ church rules are part of the law of the realm there is access to the courts to enforce church rules, but beyond England, Church of England churches are on the same legal footing as other voluntary associations. Resolution of internal disputes in those circumstances is more problematic because of the need to resort to the civil courts.
The next chapter looks at the contribution of these key South African appeal cases to the Australian jurisprudence in the area of internal church disputes.
157
6 IN COURT: AUSTRALIAN ‘CHURCH INTERNAL DISPUTE CASES’
6.1 Introduction
This chapter examines five leading Australian ‘church internal dispute’ cases which have been resolved on one or other of the foundation principles examined common law cases considered in chapters 1, 2 and 3 of this thesis. It will be seen that the South African Privy Council appeal cases, are heavily relied on for precedent and guidance. Four of these cases,410 bear on the thesis question of judicial intervention in the affairs of a religious association and the fifth case411 illustrates the application of legal principles to resolving internal church disputes. The cases span one hundred years and three different denominations. Four cases were determined by the High Court of Australia and one by a state court of appeal so they all exert the weight of precedent.
6.2 Leading Australian ‘church dispute’ cases In the short history of Australia, only a handful of church internal dispute cases have reached the appellate court level in Australia. Each case adds to the jurisprudence in this area of law as well as colouring the thinking and focus of church legislators and policy makers for the succeeding generation.
The effect of the South African cases considered in chapter 5 was to require courts to treat the Church of England in the colonies on the same basis as any other voluntary, unincorporated associations. All churches, being in the form of unincorporated associations, were in the same conceptual boat in the eyes of the law. All churches were
410 MacQueen v Frackelton (1909) 8 CLR 763; Wylde v A-G (NSW) ex rel Ashelford (1948) 78 CLR 224; Scandrett v Dowling (1992) 27 NSWLR 483 and Ermogenous v Greek Orthodox Community of South Australia (2002) 120 CLR 95. 411 Plenty & Anor v Seventh Day Adventist Church of Port Pirie [2009] SASC 10.
158 subject to the same reluctance from the courts to intervene in internal disputes to provide a judicial solution.
The cases considered in this section deal with serious issues which arise from time to time in the life of an association. Issues such as expulsion from membership, dismissal from office, misuse of property, and breach of the rules of the association are considered by appellate benches. The first case, MacQueen v Frackelton 412 concerned the removal of the minister in charge of a Brisbane Presbyterian church and the enforceability of church rules by the civil courts; the second case, Wylde v Attorney-General for New South Wales,413 concerned a breach of a charitable trust relating to permitted uses of real property held on trust for the Anglican Church; the third case, Scandrett v Dowling,414 considered whether Anglican church rules were binding because of their statutory base; and the fourth case, Ermogenous v Greek Orthodox Community of South Australia,415 the employment relationship between a bishop and an employer in the Greek Orthodox community. The 30 year saga of Mr & Mrs Plenty and the Port Pirie Seventh Day Adventist Church, Plenty & Anor v Seventh Day Adventist Church of Port Pirie416 is the fifth case.
6.2.1 MacQueen v Frackelton The plaintiff, the Rev WS Frackelton, became the minister of the Ann Street Presbyterian Church, Brisbane, in September 1896. Disputes and differences arose between the plaintiff and some members of his congregation. A Commission appointed to investigate the matters reported adversely on 4 December 1906 and requested the plaintiff ‘to place his resignation in the hands of the Presbytery’. The plaintiff did not offer his resignation so the Presbytery reported the matter to the General Assembly with a recommendation that the General
412 (1909) 8 CLR 763. 413 (1948) 78 CLR 224. 414 (1992) 27 NSWLR 483. 415 (2002) 120 CLR 95. 416 [2009] SASC 10.
159 Assembly should dissolve the pastoral tie between the plaintiff and the Ann Street congregation. The General Assembly was due to meet on 7 May 1907.
On 19 April 1907, the plaintiff sought an injunction against the Presbytery of Brisbane to restrain them from removing him from his office as Minister of the Ann Street Presbyterian Church until proceedings had been taken against him in accordance with the procedures for discipline in the Presbyterian Church of Australia in the State of Queensland.
The General Assembly meeting on 9 May resolved that Frackelton be suspended for six months from his position as a minister of the Presbyterian Church in Queensland and further declared the Ann Street Church to be vacant. This was because Frackelton had invoked the aid of the civil courts to restrain the courts of the church from exercising their lawful, spiritual jurisdiction which was an act of insubordination against the authority of the church and a violation of the vows made on his induction as minister of the Ann Street Church.
The dissolution of the pastoral tie between Frackelton and his congregation ended his right to a stipend. The plaintiff then issued a writ for a declaration that the sentence passed on him was illegal and void and also, sought a mandamus to restore him to office. Both actions were consolidated and were tried together before Cooper CJ, who gave judgment for the plaintiff in both actions.
On appeal to the Full Court, the judgment in the first action was set aside and leave to appeal was refused by the High Court on the ground that, up to the time of the issue of the writ in the first action, ‘no civil right of the plaintiff had been infringed’.417
417 MacQueen v Frackelton (1909) 8 CLR 763, 689.
160 There was unsuccessful argument before the Full Court that by the Presbyterian Church Act 1900, the courts of the church are independent judicial institutions of the state whose proceedings cannot be called into question by the Supreme Court and further, that ‘the civil authorities have no jurisdiction over a spiritual body such as the Church’.418 In concurring with the Full Court in dismissing this line of argument, Griffith CJ, added ‘it is sufficient to say that the only way in which the respective rights of the parties can be regarded in a court of law is in the aspect of rights arising under a consensual compact, the interpretation of which it is for the court and not for the parties to the contract, to determine’.419
The argument that under the terms of the consensual compact between the members of the Presbyterian Church in Queensland, the decision of the General Assembly was final was not accepted by Griffith CJ who said, ‘This argument denies the right of the civil court to consider a complaint of a breach of a compact as well as the assertion that the compact confers no rights recognised by a court of law. Of course, a civil court does not act as a court of appeal from a decision of the domestic tribunal made under the powers conferred on it by the compact’.420
Griffith CJ, in considering whether the issuing of a writ in the first action by the plaintiff was a breach of the compact, said:
The general rule that a stipulation, which, if effectual, would oust the jurisdiction of Courts of law to determine questions arising under a contract, is void, as being contrary to the policy of the law. The only case in which it appears that such a question was raised in connection with an ecclesiastical organisation is the Cardross case (22 D., 290), in which the notion that appealing to a Court of law for redress against a breach of the consensual compact entered into by members of the Free Church of Scotland was a breach of the ordination vow (in all respects similar to that taken by the
418 Ibid 689. 419 Ibid 689. 420 Ibid 690.
161 plaintiff) was rejected by the Court of Session. In my opinion it cannot be supported.421
Finally, Griffith CJ considered whether the plaintiff had established by his second action, that he had ‘suffered an infringement of a civil right or, in other words, sustained any loss of money or property’.422 The consequence of the decision of the Assembly was that Frackelton had been deprived of his emoluments as a minister of the Ann Street Church and also prevented from exercising his function as a minister elsewhere in Queensland. Griffith CJ cited with approval Lord Chelmsford LC in Forbes v Eden (1867) LR 1 Sc & Div 568, who said about the appellant in that case, as a minister of the Scotch Episcopalian Church, he had ‘the possession of a particular status, meaning by that term the capacity to perform certain functions, or to hold certain offices, a thing which the law will recognise as a patrimonial interest’.423 The law would recognise that such an interest could not be taken away without a legal remedy.
A further argument was that the plaintiff had to exhaust all his rights under the compact, namely by appealing to the General Assembly of Australia. In the opinion of Griffith CJ, this is not an answer to a breach of contract ‘unless there is an express or implied stipulation that failing to obtain redress in that other way shall be a condition precedent to the right to complain of the breach’.424 Griffith CJ observed that this view was taken by the Judicial Committee in Long v Bishop of Cape Town.425 Griffith CJ concluded that the declaration of right made by the Supreme Court was right and ought to be affirmed.
421 Ibid 691. 422 Ibid 693. 423 Ibid 693. 424 Ibid 695. 425 1 Moo PCC NS 411.
162 O’Connor J agreed with Griffith CJ and in view of ‘the large section of the community to whom the issue is of importance,’ he stated his reasons. His starting point was the settled law:
It has long been settled by British Courts that a religious body not being a State Church is merely a voluntary association bound together by a consensual compact – that the rights of its members inter se depend entirely on the terms and conditions of the compact; that the terms and conditions constitute a contract in which every member binds himself to the whole body and to every other member to act in accordance with its provisions. If, as is generally the case, the Church has by its Constitution created bodies clothed with executives and judicial powers for managing and controlling its spiritual disciplinary and business interests, the Civil Courts will not in general interfere with their acts and decisions. It is only when such bodies exceed their powers, and assume to themselves an authority which the contract has not given them, that the Civil Courts will intervene, and then, only when the party complaining of the wrongful act or decision establishes the fact that he has thereby been injured in his property or in the exercise of some civil rights. Any member who has been so injured may obtain redress in the Civil Courts, and his proceedings must be directed against those of his fellow members who have, contrary to the contract, assumed authority to do the act or give the decision which has caused him injury. If his complaint is against a body of members, such as the General Assembly of the Presbyterian Church of Queensland, he is not bound to join each member as a party. He may, as in the present case, proceed against individuals selected by the Court to represent the whole body for the purpose of the proceedings. 426 [emphasis added].
The second action by the plaintiff was, according to O’Connor J ‘entirely a matter of contract’. What was that contract? The Presbyterian Church Act 1900 (Qld) gave the force of law to various provisions which made up the Constitution of the Presbyterian Church of Queensland. Those provisions constitute the terms of the contract which the plaintiff, and each member of the Presbytery, and of the General Assembly, have promised each other to fulfil, ‘The
426 MacQueen v Frackelton (1909) 8 CLR 763, 696.
163 contract is to be construed as any other contract, reading it as a whole and giving effect as far as possible to every part of it’.427
When the plaintiff was inducted, he took a vow acknowledging the Presbyterian form of government and promised to submit to the government and discipline established and practised in the Church. The defendants contended that this vow required the plaintiff to submit, without question, to the interpretation of the contract, in every respect, by the General Assembly. The mere act of submitting the question of jurisdiction to the civil courts amounted to an act of insubordination. It was contended that the Presbyterian Church had always exercised unlimited control over its members in matters of church government and discipline.
O’Connor J’s response was that whatever might have happened in earlier times, the present code had numerous provisions which contradicted the proposition that the plaintiff was entirely at the mercy of the Presbytery or the General Assembly. But, fundamentally, once the Presbyterian Church ceased to be a state church it had not exercised without question, the unlimited powers now claimed.
O’Connor J said that the civil courts have never recognised the unlimited and unquestioned power claimed:
[I]t is open to this Court to examine the terms of the contract which give jurisdiction to the judicial tribunals of the Church, and to determine whether the General Assembly could, on the materials before it, find that the plaintiff had been guilty of insubordination or had committed a breach of discipline.428
There was no breach of the Church Constitution by the plaintiff. The law gave him the right to raise the question of jurisdiction. A second fatal flaw to the case of the defendant was that the Church
427 Ibid 699. 428 Ibid 701.
164 Constitution gave no power to the General Assembly to try an offence at first instance.
What remedy could the plaintiff claim? According to the defendants, the only remedy was an appeal to the Federal Assembly of the Presbyterian Church of Australia but, as the plaintiff had only submitted to the control of the Presbytery or General Assembly in matters within their jurisdiction, he had ‘the right of appealing to the Civil Courts for redress provided he can show that he had been so injured in the exercise of a civil right as to justify the interference’.429 O’Connor J observed that the plaintiff had lost his stipend through the illegal exercise of power by the Church Court. This was sufficient to invoke the jurisdiction of the civil courts.
In his judgment, Isaacs J began by identifying and addressing five propositions. First, ‘that in the ascertainment and enforcement of rights and liabilities among its members, a Church is regarded by the law in precisely the same light as any other society of men who have entered into association for lawful purposes.’430 The ‘social compact’ is the ‘source and measure of the rights of those who compose the body.’ The courts will construe this contract by the same means as any other contract.
Isaacs J’s second proposition is, ‘the contract must be looked to not merely to see what rights are granted to a member but also to ascertain whether they may be lost, under what conditions and by what means’.431 It was argued, as seen in the judgment of Griffith CJ, that the exclusive jurisdiction of a church court is not challengeable in a court of law. Isaacs J rejects this claim in these words, ‘All powers exercisable by the association, legislative, judicial, or administrative, if intended to bind its own members, must spring
429 Ibid 703. 430 Ibid 704. 431 Ibid 705.
165 from their consent and do not arise from the authority of the general law’.432 Isaacs J then cited with approval, a long extract from Lord Kingsdown’s speech in Long v Bishop of Cape Town as ‘a decisive authority laying the principles upon which a court of law must proceed in order to determine whether a Church Tribunal lawfully possesses the jurisdiction it assumes’.433 Long’s case is considered in chapter 5.
The third proposition is that the consensual compact may extend to authorising the domestic tribunal, in the words of Lord Kingsdown, ‘to determine whether the rules of the association have been violated by any of its members or not, and what shall be the consequences of such violation’.434 This requires more than mere consent. ‘The one exception is where the Constitution contains some provision contrary to law; and every such provision must be disregarded, for the law is not so inconsistent as to enforce what it forbids’.435
The fourth proposition by Isaacs J is that even though the powers agreed to have no limit, normally those powers can only be exercised on certain conditions.436
The fifth proposition stated by Isaacs J is,
[No] Court of law will take cognizance of a breach of the contract except to protect a right of property…If that foundation be wanting I think that Civil Courts which are established for the purpose of protecting temporal rights would decline to take cognizance whatever of the matter, and as ex hypothesi no civil right is invaded, no damage, not even nominal damage, can be presumed.437
432 Ibid 705. 433 Ibid 706. 434 Ibid 707. 435 Ibid 709. 436 Ibid 711. 437 Ibid 713.
166 Isaacs J then moved to apply his conclusions of law to the facts of the case and determined that the first writ issued by the plaintiff was a breach of his vows as a minister. It was then a question of whether the sentence of the assembly was valid. As the internal procedures had not been followed, he held that the sentence was invalid.438
When will a court intervene in an internal ‘church’ dispute? In the absence of property in dispute or an association based on a legally binding contract, Frackelton shows that where the basis of association is a ‘consensual compact’, a court reserves the right to construe the meaning of provisions of the compact. In addition, where a member has been disciplined pursuant to procedures contained in the compact, a court will examine the events to see if the agreed process has been followed. If not, the result of the discipline process will be set aside and damages for breach of contract may be available to the aggrieved member. Whether a question is a matter of doctrine or not, is a question for ultimate decision by a civil court. There was no jurisdictional bar facing Frackelton because he had at risk a proprietary right, that is, his clerical stipend.
The next case to be considered was sparked by a doctrinal issue but jurisdictional bars were overcome by characterising the dispute as a breach of trust. It did require the fiat of the Attorney-General and that was provided.
6.2.2 Wylde v Attorney-General for New South Wales Beginning in September 1947, a case was argued in the Supreme Court of NSW before Roper, Chief Judge in Equity. The suit was instigated by the Attorney-General on the relation of 23 relators, members of the Church of England in the Diocese of Bathurst. The
438 There is at 715-719, a sensitive and useful discussion by Isaacs J on the relationship between minister and congregation and the breakdown of the pastoral ties.
167 defendants were Arnold Lomas Wylde, Bishop of the Diocese of Bathurst and the Church of England Property Trust, Diocese of Bathurst, a body corporate pursuant to the provisions of the Church of England Trust Property Act 1917 (NSW).
The Cathedral Church at Bathurst and all the churches of the Church of England in the Diocese of Bathurst were ‘church trust property’ vested in the Church of England Property Trust, Diocese of Bathurst.
Wylde had compiled a book for use in his diocese, known as 'the Red Book', which contained an Order for the Service of Holy Communion.439 That Order differed from the one set out in the 1662 Book of Common Prayer which was the only book containing the services authorised for use by the Act of Uniformity 1662 (UK).
Since the time of the Reformation, in the Church of England, there has been a division of opinion on the effect of the consecration and consumption of the elements of bread and wine used in the Holy Communion. As a matter of convenience, the Court called these two views, the 'theory of the real presence' and 'the receptionist theory'. It was argued that the 1662 Book of Common Prayer accommodated both theories, whereas the Red Book was consistent only with the doctrine of the real presence. This was because a number of interpolations were made to the 1662 Order, together with the making of the sign of the cross and the ringing of a sanctus bell.
The informants alleged that it was illegal, according to law and the use of the Church of England, for any bishop or priest to use any other order for the administration of the Holy Communion, except that set out in the 1662 Book of Common Prayer. Accordingly, the practice of the Bishop and other priests in the Diocese of Bathurst constituted
439 The title to the regular church services in the Book of Common Prayer, begin ‘The Order for’ followed by the name of the service, for example, The Order for Evening Prayer. The Holy Communion service title is The Order for the Administration of the Lord’s Supper or Holy Communion.
168 breaches of the trusts upon which the churches of the Diocese were held, with the result that members of the various churches of the Diocese of Bathurst were deprived of the benefit of those trusts.
The Attorney sought a declaration that the use of the Red Book was a breach of the trusts on which the churches are held and that the Bishop be restrained from using orders for the administration of Holy Communion other than that contained in the 1662 Book of Common Prayer.
In argument, Teece KC asserted the illegality of the Red Book and the legality of the Book of Common Prayer 1662. Further, that the Bishop had no jus liturgicum after the passing of the Act of Uniformity 1662 (UK). It was a breach of trust to perform in a church vested in the Church of England Property Trust, Diocese of Bathurst, an illegal service.
In opposition, Kitto KC argued that it was not a question of the illegality of the Red Book but instead, whether the actions of the Bishop were a breach of trust. Further, even if all the rules of the Church of England in England apply in New South Wales, there is no breach of trust in this case because there is no rule which requires strict obedience to the order of service contained in the 1662 Book of Common Prayer. The legal obligation in England to conform to the prayer book arises solely from the Act of Uniformity 1662(UK). The Act of Uniformity 1662 (UK) has not been incorporated into the law of NSW.
Judgment was delivered on 17 February 1948. Roper CJ in Eq conceived the issue as a question of trust law: ‘the principal matters of fact to be determined in the suit, are the terms of the trusts on which the property involved are held and whether there has been a breach of those trusts’.440 The Church of All Saints at Canowindra, was one
440 A-G (NSW)ex rel Ashelford v Wylde (1948) 48 SR (NSW) 366, 376.
169 place where the illegal practices had taken place. The land had been given ‘as a site for a church in connection with the United Church of England and Ireland in NSW...upon trust for the erection of a church in connection with the United Church of England and Ireland’. 441 Roper CJ in Eq was satisfied on the evidence that the Bishop had used the Red Book and authorised and encouraged its use by other priests in the diocese in other churches in the diocese which were vested in the defendant corporation and held on similar trusts.
Roper CJ in Eq then went on to outline the history of the Church of England in New South Wales from its beginnings as the established church and its final status, perhaps some time after 1862, as a voluntary association.442 Since that time, at the instance of bodies representing the Church, the New South Wales Parliament has passed enabling legislation dealing with the constitutions of the Church.443 Critical in Roper's judgment is the effect of art 24 of the Church of England Constitutions Act Amendment Act 1902 (NSW), which provided:
No rule, ordinance or determination of any diocesan or provincial synod shall make any alteration in the articles, liturgy, or formularies of the Church except in conformity with any alteration which may be made therein by any competent authority of the Church of England in England.
According to Roper CJ in Eq, the words ‘competent authority of the Church of England in England’ is the United Kingdom ‘Parliament or any authority empowered by it’. 444
Roper CJ in Eq, at 383, agreed with Lowther Clarke’s statement, ‘The legal position of the Church of England in Australia has been defined in recent years by “opinions” obtained in England and Australia
441 Ibid 379. 442 Ibid, see discussion 380-382. 443 The first was in 1866, 30 Victoria, which was repealed and replaced by the Church of England Constitutions Amendment Act 1902 (NSW). 444 A-G(NSW) ex rel Ashleford v Wylde (1948) 48 SR (NSW) 366, 383.
170 independently. These agree in saying that nothing has hitherto been done by any synod in Australia to separate the Church from the Church in England, and that the legal status of the Church in Australia makes it still an integral part of the Church of England and not a Church in full communion therewith’. 445 While not ‘established’ in New South Wales, the rules of the Church of England applied to the extent possible in New South Wales.
In England, the Act of Uniformity 1662 (UK), was part of the general law but in New South Wales it was only a rule of the voluntary association, the Church of England in Australia. In England, there was access to the courts to enforce the terms of the Act. In New South Wales, there were jurisdictional hurdles to jump to access a remedy for breach of the terms of the Act.
On this, Roper CJ in Eq said:
While the Act of Uniformity has never been in force in New South Wales as part of the law of the land, it follows necessarily I think that this fundamental rule of the Church in England was a fundamental rule of the voluntary association in New South Wales. At the time, whenever it was, that that association was formed, there was a variety of uses as to liturgy in England, many of them contrary to the law of the Church, and I think that it cannot possibly be implied that as a rule of the association its members agreed to permit an undefined right to anybody to vary the service which was lawful in England and that it must be implied that the laws of the Church whether they were such laws as being part of the law of the land or otherwise were to bind the association. 446
Roper CJ in Eq, concluded ‘that the administration of Holy Communion according to the order contained in the Red Book is contrary to the rites of the Church of England in New South Wales’.447 As to ‘making of the sign of the cross in the air towards the congregation’ and the ringing of
445 Clarke, above n 112, 92. 446 A-G(NSW)ex rel Ashleford v Wylde (1948) 48 SR (NSW) 366, 384. 447 Ibid 387.
171 a sanctus bell, these actions were illegal in New South Wales as they were illegal in England.448
As to the question of whether the Bishop had committed a breach of trust and could be subject to injunctions, Roper said:
He is not the trustee because the trust property is not vested in him. True, he is a member, by requirement of the Act of Parliament creating it, of the defendant corporation which is the trustee; but here he is being dealt with in his personal capacity and not as one of the corporators of that corporation. He is, however, entitled under the rules of the Church to conduct services in the churches in his diocese. The corporation, that is the trustee, cannot prevent him from doing so and in my opinion on principle and on authority he is personally liable to be injuncted if his acts cause the church property to be used in breach of trust.449
Bishop Wylde appealed and there was argument in the High Court for 5 days in August 1948. Only 4 judges heard the appeal.450
In the view of Latham CJ, this was a suit to secure the performance of charitable trusts. Property held on a charitable trust must be used only for the purposes of the trust. There is no authority in the court to ‘vary the original foundation, and to apply the charity estates in a manner which it conceives to be more beneficial to the public, or even such as the Court may surmise that the founder would himself have contemplated could he have foreseen the changes which have taken place by lapse of time’.451
Latham CJ identified, at 254-255, four issues. First, what were the trusts on which the church property in the diocese is held? Secondly, because of the terms of the trusts, what determines the identity of the Church of England in New South Wales? Thirdly, if it is possible to
448 Ibid, see discussion at 377-378. 449 Ibid 388. 450 Wylde v A-G (NSW)ex rel Ashleford (1948) 78 CLR 224. The judges were Latham CJ, Rich, Dixon and Williams JJ. 451 Ibid 255.
172 ascertain a standard of ritual, has there been a departure from that standard by the bishop? Fourthly, if there are departures, do they constitute a breach of trust where a court should provide a remedy?
Latham acknowledged the difficult dynamic of an organisation being conducted according to principles settled 300 years previously and being committed to doctrines, beliefs and practices likewise settled centuries before. He crystallised the opposing views by contrasting that some church members asserted that the Church in New South Wales is a Church of England, not a Church of New South Wales or Australia. As the Church of England is not a congregational church, the members of a congregation worshipping in a particular church building are not at liberty to adopt any doctrine or ritual which commends itself to them, and still to describe themselves as members of the Church of England. Other members of the Church regard some changes as desirable, even though others may consider the changes to involve an abandonment or repudiation of vital and binding principles:
This case illustrates the difficulties of a Church being what is called a "living church" and at the same time being a Church the doctrines and ritual of which have been fixed by statutes which it has proved impossible to amend. However great these difficulties may be, when it becomes necessary for a court of law to determine rights with respect to church trust property, the court is obviously bound by the law and cannot be affected by past or present breaches of the law, however widespread and tolerated these breaches may have been or may be, nor can the court presume to alter trusts by acceding to the desire of some or many members of the communion to change with the times. There are many who have the strongest objection in matters of doctrine and also in matters of ritual to "changing with the times." If the terms upon which trust property is held require adherence to particular doctrines or observance of a certain ritual, then no practice, however long continued and no wish of a majority which is not expressed in a manner to which the law attaches binding force, can affect the duty of the court; 452
452 Ibid 256.
173 The judgment of Roper CJ in Equity was noted in setting out the history of the Church of England in New South Wales and Latham CJ further observed that ‘by the year 1862, when State aid to religion was withdrawn, the church had plainly become that which it now is, namely a voluntary association organised on a consensual basis.453 Reference was then made to Lord Kingsdown’s words in Long v Bishop of Cape Town that where the Church of England is not established by law, it is in the same position as any other religious body. The members may adopt rules for discipline which will bind those who assent to them.454 Latham CJ then used Lord Romilly MR, in Bishop of Natal v Gladstone455 to explain the Lord Kingsdown citation from Long:
They do not mean, as some persons seem to have supposed, that, because the members of such a church constitute a voluntary association, they may adopt any doctrines and ordinances they please, and still belong to the Church of England. All that really is meant by these words is, that where there is no state religion established by the Legislature in any colony, and in such a colony is found a number of persons who are members of the Church of England, and who establish a church there with the doctrines, rites and ordinances of the Church of England, it is a part of the Church of England and the members of it are, by implied agreement, bound by all its laws. In other words, the association is bound by the doctrines, rights, rites, rules and ordinances of the Church of England, except so far as any statutes may exist which (though relating to this subject) are confined in their operation to the limits of the United Kingdom of England and Ireland." And, "But 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 the native country and their parent church. They are bound by the same doctrines, the same rules, ordinances and discipline. If any recourse should needs be had to the civil tribunals, the questions at issue must be tried by the same rules of law which would prevail if the question were tried in England - with this exception only, that the tribunal would probably be different and that, as the statutes which constitute certain ecclesiastical tribunals in England do not extend to the colonies, the question would have to be determined by the ordinary civil courts
453 Ibid 257. 454 Ibid 257. 455 (1866) 3 Ch 1.
174 which administer justice on the colonies." I take these principles as the basis of my judgment.456 [emphasis added].
It was clear to Latham CJ that the New South Wales statutes intended that the Church of England in New South Wales should continue to be governed by the same rules as those that apply to the Church of England in England. Like Roper CJ in Equity, article 24 of the constitution authorised by the Church of England Constitutions Act Amendment Act 1902 (NSW) was critical. The article provided that:
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 any alteration which may be made therein by any competent authority of the Church of England in England.
As the Court is asked to enforce trusts for the purposes of the Church of England where that church exists in the Diocese of Bathurst in New South Wales, Latham CJ needed to ascertain if there was identity of doctrine and ritual between the Church of England in England and the Church of England in Australia. Latham CJ, at 261, cited Lord Halsbury as to the identity of a church:
Speaking generally, one would say that the identity of a religious community described as a Church must consist in the unity of its doctrines. Its creeds, confessions, formularies, tests and so forth are apparently intended to ensure the unity of the faith which its adherents profess and certainly among all Christian Churches the essential idea of a creed or confession of faith appears to be the public acknowledgment of such and such religious views as the bond of union which binds them together as one Christian community.457
While Latham CJ concluded that the two churches were identical in doctrine and ritual, he was not drawn into deciding between the different doctrinal understandings of the Holy Communion. ‘When a
456 Wylde v A-G (NSW) ex rel Ashleford (1948) 78 CLR 224,257-258. 457 Free Church of Scotland v Overton [1904] AC 515, 612.
175 civil court is called upon to administer trusts for the purpose of maintaining and promoting religious worship it is not for the court to determine the soundness of any particular doctrine or the wisdom of a particular ritual’.458 To reinforce the point, Latham CJ, at 263, again cites the Free Church case:
In the controversy which has arisen, it is to be remembered that a court of law has nothing to do with the soundness or unsoundness of a particular doctrine. Assuming there is nothing unlawful in the views held – a question which, of course, does not arise here – a court has simply to ascertain what was the original purpose of the trust.
As to judicial intervention in an internal church dispute, Latham CJ, at 271, says:
In the State of New South Wales there are no ecclesiastical courts and a member of a church complaining of breaches of trust, as in the present case, must resort to the civil tribunal. There are obvious objections to the determination of questions of doctrine and ritual by a civil court. But, as pointed out in the Free Church Case, no other remedy is available in the absence of the ecclesiastical courts which are associated with the establishment of a State religion. If a plaintiff comes into a court of equity and establishes a breach of a religious trust, his only method of enforcing the trust in this country is to obtain a decree from a civil court. As Lord Halsbury LC said in the Free Church Case (at 627); “‘there is nothing in calling an associated body a Church that exempts it from the legal obligations of insisting that money given for one purpose shall not be devoted to another”. In my opinion no reason has been shown for refusing to afford the only remedy which can prevent the continuance of the breaches of trust of which the informant complains. If the defendant and his supporters, like many others in the Church, are not content with the law as it stands, it is for them to use their efforts to obtain an alteration of the law and not to break the law.
The distaste of Rich J for involving the court in this type of dispute is plain from the opening words of his judgment:
458 Wylde v A-G(NSW) ex rel Ashleford (1948) 78 CLR 224, 262.
176 The subject of this unhappy controversy is only fit for a domestic forum and not for a civil court. Unfortunately it is not an example of “charity” in the New Testament sense or of the command to love one another. The dispute illustrates a saying of Dean Swift that “we have just enough religion to make us hate but not enough to make us love one another”.459
The key question in the mind of Rich J is the need for the relators
to satisfy the Court that, properly construed, these very general trusts of the Church properties in question, because of what is inherent or implied in them, forbid any departure from the order of services in the Book of Common Prayer 1662 and, in particular, from the Office of Holy Communion set out in that book.460
Or, in other words, whether the Prayer Book liturgy ‘must be embodied in or deemed to be written into the trusts and that any variation thereof or departure there-from constitutes a breach of trust and a diversion of the user of the properties from the Church of England’.461 Rich J noted that the Act of Uniformity 1662 (UK) did not apply to Australia. The Act imposed personal obligations and penalties on clergy but did not impress statutory trusts on church properties. He was not satisfied that the relators had made out their case and dismissed the appeal.
Dixon J commences his judgment with a recitation of the early history of the Church in New South Wales and the effect of the Privy Council cases from South Africa. He then notes the effect of the Church of England Constitutions Act Amendment Act 1902 on the church constitution contained in the schedule:
459 Ibid 273. 460 Ibid 274. 461 Ibid 274.
177 [T]hat with respect to property the statute gives these constitutions the same effect as if they were contained in a trust deed. In other respects, however, they stand as the provisions of a consensual compact.462
For Dixon J, the ‘property’ element was critical to any judicial intervention. As the jurisdiction of the court is founded upon property, there is the need to enforce the property trust, but in the opinion of Dixon J, ‘a bishop or clerk in holy orders conducting a service under the authority of the Church cannot be said to invade a right of property, to commit a breach of trust because he departs from the order prescribed by the Book of Common Prayer’.463 The fact that the church is not established means ‘that the basis of ecclesiastical authority is different, not that the whole conception of Church government is changed and that which belonged to the spiritual power is transmuted to a matter of proprietary right’.464 He concluded ‘that none of the practices complained of involves any diversion of property from the purposes to which the trusts, so ascertained, devote it’.465
Williams J supported the Chief Justice in his judgment:
that the liturgy prescribed by the Act is made by the Act a fundamental law of the Church of England and that it follows necessarily that this liturgy is a fundamental rule of the voluntary association in New South Wales. Otherwise I fail to see how the Church of England in New South Wales can be an integral part of the Church of England.466
For Williams J, ‘[t]he crucial question is whether it is a breach of trust to conduct a service of public worship in a church erected on land subject to a trust to erect a Church of England which is not a lawful service of the Church of England’.467
462 Ibid 287. 463 Ibid 295. 464 Ibid 293. 465 Ibid 290. 466 Ibid 303. 467 Ibid 309.
178
In the event, Latham CJ and Williams J allowed the appeal to the extent of making variations to the Supreme Court decree so that the decree applied only to the churches in the diocese where the trust was proved. Thus, the use of the Red Book, the sign of the cross and the sanctus bell could not be used in the churches identified in the evidence.
Rich and Dixon JJ allowed the appeal and that judgment should be set aside. As the High Court was divided evenly, s 23(2)(B) of the Judiciary Act 1903 (Cth), operated to affirm the decision of Roper CJ in Equity.
On the surface, Wylde is an example of using trust law to resolve an internal church dispute. However, the distaste of Rich J in adjudicating this type of case is an indication that this route is not for the faint- hearted. Even when there are sufficient public documents delineating the terms of the trust, there remains the question of exegesis. Since Wylde, Australian Anglicans have become an independent church and the General Synod of the Anglican Church of Australia has authorised measures giving greater liberty for liturgical variations.
6.2.3 Scandrett v Dowling In Scandrett the plaintiffs468 sought by summons an injunction to prevent the Rt Rev Owen Dowling, Bishop of Canberra and Goulburn from ordaining certain women as priests in the Anglican Church of Australia. The application was first considered by the Vacation Judge who refused to grant the Injunction.469 The Court of Appeal granted an interim injunction to restrain the proposed ordinations
468 Dr LA Scandrett, a layman from the diocese of Sydney, the Rev David Robarts, from Melbourne Diocese, formerly Dean of Perth and the Rev Dalby Primmer from Canberra/Goulburn Diocese. 469 Scandrett v Dowling No 40040/92 unreported, NSWSC, Rogers CJ Commercial Division, 28 January 1992.
179 pending a final determination of the plaintiffs claim.470 After a number of interlocutory issues were dealt with, a differently constituted Court of Appeal was asked to determine a number of questions before deciding if the interim injunction would become permanent.471 Following consideration of the questions, the summons was dismissed. Mahoney JA and Priestley JA gave separate lengthy judgments and Hope AJA concurred with Priestly JA.
The essential question in Scandrett concerned the character of the constitution of the Anglican Church in New South Wales and the extent to which it was binding on the members. Or, to put it in other words, would the court intervene in the internal dispute to make the constitution binding on members? In the event, the court held that because of the text of the covering Act, only the constitutional provisions relating to property were binding on members.
Priestly JA commenced his reasons in this way:
Alpha and omega – the publicity this case has had in some of its stages must have made many people think that it is about whether women can be ordained as priests in the Anglican Church. The men who have brought the case say that it is about no such thing; it is not about a claim by men that God has willed that one half of humanity is unfit, in all social conditions and for all time, for a religious office which is important to a great many people, male and female; what it is about, they say, is their rights as church members and members of various bodies in the church’s organisation to get a secular court to enforce what they say is the proper interpretation of the church’s Constitution.472
The plaintiffs, according to Priestly JA, claimed that their civil rights were enforceable at law for two reasons. First, because the ‘Constitution is a Schedule to an Act of the NSW Parliament, Act 16 of 1961, it had legally binding effect on all members of the church in
470 Scandrett v Dowling No 41141/92 unreported, NSWCA, Gleeson CJ, Samuels JA and Meagher JA, 31 January 1992. 471 Scandrett v Dowling (1992) 27 NSWLR 483, Mahoney JA, Priestly JA and Hope AJA. 472 Ibid 512 E.
180 New South Wales not only in regard to church property but also in regard to the organisation of a Church’.473 The second ground was that ‘all members of the church in NSW were parties to a consensual compact embodied in the Constitution and that this compact had contractual binding legal effect on every member’.474
Priestly JA disagreed with both these propositions. In his opinion, s 2 of the 1961 Act ‘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’.475 He also disagreed with the second proposition: ‘In my opinion the parties to the consensual compact upon which the plaintiffs rely are bound to it by their shared faith, not the availability of the secular sanctions of the judgments, orders or decrees of State courts of law’.476
Priestly JA described the consensual compact as being ‘based on religious, spiritual and mystical ideas, not on common law contract’. The compact had the same effect as a common law contract only when matters of church property were involved with other matters dealt with by the compact. Any issues raised by this case had to ‘be resolved in the Church’s internal procedures and these proceedings must be dismissed’.477
Mahoney JA noted that the plaintiff’s claimed that the proposed ordination would be a breach of the rules of the Anglican Church of Australia.478 However, in his view, judicial invention to remedy a breach of the rules of a voluntary association would only be available if three cumulative steps were satisfied. First, were the rules of the voluntary association intended to create legally binding rights and obligations between the members? Secondly, has there been a breach
473 Ibid 512 F. 474 Ibid 513 A. 475 Ibid 512 G. 476 Ibid 512 A. 477 Ibid 513C. 478 Ibid 488G to 489 A-C.
181 of those rules? Thirdly, was it intended that legal consequences would flow from the breach of the rules? Fourthly, do those consequences justify intervention to restrain the breach?479
After an exhaustive historical survey, Mahoney JA concluded that, given the history of the Anglican Church in Australia, the rules of the association were ‘intended as capable of giving rise to legally enforceable rights and obligations’.480 On the assumption that the proposed ordination would be a breach of the rules,481 Mahoney JA then considered whether the breach should be restrained by injunction. He decided, not.482
The reasons of both Mahoney JA and Priestly JA contain detailed historical surveys of the legal status of the Church of England in Australia. Those surveys traversed the issue of ‘establishment’, the South African cases considered in chapter 5 and the Church of England subject matter dealt with in chapter 4.
In the result, Cameron v Hogan483 was considered and followed. The court held that the effect of s 2 of the 1902 Act was binding in relation to property matters but as to the rest of the consensual compact, it was binding only in foro conscientiae; in other words, the court would only intervene where property rights were at issue. This was consistent, in Priestly JA’s view, with the South African cases which were ‘very directly concerned with civil rights relating to property’.484 Thus when spiritual issues become mixed with a church property issue, the property matter is treated as if it were part of a common law contract but in the words of Priestly JA, that ‘does not in my opinion alter the primary basis of that compact or contract’. 485 The basis of association
479 Ibid 503 G. 480 Ibid 505 D. 481 Ibid 506 D. 482 Ibid 506 G. 483 (1934) 51 CLR 358. 484 Scandrett v Dowling 27 NSWLR 483, 554 B. 485 Ibid 554F.
182 remains voluntary and consensual, rather than legal and contractual. Hope AJA, without delivering separate reasons, agreed with Priestly JA. Thus the majority of the Court of Appeal held that the effect of s 2 of the 1902 Act was binding in relation to property matters but as to the rest of the consensual compact, it was binding only in foro conscientiae.
On the issue of judicial intervention into the affairs of an unincorporated association, and specifically this association, Mahoney JA said: There are, in my opinion, substantial reasons why the Court should conclude that, in general, legally binding rights and obligations can arise from the rules of the Anglican Church. The rules of the Church are concerned with matters of importance to its members. They are not concerned merely with a ‘common interest’. The doctrines, rituals and practices are matters by which its members order their lives and to which they, as required, may dedicate themselves and their property. They are not the result merely of the members of the Church having decided to combine for the effecting and observance of them: they derive from centuries old organisations to which the members have come by adherence. These are matters which, I think, the members would see as capable of and, indeed, as warranting enforcement in formal court procedures in appropriate respects and in appropriate circumstances…It is always a matter of regret that issues, particularly religious issues, cannot be settled by goodwill rather than by litigation: that is not in question. But experience shows that, in religious and in non-religious contexts, there are sometimes issues which cannot be agreed or resolved by compromise. The question is whether the courts should be available to resolve the disputes which cannot be resolved in any other way. Views differ as to the importance and, perhaps, the relevance of disputes as to matters of religion. But to many they are both relevant to their lives and important. I would, with respect, see the remedies of the judicial system as no less appropriate to such disputes than to disputes as to, for example, trade unions, football organisations and the like. In my opinion, the contemplation of those concerned with the Anglican Church and their intentions was that, in appropriate respects and circumstances the meaning of their rules could be determined by the courts.486[emphasis added].
486 Ibid 505-506.
183 In using the phrase ‘for example, trade unions, football organisations and the like’ in the passage just quoted, did Mahoney JA have in mind Wootten J’s sentence in Grogan v McKinnon, ‘I consider that citizens are entitled to look to the courts for the same assistance in resolving disputes about the conduct of sporting, political and social organisations as they can expect in relation to commercial institutions?’. 487 This expectation of association members may provide a platform for common law development of another basis for judicial intervention.
Thus in summary, the majority held that in New South Wales, Anglican Church rules would be enforceable if property rights were at issue. Otherwise, the Church rules were binding in foro conscientiae. Mahoney JA said that while in general, the rules of the Church were enforceable in contract, not all of them were. He did not make clear which rules were enforceable and which were not.
The primary claim was based on the provisions of the 1902 and 1961 Anglican Church Constitution Acts. In exercise of the powers given by those Acts, the Synod of the Diocese of Canberra/Goulburn passed ordinances to authorise the ordination of women priests. The plaintiffs claimed that this power had been abused. In the alternative, the plaintiffs claimed that there was a contractual right to have the ‘constitution’ of the Church observed. As ordinations take place in a church building, the plaintiffs could have mounted a trust case similar to Wylde by claiming that the proposed ordinations would be contrary to the trusts on which the property is held. For reasons unknown, this ‘property’ aspect was never pursued by the plaintiffs. Where a charitable trust is involved, only the Attorney-General of the State has locus standi and this procedural hurdle may have been too difficult to overcome.
487 [1973] 1 NSWLR 290, 298.
184 6.2.4 Ermogenous v Greek Orthodox Community of South Australia Spyridon Ermogenous was employed under a contract of employment with the Greek Orthodox Community of SA Inc. as Archbishop of the autocephalous Greek Orthodox Church in Australia. When his employment was terminated, he made a claim for long service leave and annual leave which was due to him as an employee. An Industrial Magistrate upheld a claim that the Community was liable to pay the Archbishop for accumulated annual leave and long service leave, together with interest.
Appeals to a single judge of the Industrial Relations Court of South Australia and from there to the Full Court of the Industrial Relations Court were both dismissed. The Community was successful in their appeal to the Full Court of the Supreme Court.488 Ermogenous then appealed to the High Court.489
In the High Court the appellant argued that the South Australian Supreme Court had wrongly formulated the test for intention to create legal relationships where the dealings were between a church and a minister of religion. Emphasis had been wrongly placed on the subjective intention of the parties.
Where church members intend their church rules to be contractually binding there is jurisdiction for court intervention. It is then become necessary for a court to test the contractual intention of the members. The special leave to the High Court confined the appeal to two questions. First, had the Supreme Court erred in holding it was open to it to make findings of fact contrary to findings of fact made at first instance by the Industrial Magistrate? The second question was
488 Greek Orthodox Community of South Australia Inc v Ermogenous (2000) 77 SASR 523 (Doyle CJ and Bleby J, Mulligan J dissenting). 489 Ermogenous v Greek Orthodox Community of South Australia (2002) 120 CLR 95.
185 ‘whether the Supreme Court erred in holding there was no intention to create legal relations between the parties’.490
In a joint judgment, Gaudron, McHugh, Hayne and Callinan JJ upheld the appeal. At the beginning, they sounded a caution on terminology.491 There was then a summary statement on the general issue of intention to enter legal relationships:
It is of the essence of contract, regarded as a class of obligations, that there is a voluntary assumption of a legally enforceable duty. To be a legally enforceable duty there must, of course, be identifiable parties to the arrangement, the terms of the arrangement must be certain and, unless recorded as a deed, there must generally be real consideration for the agreement. Yet the circumstances may show that the parties did not intend, or cannot be regarded as having intended, to subject their agreement to the adjudication of the courts.492
The judgment then discussed the application of this contractual element and how it was dealt with by the South Australian Supreme Court. The search for intention to enter legal relations:
requires an objective assessment of the state of affairs between the parties…the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules.493
The Supreme Court majority (Doyle CJ and Bleby J) started with the proposition that an intention to enter contractual relations is not to be presumed where the arrangement concerns the engagement of a
490 Ibid [51]. 491 Ibid [99] ‘No assumption can or should be made that the organisation or institutions of the church and community in and with which the Appellant worked in Australia was necessarily similar to the organisation or institutions of the churches of the western or Latin tradition. To take a seemingly small example noted by the Industrial Magistrate (1), the witnesses before him spoke of the ‘consecration’ of priests but the ‘ordination’ of bishops, reversing the customary usages of the western or Latin tradition. This is no more than one example of the error that may be made if there is an unthinking application of the practices of one tradition to another.’ 492 Ibid [24]. 493 Ibid [25].
186 minister of religion but must affirmatively be proved. Such arrangements were similar to ‘family arrangements’ which are not intended to give rise to binding legal obligations. The High Court did not care for the use of the ‘language of presumptions’ in this context, as the presumption may lead to the proposition that arrangements about clergy remuneration do not give rise to legal obligations. In practice, the proposition ‘may rapidly ossify into a rule of law, that there cannot be a contract of employment of a minister of religion, distorting the proper application of basic principles of the law of contract’.494
Just as the High Court were vigilant about distorting the application of contract law principles, they were also on guard against ‘unwarranted assumptions’ that ‘usual’ practices of church governance were the norm. The warning was that ‘[no] such assumptions can be made’.495
The Industrial Magistrate held that the appellant was employed by the respondent under a contract of employment. He ‘recognised the respondent was not a “church.” Its functions were concerned with more than religious matters. Its members were not all observant practitioners of the Greek Orthodox faith’.496 The Full Court sought to separate the ‘church’ function aspects of the Community from the social activities and concluded that the appellant did not enter a contractual arrangement for the performance of his religious duties. That is, the relationship between a minister and church is entirely spiritual, with the result that there could not be a contractual relationship. The High Court would have none of this:
An inference that there was no intention to create legal relations depended upon making an assumption, contrary to the facts found below, that the “church” was distinct from the “Community”, or it depended upon discerning
494 Ibid [27]. 495 Ibid [28]. 496 Ibid [41].
187 from the decided cases a proposition more general or absolute than those decisions warrant.497
Kirby J began his own reasons this way:
To hold that an archbishop is engaged under a contract with a community organisation, indeed a contract of employment, challenges common notions about the status and functions of an archbishop and the common features of contracts of employment as they are generally understood in Australian law. Confronted by such a proposition, it would not be surprising for a decision maker to question whether such a legal relationship was apt to apply to a person such as an archbishop.498
Kirby J agreed with the joint reasons, that the Supreme Court was in error to overturn the findings of the Industrial Magistrate. To classify the relationship between a minister of religion and an employing body associated with the minister’s religion as ‘outside a legally enforceable contract of employment, because of the “spiritual character” of the minister’s vocation supposes a principle that is too widely expressed’. 499 Kirby J noted the different history in Australia of relations between religious organisations and the civic authorities, with specific reference to the Red Book Case500 and Scandrett v Dowling.501 Certainly by the middle of the 19th century the legal status of the Church of England churches and other religious bodies rested on nothing more than the ‘voluntary consensual compact’ between the members of the particular church.
Kirby J contrasted some aspects of the ‘relations inter se of members’ of unincorporated associations which would not be treated by the courts as ‘amounting to an enforceable contract’502 with other cases where by statute or common law it was possible ‘to resort to
497 Ibid [45]. 498 Ibid [48]. 499 Ibid [62]. 500 A-G(NSW) ex rel Ashleford v Wylde (1948) 48 SR (NSW) 366, 380 and Wylde v A-G (NSW) ex rel Ashleford (1948) 78 CLR 224. 501 (1992) 27 NSWLR 483. 502 Ermogenous v Greek Orthodox Community of South Australia (2002) 120 CLR 95, [64] quoting Cameron v Hogan (1934) 51 CLR 358, 371.
188 the courts to uphold or enforce proprietorial claims’.503 He was unconvinced that the English cases cited by Bleby J allowed a conclusion that, in Australia, a contract with the usual features of an employment contract
loses that character because it relates to the vocation of a minister of religion. A minister of religion must be housed, must eat, be clothed and otherwise be provided for. The fact that his or her vocation is, at one level, spiritual in purpose and character does not, of itself, remove the possibility that arrangements for necessities may have been intended to be enforced when it is proved that such arrangements have been breached.504
Kirby J concluded:
[T]here is therefore no presumption that contracts between religious or associated bodies and ministers of religion, of their nature, are not intended to be legally enforceable. At least where the contracts concern proprietary and economic entitlements, of the kind which in this case Archbishop Ermogenous sought to enforce (and certainly where they are not intertwined with questions of religious doctrine that a court would not feel competent to resolve according to legal norms) there is no inhibition either of a legal or discretionary character that would prevent enforcement of such claims when they are otherwise proved to give rise to legal rights and duties.505 [emphasis added].
The Appeal was allowed with costs, orders of the Full Court of the Supreme Court of South Australia were set aside, and the matter was remitted to that Court for further hearing and determination conformably with the reasons of the High Court.
503 Ermogenous v Greek Orthodox Community of South Australia (2002) 120 CLR 95, [64] referring to Scandrett v Dowling (1992) 27 NSWLR 483, 503-504. 504 Ermogenous v Greek Orthodox Community of South Australia (2002) 120 CLR 95, [66]. 505 Ibid [74].
189 6.2.5 Plenty v Seventh Day Adventist Church of Port Pirie This case is an appeal to the Full Court of the South Australian Supreme Court from the decision of a Supreme Court judge at first instance.506 Although the appellants were successful in obtaining a declaration on their expulsion from the church, they claimed that the trial judge had erred in rejecting claims for damages based on contract and tort. Other claimed errors related to loss of reputation and costs.
Gray J delivered the leading judgment and commenced his reasons with a chronology. The events have their origins in the disfellowshipping on 1 December 1979 of Sydney Graham Plenty and Deeane Plenty, the plaintiffs and appellants, from the Seventh Day Adventist Church of Port Pirie, the defendant and respondent. The trial judge described the allegations leading to the disfellowshipping in these words:
The original allegations made against Mr Pretty were for disorderly conduct, wilful and habitual falsehood and persistent refusal to recognise properly constituted church authority. Similar charges were laid against Mrs Plenty with the exception of the charge of disorderly conduct.507
After several decades of delay, the proceedings went to trial in 2002. On 10 March 2003, the trial judge concluded that Mr and Mrs Plenty had been denied natural justice and made a declaration ‘that the purported disfellowshipping of the plaintiffs from the defendant church on 1 December 1979 was void and of no effect’.508 The plaintiffs were not given adequate information about the charges made against them so as to enable them to properly defend themselves. In addition, they were not advised of changes and amendments to the charges. No opportunity was given to them to
506 Plenty & Anor v Seventh Day Adventist Church of Port Pirie [2009] SASC 10. 507 Ibid [29]. 508 Ibid [2].
190 make submissions on penalty, after being found guilty of the amended charges in their absence.
Following the March 2003 decision, Mr and Mrs Plenty amended their statement of claim to seek damages for breach of contract and for breach of a duty to take care. On the contract claim, there were two questions to be answered by the court. Was there in fact a contract, and if there was, did the plaintiffs suffer compensable loss? The judge reviewed in some detail the observations of the High Court in Cameron v Hogan509 and Ermogenous v Greek Orthodox Community of SA Inc.510 Gray J then set out a lengthy passage from Cameron v Hogan511 which had been considered by the trial judge. The passage dealt with the difficulties in suing a voluntary association. The joint judgment in Ermogenous approved and applied the observations in Cameron v Hogan. Armed with these precedents, the judge examined the circumstances of the church, the nature of its membership and in particular its Church Manual. He reached the conclusion that the plaintiffs had not established that there was a contract in existence. He took the view that there was no more than a consensual compact that fell short of creating contractually binding rights and duties, enforceable in courts of law. Vanstone and Anderson JJ concurred with Gray J in dismissing the appeal.512
6.3 Summary This chapter examined five cases involving Australian internal church disputes spanning a century and in different church denominations. While each case involved application of legal principles settled in earlier cases, the factual circumstance were not so unique so as to preclude a similar dispute occurring again. What can be distilled from
509 Cameron v Hogan (1934) 51 CLR 358. 510 Ermogenous v Greek Orthodox Community of South Australia (2002) 120 CLR 95. 511 Plenty & Anor v Seventh Day Adventist Church of Port Pirie [2009] SASC 10, [39] citing Cameron v Hogan (1934) 51 CLR 358, 370. 512 Ibid [43].
191 the decisions to equip church leaders to manage and settle internal disputes and avoid costly litigation?
The jurisdictional principle in Forbes v Eden513 (see section 2.2 of chapter 2) was repeated in Frackelton, namely the need for a civil right to be infringed. Frackelton’s loss of stipend through an illegal exercise of power by the Church Court was sufficient to invoke the jurisdiction of the court. As Isaacs J put it, there was a need to ‘protect a right of property…if that foundation be wanting I think that Civil Courts which are established for the purpose of protecting temporal rights would decline to take cognizance whatever of the matter’.514 Even where the members of the association relate to each other by consensual compact, Griffith CJ says of such compact, ‘the interpretation of which it is for the court and not for the parties to the contract, to determine’.515
In Wylde, despite the church context and the distaste of two High Court judges, it was a question of determining what were the terms of the trust followed by, deciding if the trust had been breached. In Wylde, the four High Court justices were evenly divided. While that might reduce the precedent value of the case, the principles articulated are clear. If the terms of the trust relate to property, the trust will be enforced.
It was the property aspect in Scandrett which enabled the Court to separate the legal obligations binding the members of the church from other member obligations. Because of the precise terms of the Anglican Church of Australia Constitutions Act 1902 (NSW), the constitution contained in the schedule to that Act was binding on church members only in matters relating to property. Scandrett held that other obligations were for the conscience of members.
513 Forbes v Eden (1867) LR 1 Sc & Div 568. 514 MacQueen v Frackelton (1909) 8 CLR 763, 367. 515 Ibid 689.
192 Two final points emerge. First, from the last Plenty case, it was reiterated that any internal association tribunal proceedings must afford the accused person due process and natural justice. Secondly, from Emmogenous, there is no presumption that arrangements concerning the employment of clergy are not meant to be legally binding. In the view of the High Court, such a presumption corrupts the ability to apply settled principles of contract law to analyse of the factual circumstances concerning intention to enter legal relations.
In a recent text on equity, the authors say where expulsion from the association is in view, there has been a change in emphasis from property or proprietary rights to examining the relationship between members to see if that relationship gives rise to contractual rights, particularly in relation to the right to expel a person from membership.516 If a person's livelihood is affected by the expulsion this will be a key factor to be been taken into account by the courts.
Just on the basis of the five cases considered in this chapter, it is not possible to assert that courts will never intervene in internal church disputes.
The next chapter examines the concept of ‘property’ as a proprietary interest as a major entry point for courts seeking jurisdiction to resolve an internal dispute. The Anglican Church constitutional provision of a tribunal as a mechanism to resolve internal church disputes is also considered.
516 Peter Young, Clyde Croft and Megan Smith, On Equity (Lawbook Co, Sydney: 2009), 235.
193
7 OTHER AVENUES TO RESOLVE INTERNAL DISPUTES
7.1 Introduction As seen in chapter 2, where proprietary rights are at stake, the court will have a basis to intervene in the affairs of an unincorporated association to resolve an internal dispute. Secondly, if a trust is involved, as in Wylde v Attorney-General (NSW) ex rel Ashleford,517 court intervention is available to remedy a breach of trust. Thirdly, a practice or policy of judicial activism may quarantine old doctrines of non-intervention as in the cases which have distinguished Cameron v Hogan.518 This chapter, with particular focus on the Anglican Church in New South Wales, examines some property concepts and statutory provisions which might broaden the ‘property’ entry point for a court to adjudicate on an ‘internal dispute’ in a church which is organised as an unincorporated association. A second purpose is to summarise the present Anglican Church constitutional arrangements for resolving internal disputes.
7.2 Managing Church Property Unincorporated associations usually hold real property through trustees. Apart from the burden of personal liability, there is the perennial problem of replacing those who die or who no longer wish to hold the position. A common answer is to appoint a corporation as trustee. As noted earlier in chapter 2 at section 2.1, the conceptual and jurisdictional problems posed by unincorporated associations have been framed by Baxt in four questions. The first question posed by Baxt concerned the devise of property to unincorporated associations.519 The use of a corporate trustee solves this ‘Baxt’ question and as far as the Anglican Church in New South Wales is
517 (1948) 78 CLR 224. 518 (1934) 51 CLR 358. 519 Baxt, above n 100.
194 concerned, the statutory property trusts provide the answer.520 Two other ‘Baxt’ questions directed attention to the ability of associations to contract and hold property as well as taking property as devisee. For the Anglican Church in New South Wales and for most other churches in New South Wales, any problems exposed by these two Baxt questions relating to power to contract and the management of property, find their solution in church-specific legislation. Such legislation grants specific contractual powers and the ability to effectively manage property. The next section looks at this. The fourth question about the rights of members to enforce the terms of the constitution has been the main focus of this thesis.
7.2.1 Aid from the legislature From the middle of the 19th century, in the Colony of New South Wales, there was aid from the legislature to the members of the ‘United Church of England and Ireland in New South Wales’ to assist them to ‘manage the property of the said Church’.521 Since then, for Anglicans, successive Acts have facilitated the ‘holding, management and use of property’, and made property decisions binding on church members.522 Aid from the legislature is not confined to the Anglican denomination. The New South Wales Parliament has made statutory provision to assist various church governing bodies to hold and manage property and to vary any trusts on which that property is held, on a cy-près basis, without the need and expense of equity proceedings.523
520 Anglican Church Property Trust Act 1917 (NSW). 521 Act 30 Victoria, an Act to enable the members of the United Church Of England and Ireland in New South Wales to manage the property of the said Church, 1866. That Act was repealed and replaced by the Church of England Trust Property Incorporation Act 1881 (NSW) and then by the Anglican Church of Australia Trust Property Act 1917 (NSW) 522 Anglican Church of Australia Constitutions Act 1902 (NSW); Anglican Church of Australia Trust Property Act 1917 (NSW); Anglican Church of Australia (Bodies Corporate) Act 1938 (NSW). 523 See eg, Baptist Incorporation Act 1919 (NSW); Baptist Churches of New South Wales Property Trust Act 1984 (NSW); Churches of Christ in New South Wales Incorporation Act 1947 (NSW); Churches of Christ, Scientist, Incorporation Act 1962 (NSW); Coptic Orthodox Church (NSW) Property Trust Act 1990 (NSW); Fellowship of Congregational Churches (NSW) Incorporation Act 1977 (NSW); Greek Orthodox Archdiocese of Australia Consolidated Trust Act 1994 (NSW); Holy
195 7.2.2 What is property? In common law, the term ‘property’ encompasses real property as well as personal property. In the four New South Wales Acts which deal specifically with the Anglican Church the full meaning of property is comprehended.524
However, does the legal concept of ‘personal property’ extend to the holding of an ‘office’? Or, to put it another way, is the right to appoint a person to an official position in an association ‘an interest in property’? If an ‘office’ is ‘property’, this may provide a ground for judicial intervention in the affairs of an unincorporated association.
In Bailey v The Uniting Church in Australia Property Trust (Qld),525 the appellants sought declarations concerning the right to appoint Councillors to the governing body of Emmanuel College, a Hall of Residence in the University of Queensland. One question for determination was whether the phrase, ‘all interests in property’ in s 3 of the Presbyterian Church of Australia Act 1971 (Qld) included the right to make the appointments to the governing board of the College. McPherson J noted while the 1971 Act used the term ‘all
Apostolic Catholic Church of the East Property Trust Act 1992 (NSW); Macedonian Orthodox Church Property Trust Act 1998 (NSW); Methodist Church of Samoa in Australia Property Trust Act 1998 (NSW); The Presbyterian Church (New South Wales) Property Trust Act 1936 (NSW); Presbyterian Church (Corporations) Act 1995 (NSW); Reorganised Church of Jesus Christ of Later Day Saints Property Trust Act 1959;Roman Catholic Church Trust Property Act 1936 (NSW); Roman Catholic Church Communities, Lands Act 1942 (NSW); Russian Orthodox Church (NSW) Property Trust Act 1991 (NSW); Salvation Army (New South Wales) Property Trust Act 1929 (NSW); The Synod of Eastern Australia Property Act 1918 (NSW); Uniting Church in Australia Act 1977(NSW). 524 The Acts referred to are: (1) By s 2 of the Anglican Church of Australia Constitution Act 1961 (NSW), any canons and rules made under the constitution ‘shall be for all purposes connected with or in any way relating to the property…binding on the Bishops, clergy and laity…’ The Anglican Church Trust Corporation created by Chapter X of the constitution annexed to that Act ‘may hold and acquire any real and personal property…’; (2) By s 4 of the Anglican Church of Australia Constitutions Act 1902 (NSW) any ordinances or rules (made by a diocesan synod) ‘are and shall be for all purposes connected with or in any way relating to the property of the Church…binding on the members.’ (3) S 4 of the Anglican Church Trust Property Act 1917 (NSW) defines ‘church trust property’ to include ‘any real and personal property.’ (4) By s 6 of the Anglican Church of Australia (Bodies Corporate) Act 1938 (NSW), each body corporate constituted pursuant to the Act ‘may take and hold any real and personal property.’ 525 1984 1QdR 42.
196 interests in property’ a definition of ‘property’ is found in s 5 of the Uniting Church of Australia Act 1977 (Qld) where that term is to include
real and personal property and any estate or interest in any real or personal property and any debt and anything in action and any right to receive income and any other right or interest.526
That definition, according to McPherson J, has ‘a lengthy legislative history and is traceable in one form or another back to the English Conveyancing Act 1881’.
In a comprehensive summary of authorities, McPherson J, citing Jones v Skinner, 527 said that the term ‘property’ is ‘the most comprehensive of all terms, which can be used, inasmuch as it is indicative and descriptive of every possible interest that a party can have.’ In so far as ‘property’ includes ‘right’ (as by the definition in s5 of the 1977 Act), the word ‘right’, as defined in Jowitt’s Dictionary of English Law (2nd ed.), is said to mean ‘a capacity residing in one man of controlling, with the assent and assistance of the State, the actions of others’. 528
In St Vincent de Paul Society (Qld) v Ozcare Ltd,529 Muir JA cited Lord Wilberforce: ‘Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties and have some degree of permanence or stability’.530 He reinforced the breadth of meaning of the term ‘property’ by reference to the McPherson J passages mentioned in the previous paragraph.
526 Ibid 57. 527 (1836) 5 LJCh 90. 528 Bailey v The Uniting Church in Australia Property Trust (Qld) 1984 1QdR 42, 58. 529 [2009] QCA 335, [57-59]. 530 National Provincial Bank Ltd v Ainsworth [1965] AC 1175, 1247-8.
197 These cases broaden the meaning of ‘property’ and may make it easier to find a proprietary interest to base a claim for judicial intervention. In Scandrett v Dowling531 there remains the curious question as to why ordination to the office of priest in the Anglican Church of Australia was not argued as a matter of property. The customary law of the Church found in Canon 33 of the Canons of 1603, requires that a person should not be ordained as a deacon or priest unless there is a position or vacancy to fill in a church.532
7.2.3 Property held on trust As noted earlier, unincorporated associations can employ the trust device for holding property. Some associations elect or appoint individuals to act as trustees while others register a corporation, commonly a company limited by guarantee, to perform that function. While trustees’ duties can be onerous, the court can be approached for advice.533
531 (1992) 27 NSWLR 483. 532 Canon 33: The Title of Such as are to be Made Ministers. It hath long since provided by many decrees of the ancient fathers, that none should be admitted either deacon or priest, who had not first some certain place where he might use his function. According to which examples we do ordain, that henceforth no person shall be admitted into sacred orders, except he shall at the time exhibit to the bishop, of whom he desireth imposition of hands, a presentation of himself to some ecclesiastical preferment then void in that diocese; or shall bring to the said bishop a true and undoubted certificate, that either he is provided of some church within the said diocese, where he may attend the cure of souls, or of some minister's place vacant, either in the cathedral church of that diocese, or in some other collegiate church therein also situate, where he may execute his ministry; or that he is a fellow, or in right as a fellow, or to be a conduct or chaplain in some college in Cambridge or Oxford; or except he be a master of arts of five years standing, that liveth of his own charge in either of the universities; or except by the bishop himself, that doth ordain him minister, he be shortly after to be admitted either to some benefice or curateship then void. And if any bishop shall admit any person into the ministry, that hath none of these titles as is aforesaid, then he shall keep and maintain him with all things necessary, till he do prefer him to some ecclesiastical living. And if the said bishop shall refuse so to do, he shall be suspended by the archbishop, being assisted with another bishop, from giving of orders by the space of a year. 533 For a summary of the present position in seeking the court’s advice on litigation see, Vicki J Vann ‘The High Court Gives Some Advice to Trustees: The Macedonian Church case’ (2009) 32 Australian Bar Review 123. See also: Re Free Serbian Orthodox Church Diocese for Australia Property Trust [2012] NSWSC 649.
198 For the Anglican Church in each diocese in New South Wales, the Anglican Church Trust Property Act 1917 (NSW) creates a corporate trustee.534 Schools, hospitals, retirement villages and other institutions usually form themselves into a body corporate under the Anglican Church (Bodies Corporate) Act 1938 (NSW) and then hold their property in the corporate name.
The accepted elements of a trust are a trustee, trust property, beneficiaries or a charitable purpose and an equitable obligation annexed to the property. There is usually little difficulty in identifying the trustee and the trust property. In respect to the Anglican Church in New South Wales, the charitable purpose and the equitable obligation, can be found in the definition of ‘church trust property’ in s 5 of the Anglican Church Trust Property Act 1917 (NSW):
“Church trust property” includes all or any part of any real and personal property which may for the time being be subject to any trust whether by dedication, consecration, trust instrument, or otherwise, for the use, benefit, or purposes of the Anglican Church in any diocese, and each such diocese is referred to as the diocese for which the church trust property in question is held.
This definition suggests the charitable purpose as ‘the use, benefit, or purposes of the Anglican Church’ in the particular diocese of the Anglican Church in New South Wales. Wylde v Attorney-General (NSW) ex re Ashleford 535 (considered chapter 6), has a full discussion of the trusts on which ‘Anglican’ property is held in New South Wales, at least up to 1948. Wylde, interpreted the Church of England trusts governing the use of church buildings, strictly in accordance with the requirements of the 1662 Book of Common Prayer. But, since 1961, the Anglican Church in Australia has been an independent Church, separate from the Church of England.
534 Anglican Church Trust Property Act 1917 (NSW) s 5. While a few parishes, at least in the Diocese of Sydney, continue to elect individuals as trustees to hold the parish property titles, most parishes vest the parish lands in the name of the diocesan property trust. 535 (1948) 78 CLR 224.
199 Subject to some constitutional restrictions, the Australian Church has plenary power to authorise a significantly wider variety of liturgical use to occur in Anglican churches, without violation of trusts.
7.2.4 Power to vary trusts The Church of England Trust Property Bill 1917536 repealed and consolidated at least eight previous Acts and retained a number of general powers already in existence conferred by previous Acts. In introducing the Bill, the mover said:
Those powers which Parliament has given to the Church of England to deal with its trust property are similar to those given to the Presbyterian Church and the Methodist Church, under special Acts which they have. Those powers do away with the necessity for an application for a Private Act of Parliament whenever it is desired to sell properties.537
In addition to the creation of a body corporate as trustee of church property, the synod of a diocese was given power to sell, mortgage or lease church trust property. By far the most useful and far reaching power is the power, in s 32, to vary to trusts on which specified property is held. So for example, the synod, could by ordinance, declare that property held on trust for parish A, is now held on trust for other Anglican purposes in the diocese.538 This
536 Bill introduced into the Legislative Council by the Hon J Garland on 25 October 1917 and the Legislative Assembly by the Attorney-General (D R Hall) on 26 October 1917 and in both cases passed the second reading. The Diocese of Newcastle, at its request, was omitted from the provisions of the Bill but could accede to the provisions upon passing of an Ordinance by their Synod. 537 New South Wales Parliamentary Proceedings 1917, 2069. 538 Section 32: In each case where by reason of circumstances subsequent to the creation of the trusts, including trusts declared under this section, to which any church trust property is for the time being subject, it has, in the opinion of the synod of the diocese for which such property is held, become impossible or inexpedient to carry out or observe such trusts, it shall be lawful for the synod of such diocese by ordinance to declare such their opinion and, by the same or any subsequent ordinance, to declare other trusts for or for the use benefit or purposes of the Church of England within the said diocese instead of such first mentioned trusts and such first mentioned trusts shall thereupon by force of the said ordinance cease and determine and such property shall thereupon be held upon such other trusts accordingly: Provided that such property shall be dealt with and applied for the benefit of the Church of England in the parish or parishes (if any) for the benefit of which such property was immediately before such ordinance held in trust and for the same purposes as nearly as may be as the purposes for which such property was immediately before such ordinance held unless the synod of such diocese
200 power in s 32 virtually vests in the synod the equitable cy-près function found in the equity side of the Supreme Court of New South Wales.
The ambit of s 32 was tested in Attorney General and others v Church of England Property Trust Diocese of Sydney (1933) 34 SR
(NSW). In that case, the standing committee of the synod, acting under delegated power from the synod, passed an ordinance varying the trusts of certain income from rents. The parish concerned claimed that the standing committee had exceeded its powers under s 32 by passing the ordinance. Long Innes J began his judgment by referring to the 1917 Act, saying:
This Act is of outstanding importance in this case but, for the present purposes it is sufficient to say that it conferred upon the Synod of such diocese such wide powers, not only in regard to the management of church trust property (under ss 24 to 31 inclusive) but also (by s 32) in regard to the variation in certain circumstances of the trusts affecting such property as to make Synod master of the situation to such an extent as to render it improbable that this Court will continue to exercise its concurrent jurisdiction of administering charitable trusts affecting such property, cy-près, since every such exercise by this Court may be immediately overridden or set aside by the statutory authority. It seems to me clear that the Legislature intended by that Act to constitute Synod as the supreme authority in that respect and to thereby avoid the expenditure of these charitable trust funds in payment of the costs which would otherwise be necessarily occasioned by resort to the Court.539
This point was trenchantly stated again at 51:
shall by ordinance declare that by reason of circumstances, subsequent to the creation of the first mentioned trusts, it is, in the opinion of the synod, impossible or inexpedient to deal with or apply such property or some part thereof for the use or benefit of such parish or parishes or for the same or the like purposes, in which case such property or such part thereof may be dealt with and applied for the use and benefit of the Church of England for such other purposes and in such other parish or parishes in the said diocese or otherwise as shall be declared by ordinance of the synod of the said diocese. 539 A-G (NSW) v Church of England Property Trust, Diocese of Sydney (1933) 34 SR (NSW), 48.
201 It should have been obvious to the relators and their advisers that, notwithstanding any decree which this Court might make, Synod was master of the situation and that any proceedings in this Court would be futile; unfortunately they appear to have lost sight of this fact.
Thus while the court has inherent jurisdiction to entertain claims for relief for breaches of trusts created for charitable purposes, the judge recognised that any declaration by him of existing trusts and rights ‘might be immediately made of practically no avail by an ordinance of Synod’.540 The judge was highly critical of the court time taken by the relators.541
The Anglican Church of Australia Trust Property Act 1917 has been singularly successful in creating a framework with appropriate legal powers for the Anglican Church in New South Wales to manage its property. Any doubt about the reach of the trust variation power was laid to rest in 1933 and there is no reported case since then concerning any provision of the 1917 Act. In a 2008 Victorian case, the court was approached for orders to save a 1938 gift to the Anglican Church in Gippsland. A case note observes that s 32 of the Anglican Church Property Trust Act 1917 (NSW) ‘provides for an internal scheme for the Church to alter trusts for the benefit of a diocese’ so the Victorian problem could not occur with the Anglican Church in New South Wales.542
540 Ibid 52. 541 Ibid 51 ‘The information and suit has, consequently, been instituted and as a result the time of this Court has been unnecessarily occupied for the greater part of eleven days and heavy costs unnecessarily incurred on both sides’ and at 59 ‘had the case been properly presented, as it might have been, on an agreed statement of facts, and the argument confined within proper limits, the hearing would not, I think, have occupied more than three days’ and ibid 59 ‘had the case been properly presented, as it might have been, on an agreed statement of facts, and the argument confined within proper limits, the hearing would not, I think, have occupied more than three days’. 542 Anglican Trusts Corporation (Gippsland) v A-G(Vic) [2008] VSC 352, noted by the editor, Justice Peter Young, (2010) 84 Australian Law Journal 91.
202 7.3 Anglican procedures to resolve internal disputes The Anglican Church of Australia is an Australia wide unincorporated association. By consensus and agreement, the members, by their elected representatives, have adopted a constitution,543 which, among other things, creates an Appellate Tribunal.544 The Tribunal provides an internal mechanism for discipline of members and the resolution of internal disputes. The constitution operates across all dioceses of the Anglican Church in Australia including the dioceses of the Anglican Church in New South Wales. The Tribunal has seven elected members, three must be diocesan bishops and four must be lawyers and not clergy.545 Annexure 10.2 lists the opinions delivered by the Tribunal and Annexure 10.3 lists membership since 1961.
As one might expect the Appellate Tribunal acts as a final ‘court of appeal’ from diocesan tribunals, provincial tribunals and special tribunals (which hear charges against bishops) on matters of faith, ritual, ceremonial or discipline.546 Appeals are by way of a rehearing. Since its establishment, the Appellate Tribunal has only considered one appeal under this head of power and that concerned an unsuccessful appeal by a Melbourne clergyman from a Diocesan Tribunal finding which resulted in the withdrawal of his licence.547
543 See chapter 3, section 3.8. 544 Section 53. 545 Section 57: A bishop and a layperson are elected by the House of Bishops, a bishop and two laypersons are elected by the House of Clergy and a bishop and two laypersons are elected by the House of Laity. The laity must be lawyers of at least 10 years standing of a superior Court. 546 Sections 54(4) In matters involving any question of faith ritual ceremonial or discipline an appeal shall lie from the determination of a diocesan tribunal to the appellate tribunal, provided that in any province in which there is a provincial tribunal and appeal thereto is permitted by ordinance of the diocesan synod, an appeal may lie in the first instance to the provincial tribunal, and provided that in any such case an appeal shall lie from the determination of the provincial tribunal to the appellate tribunal. In other matters an appeal shall lie in such cases as may be permitted by ordinance of the diocesan synod from a determination of the diocesan tribunal to the provincial tribunal, if any, or to the appellate tribunal, and from a determination of the provincial tribunal to the appellate tribunal.; 55(4); 56(4); 57(2) 547 On 13 January 1968, the Melbourne Diocesan Tribunal under the Chairmanship of Mr. Justice Pepe, found the Rev N R Glover not guilty, of a breach of discipline but guilty of conduct disgraceful in a clergyman and productive or likely to be productive of scandal or civil report.
203 Discipline proceedings may be reviewed by the courts on natural justice issues.
In addition to the ‘appellate court' function, a matter can come before the Tribunal in other ways. Section 29548, section 30549 and section
548 Section 29 If not less than one-fourth of the members of general synod or one- third of the members of the house of bishops or of the house of clergy or of the house of laity petition the President that a canon duly made is in whole or in part inconsistent with any part or parts of the Fundamental Declarations or Ruling Principles of the Constitution or that a canon deals with or concerns ritual ceremonial or discipline of this Church and has not been passed in accordance with section 28 (1) hereof, the President shall refer the question to the appellate tribunal and in the meantime the canon shall not come into force. If the tribunal finds no inconsistency or no breach of section 28 (1) as the case may be, the President shall thereupon declare the canon to be in force. If the tribunal finds inconsistency or breach of section 28 (1), it shall report to general synod the nature of the inconsistency or breach giving its reasons and may, if it thinks fit, indicate what amendments, if any, would remove the inconsistency or avoid the breach, and unless and until such amendments are made by general synod the canon shall not come into force. 549 Section 30 Subject to the preceding section and unless the canon itself otherwise provides, a canon duly passed by general synod shall come into force on and from a date appointed by the President, being not later than one calendar month from the date upon which the canon was passed. The canon as on and from the appointed date shall apply to every diocese of this Church and any ordinance of any diocesan synod inconsistent with the canon shall to the extent of the inconsistency have no effect. Provided that: (a) Any canon affecting the ritual, ceremonial or discipline of this Church shall be deemed to affect the order and good government of the Church within a diocese, and shall not come into force in any diocese unless and until the diocese by ordinance adopts the said canon. (b) If general synod declares that the provisions of any other canon affect the order and good government of the Church within, or the church trust property of a diocese, such canon shall not come into force in any diocese unless and until the diocese by ordinance adopts the said canon. (c) If general synod should not so declare the synod of a diocese or the diocesan council may declare its opinion that the provisions of the said canon affect the order and good government of the church within or the church trust property of such diocese and notify the President within one month thereafter and then the following provisions shall apply: (i) If the said diocesan synod or council declare its opinion as aforesaid within a period of two years from the date of the passing of the said canon and the standing committee advises the President that it agrees with the said opinion the canon shall not and shall be deemed not to have come into force in such diocese unless and until it is adopted by ordinance of the diocesan synod; (ii) If the said diocesan synod or council declare its opinion at any time after the expiration of the said period of two years and the standing committee advises the President that it agrees with the said opinion the said canon shall cease to apply to the said diocese as from the date of the said declaration and shall not after such date again come into force in such diocese unless and until it is adopted by ordinance of the diocesan synod; (iii) If the standing committee in either case should not so advise the President he shall refer the question raised by the said opinion to the appellate tribunal for its determination and unless the appellate tribunal determines the question in the negative the canon shall be deemed not to have come into force in the said
204 31550 allow questions relating to the constitutional validity of canons to be referred to the Synod. In the fifty years of operation of the constitution there have been very few references under sections 29, 30 or 31.
It is the section 63(1)551 jurisdiction which allows any question arising under the constitution to be referred to the Appellate Tribunal for ‘determination or for an opinion’552 which has caused controversy. In recent years, it has been a contested question as to how binding these opinions are on the Anglican Church of Australia. The views of two members of the Tribunal illustrate the divide.
On one side, Archbishop Keith Rayner, referring to the opinion on the administration of the Lord’s Supper by persons other than priests, said:
It is too much to expect that their opinion will be universally approved, particularly in view of the narrowness of the majority. I have no doubt that theologians and lawyers alike will give careful scrutiny to the reasons given by members of the tribunal. I make two comments by way of clarification. The first is that what the Tribunal has handed down is an opinion, as distinct from a determination. A determination, as such would be made in response
diocese in the first case or to have force or effect in the said diocese after the date of the said declaration in the second case until the diocesan synod by ordinance adopts the said canon. (d) Any canon adopted as aforesaid by a diocesan synod may by ordinance be excluded at a subsequent date. 550 Section 31 If any question shall be raised as to the inconsistency of any canon rule resolution or statement of general synod with the Fundamental Declarations or the Ruling Principles the Primate may and at the written request of twenty-five members of general synod shall refer the question to the appellate tribunal hereinafter constituted whose opinion thereon shall be final. 551 Section 63(1) Wherever a question arises under this Constitution and in the manner provided and subject to the conditions imposed by this Constitution the question is referred for determination or for an opinion to the appellate tribunal the tribunal shall have jurisdiction to hear and determine the same or to give its opinion as the case may require provided that if provision is not otherwise made under this Constitution for the reference of such question to the tribunal the Primate may and shall at the request of general synod by resolution or at the written request of twenty-five members thereof or at the request by resolution of the provincial or diocesan synod affected refer the question to the tribunal which shall have jurisdiction as aforesaid. 552 A table of opinions delivered by the tribunal is in Appendix 4
205 to a reference concerning the validity of a piece of legislation, has a definitive effect, whereas an opinion is advisory.553
Justice Keith Mason,554 on the other hand, asserts that the 1961 constitution of the Anglican Church treats ‘determinations and opinions of the Appellate Tribunal as binding on members of the Church’.555 This is no mere difference of opinion between two distinguished members of the Appellate Tribunal. As Mason has observed, many in the Diocese of Sydney also view the section 63(1) opinions as advisory only:
Regrettably, some senior churchmen within this diocese do not appear to hold these views about the role of the Appellate Tribunal or the status of its decisions. Such attitudes encourage the notion that only a secular court can provide definitive rulings in doctrinal and constitutional disputes… Some proclaim the view that “opinions” of the Tribunal are no more than provisional, personal utterances that are open to be disregarded by any member of the Church who is not happy to abide with them. I have frequently heard this expressed in debate within the Synod of the Diocese of Sydney.556
Mason also asserts that the doctrine of precedent applies to the opinions of the Appellate Tribunal so that a dissenting minority opinion is abandoned in favour of the majority in a subsequent reference.557 The early history of Tribunal opinions indicates that the tribunal itself did not feel bound by earlier opinions.558
553 The Primate, Archbishop Keith Rayner, 1998 Presidential Address to the General Synod, 1998 Proceedings 15. 554 President, New South Wales Court of Appeal 1997-2008. 555 Keith Mason, ‘Believers in Court: Sydney Anglicans Going to Law’ Cable Lecture, 9 September 2005, 10. 556 Ibid 11. These ‘senior churchmen’ include Archbishop D W B Robinson, Dr L A Scandrett of Scandrett v Dowling fame, N M Cameron, former Advocate of the Diocese and the present author. 557 ‘A second problem lies in the fact that not all members of the Appellate Tribunal have regarded earlier Tribunal decisions as determinative…Once an appellate body has spoken on an issue (by majority, only if need be), its decision is final and binding for all purposes unless and until it decides as a body to change its collective mind. That, to my understanding, is an aspect of the rule of law, a principle that binds individual members of appellate courts as well as the general citizenry. It follows that, if the Appellate Tribunal (or the High Court for that matter) makes a ruling, then such ruling should also be applied faithfully by every member of the Tribunal or Court itself until the Tribunal or Court departs collectively from it.
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The division of opinion on the value of section 63(1) ‘advisory opinions’ reached a climax following the Tribunal’s September 2007 opinion on Women Bishops, at least from the viewpoint of the Standing Committee of the Sydney Synod. That Standing Committee, by resolution, expressed its view that it was unlikely to participate in any future references to the Appellate Tribunal.559
Naturally there may be disputes about the meaning or scope of an earlier ruling, but this qualification may be placed aside for present purposes. Without this attitude to the bindingness of earlier decisions, the voting in a later proceeding will be skewed if the individualist sticks to his or her own guns and decides not to address other critical issues presented for determination in that proceeding. During the 1980s, the Appellate Tribunal repeatedly determined that the ordination of women to the priesthood would not contravene either the Fundamental Declarations or the Ruling Principles set out in our Church Constitution. Sometimes these decisions were by majority, at times they were unanimous. When the issue came yet again to the Tribunal in the late 1980s, one member of the Tribunal refused to accept this consensus. Acting out of conscience, but still sitting and voting as a member of the Tribunal, the Archbishop of Sydney decided constitutional issues on the basis of holding that the Fundamental Declarations and/or Ruling Principles were contravened’. Ibid 11. 558 In 1974, an opinion was given on the question of divorced persons remarrying in church. Proceedings Fifth General Synod Anglican Church of Australia 1977 (General Synod Office, Sydney:1978) 96. In 1980, a differently constituted Appellate Tribunal specifically departed from its earlier opinion in the following terms: ‘Having reconsidered the matter the Tribunal resolved by majority (Mr Justice Cox dissenting) that its previous decision should be departed from...The Tribunal is now of the opinion that there is no constitutional bar to the marriage of divorced persons.’ Proceedings Sixth General Synod Anglican Church of Australia 1981 (General Synod Office, Sydney:1982) 159. 559 Standing Committee – (a) records its disappointment with the majority opinion of the Appellate Tribunal concerning the effect of the amendment to the definition of "Canonical Fitness" in section 74(1) of the 1961 Constitution, and (b) notes that – (i) the majority opinion refused to give effect to the representation of the Canon Law Commission of the General Synod, which drafted the amendment, to the Standing Committee of the General Synod, that the amendment made no change of substance to the definition that it replaced, which representation was relied upon by that Standing Committee, the General Synod and the Sydney Synod, and (ii) in consequence, in the future no reliance can be placed on representations by church bodies or officers as to the effect of amendments to the Constitution proposed by them, and (c) further notes that – (i) whilst it has not hitherto sought the opinion of the Appellate Tribunal on any matter a number of members of the Sydney Synod did and the Tribunal, acting contrary to the Constitution, refused to provide the opinion sought, and (ii) although the Standing Committee has provided the Tribunal with material, often prepared with the assistance of senior counsel, mostly that material has been ignored by the Tribunal, and
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This resolve of the Sydney Standing Committee meant that no diocesan submission was made to the Appellate Tribunal on the reference concerning lay and diaconal administration of the Holy Communion, an issue on which Sydney has expressed strong views over the last 40 years.560
Clearly, there is some utility in having a constitutional provision for a voluntary internal expert panel to provide an opinion on the meaning of a phrase in a constitution as against the expense of briefing senior counsel. However, recent questions posed to the Appellate Tribunal go much further than elucidating the meaning of words in a constitution. The questions posed require underlying assumptions in the constitution, whether political, legal or theological, to be taken into account in any answer. The mixed composition of the Tribunal requires lawyers to form views on theological issues and bishops to form views on legal issues. On most issues of high interest, the bishops, in their role as diocesan bishops, have already pronounced an answer. Most of the lawyers have held office as diocesan chancellors and may well have provided advice on the question to their bishop or synod. Appellate Tribunal records show that on several references, the issue of perceived bias has been raised but no member has ever stood aside.
(d) requests that the Diocesan Secretary inform the Primate, the General Secretary of the General Synod and each of the present members of the Appellate Tribunal that – (i) it is unlikely that this Standing Committee will hereafter participate in the consideration of questions on the Constitution put to the Tribunal, and (ii) in the event that the Standing Committee wants advice on the operation of the Constitution (whether already considered by the Tribunal or otherwise), the Standing Committee will have recourse to other sources for that advice.
560 For the ‘Sydney’ view on this topic see Peter Bolt, Mark Thompson and Robert Tong (eds), The Lord’s Supper in Human Hands (Australian Church Record, Camperdown, NSW: 2008) and by the same editors in 2010 The Lord’s Supper in Human Hands Epilogue.
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An essential element of the exercise of judicial power is making final and enforceable decisions. In a discipline case the Appellate Tribunal is limited to imposing one of the five sentences stated in section 60. Even then, the sentence is only a recommendation to the relevant bishop. While the bishop is bound to pronounce the sentence on the guilty person, the bishop is at complete liberty to impose a lesser penalty or none at all. Given this constitutional discretion in the bishop, a ‘discipline decision’ of the Tribunal is hardly final and binding. In respect of the section 63(1) ‘advisory’ opinions, there is no General Synod apparatus to enforce compliance with an answer without resort to the secular courts. And even then, there is the question of a jurisdictional entry point for a court which is the subject examined in this thesis.
Any debate on a ‘reference’ or ‘advisory opinion’ function given to a domestic tribunal must be set in the wider context of the place of advisory opinions in Australian jurisprudence.561 While there is much to commend the reference power concept,562 Felix Frankfurter, a distinguished judge of the United States Supreme Court, said:
561 Federal States such as Australia, Canada and the United States of America vest in their ultimate court jurisdiction to decide upon arguments between member states of the federation; arguments between member states and central government; and arguments on whether legislation is within the constitutional power of the member state or the central government. If the government of the day could obtain an opinion from the highest court in the land about whether or not proposed legislation would be constitutional, then, it is argued, there would be certainty on the validity of a law and a saving of public and private time, money and resources in pointless litigation. See generally, Stephen Crawshaw ‘The High Court of Australia and Advisory Opinions’ 51 Australian Law Journal 112; Felix Frankfurter, ‘A Note on Advisory Opinions’ (1924) 37 Harvard Law Review 1002 ; Note, ‘Advisory Opinions on the Constitutionality of Statutes’ 69 Harvard Law Review 1302; Gerald Rubin ‘The Nature Use and Effect of Reference Cases in Canadian Constitutional Law ’ 6 McGill Law Journal 168; Helen Irving, ‘Advisory Opinions, The Rule of Law, and The Separation of Powers’ (2004) 4 Macquarie Law Journal 105; Joseph G Starke, ‘The High Court and Advisory Opinions-a New Revised Proposal’ 56 Australian Law Journal 2; The most recent Constitutional Commission (1986-1988) recommended that an advisory jurisdiction not be conferred on the High Court. The Constitutional Commission took advice from the Australian Judicial System Advisory Committee, Parliament of Australia, Report of the Advisory Committee on the Australian Judicial System (1987) 65. 562 There are a number of arguments in favour of a reference power. An advisory opinion is cheaper than adversarial litigation. Secondly, a relatively quick
209
Perhaps the most costly price of advisory opinions is the weakening of legislative and popular responsibility. It is not merely the right of the legislature; it is its duty. Let legislatures inform themselves as best they can; but the burden of decision ought not be shifted to the Tribunal whose task is the most delicate in our whole scheme of government - the power of the judiciary to set limits to legislative activity within those ultimate but vague bounds which are undefined and a priori undefinable.563
Thus although within the Anglican Church of Australia there is high- level, constitutional provision for resolving ‘questions arising under the constitution’, but the utility of the provision has been politically compromised for the present, so as to be of little value. On the ‘appellate’ function, there has been only one appeal since the establishment of the Tribunal in 1961.
7.3 Conclusions Problems arising from the absence of the element of legal personality attaching to the unincorporated association known as the Anglican Church in New South Wales are largely overcome by the existence of statutory frameworks. First, the Anglican Church of Australia Trust Property Act 1917 (NSW) creates a corporation in each diocese to hold and deal with trust property. The problems gathered by Baxt under four questions,564 at least for questions one and two: the devise of property to unincorporated associations and the ability of associations to contract and hold property are resolved by the existence of the corporation. interpretation of the relevant documents can be obtained from the same persons who would hear any litigation. This accelerated judicial review could then clarify areas of doubtful proposed legislation at an early stage rather than waiting for an indeterminate period of time for a concrete case to arise and for the parties then to pursue the matter to the highest tribunal. Thirdly, the advisory opinion is an aid to the executive in framing legislation to be promoted. On the other side reasons against a reference power include: difficulties created for the tribunal due to the absence of concrete factual situations; the opinion is given without argument from parties with an interest in the subject matter; the distinction between political questions and proper legal questions is sometimes hard to discern; private rights are affected without private litigation so that when a citizen does bring a case for hearing, the tribunal may be embarrassed by an earlier opinion. 563 Felix Frankfurter, ‘A Note on Advisory Opinions’ (1924) 37 Harvard Law Review 1002, 1007. 564 Baxt, above n 100,305 and Sievers (2010), above n 103, 58.
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Secondly, the Anglican Church of Australia (Bodies Corporate) Act 1938 (NSW) empowers a New South Wales diocesan synod to create a body corporate for managing a church entity such as a school or retirement village. The diocesan property trust corporations and the ‘1938 Act’ corporations all have the legal personality elements of perpetual succession and the right to sue and be sued. Problems do remain where there are church activities, particularly at the parish level, where the parish remains as an unincorporated association. In theory, representative orders are available, but in practice these may be impossible to obtain.565
On the issue of justiciability for church internal disputes, the extended meaning of property to include office holders as in Bailey v The Uniting Church in Australia Property Trust (Qld)566 provides an additional entry point for judicial intervention in the affairs of an unincorporated association.
The leading Australian case on Anglican trusts, Wylde v Attorney- General (NSW) ex rel Ashleford,567 was decided a decade before Australian Anglicans severed the umbilical cord with the Church of England by the adoption their own constitution in 1961. That constitution gave the new, national synod power to make new rules governing the life of the church, subject to certain ‘Fundamental Declarations and Ruling Principles’. The requirements to conduct church services strictly in accordance with the Book of Common Prayer, as decreed in Wylde, have been substantially amended by the General Synod so that the trusts governing the use of Anglican Church property have been broadened. It is unlikely that a trust case based on similar claims would now succeed in the courts.
565 See brief discussion by Priestly JA in Scandrett v Dowling (1992) 27 NSWLR 483, 566. 566 (1984) 1 Qd R 42 567 (1948) 78 CLR 224.
211 Given the political stance of the Standing Committee of the Diocese of Sydney, the ability of the General Synod Appellate Tribunal to play a meaningful role in resolving internal disputes is compromised. Unless a party is prepared to pursue civil remedies, the internal dispute will fester until it plays out in the political arena of the association, perhaps with a change of office bearers, or just dies away with the passage of time.
The next chapter will draw together the several areas of law which have been surveyed and examined in addressing the thesis question, before indicating areas of further research and drawing a final conclusion.
212
8 THE END OF ALL THINGS
8.1 Introduction The thesis question finds its context in the legal dilemma of the unincorporated association succinctly stated by Fletcher in 1983: ‘Unlike the general body of laws it is a product of less than two centuries of judicial and legislative activity’.568 This statement echoed one made by Lloyd in 1938:
An examination of the law relating to voluntary associations reveals that there is no general body of doctrine relating to associations as such and that the rules to be applied are, in effect, simply applications of the ordinary law of contract, property, tort and so on.569
This failure to develop a satisfactory jurisprudence for unincorporated associations condemns such associations to the periphery of the legal landscape. A significant consequence is that when judicial aid is sought, access to the courts is only possible if certain factors exist. The leading Australian High Court case, Cameron v Hogan,570 sets the common law framework for any thinking about the problem. In short, unless there is some clear, positive indication that the members wish to relate to each other in a legal fashion, the rules of an unincorporated association will not be treated as an enforceable contract. It may be possible to circumvent this road block, if a member has a proprietary interest to protect, or there is a trust to maintain.
Recent years have seen an increasing volume of first instance cases which distinguish, or in the words of Palmer J in 2007, ‘just pay lip service’ to this High Court decision.571 Wootten J, who had little time for the strictures of Cameron v Hogan said that the real issue ‘is one of judicial policy --- whether or not the courts are to accept or reject
568 Fletcher, above n 31, 3. 569 Lloyd, above n 78, 215. 570 (1934) 51 CLR 358. 571 Coleman v Liberal Party of Australia (2007) 212 FLR 271, 272.
213 responsibility for performing ordinary judicial functions in relation to the important voluntary associations of a non-business character that are so important today’.572
Voluntary associations need access to the courts to provide an ultimate forum for the resolution of internal disputes. This is an expectation of contemporary society. The difficulty is that the common law presently offers no certainty. An aggrieved plaintiff member of an unincorporated association is left to rely on a series of first instance judgments which distinguish Cameron v Hogan.
This concluding chapter will: (a) summarise the research; (b) offer some practical answers to questions posed in chapter 1; (c) draw conclusions; and (d) indicate areas for legal change.
8.2 The thesis: a summary There are some foundational issues to address when considering unincorporated associations. How do members of a particular association relate to each other? Is there a contract binding them together or do they associate by mutual consent but without legal ties? Secondly, what standing does an unincorporated association have in the eyes of the law? Thirdly, the universal question faced by all unincorporated associations: the lacuna in the laws which apply to unincorporated associations. When an internal dispute between members cannot be resolved by internal association efforts and the aggrieved member looks to the court for a remedy, these three issues come into sharp focus.
572 McKinnion v Grogan [1974] 1 NSWLR 295, 298.
214 The member’s question is ‘What legal, as distinct from political, redress does an ordinary member have, when a rule is made or process followed which is contrary to the underlying doctrines and philosophies embodied in the constitutional documents of an association? When, if at all, will a court intervene to ensure doctrinal purity or to supervise the daily life of an unincorporated association?’
An examination of the law in this area raises two foundational questions: (a) Can the underlying jurisprudence be articulated in any modern and meaningful way? (b) Are there public policy considerations which dictate the present trajectory of the common law, and if so, do they remain relevant to the future development of the law of associations? The assessment of relevance may raise questions of reform.
My hypothesis in chapter 1 was that a court required the existence of a right of a proprietary nature, or the existence of a trust, or a clear intention that the members intend that the association rules be binding as a contract between members, before it will intervene in the affairs of an unincorporated association. Because of the author’s long personal involvement in the Anglican Church of New South Wales, this particular unincorporated association was chosen to test the hypothesis.
After examining the nature and characteristics of unincorporated associations and the historical reasons inhibiting the development of this area of law, chapter 2 then focused attention on Cameron v Hogan.573 That case, confirmed for Australia, the need for ‘the existence of some civil right of a proprietary nature proper to be protected’ before a court will lend its aid to resolving an internal dispute. Since 1934, and particularly in more recent years, there has
573 (1934) 51 CLR 358.
215 been a steady stream of cases which have ignored or distinguished Cameron v Hogan. Several have been strident in their criticism. If this trajectory of dissent could be consolidated at the appellate level, many of the legal difficulties confronting unincorporated associations may be addressed.
Commonly, members of unincorporated associations do not intend that the constitution of their association to be contractually and legally binding on members. This then removes a basis for a court to enforce the terms of the constitution as a contract. However, the notion of a statutory contract, as found in Anglo-Australian company law was examined in chapter 3, before then considering whether several Acts of the New South Wales Parliament specific to the Anglican Church contained a similar notion. If a statutory contract could be found, this would support an argument that church constitutions brought into being by enabling legislation were binding on the members of the association. No statutory contract could be found in the New South Wales Anglican constitutional framework.
As the chosen paradigm for thesis purposes is the Anglican Church in New South Wales, it was important, in chapter 4, to explore and document a number of key foundational ideas and legal cases concerning the Church of England out of which the Anglican Church in New South Wales was formed. While the fact of ‘establishment’ and key legal cases in the second half of the 19th century shaped the English Church, the effect on the Church in the colonies was not identical.
The middle years of the 19th century witnessed from the Colony of the Cape of Good Hope, a significant contribution to the jurisprudence applicable to unincorporated religious associations, and in particular those relating to the Church of England. Chapter 5 examined several South African appeals to the Privy Council and the principles enunciated in the opinions of the Board. Those opinions
216 played a foundational role in the judgments delivered in the Australian Church dispute cases considered in chapter 6. The central result of the South African cases meant that the colonial Church of England was legally in the same position as any other unincorporated association. No special privileges attached to the colonial Church of England because of its heritage.
Five leading Australian cases dealing with internal disputes in the life of Australian churches were examined in chapter 6 in the light of the material canvassed in the preceding chapters. A number of points emerged from this examination. Church constitutions may not be legally binding because of an absence of intention. The legislature may make some church constitutional provisions binding, for example in relation to property, while other provisions remain binding in conscience only. Internal processes to resolve internal disputes must afford parties due process and natural justice.
As a significant entry point for judicial involvement in an internal dispute is the existence of a proprietary interest, chapter 7 examined the term ‘property’ and its extended meaning to include the right to hold an office. Also, the special statutory provisions for the management of church property available to mainline church denominations in New South Wales cured the question of judicial invisibility, at least for the head office or institutional aspects of a denomination.
8.3 Some practical answers Early in chapter 1, seven ‘live examples’ were given. This section suggests answers for each ‘live example.’
Example One: Traditional/conservative members of church congregations commonly resist the use of dedicated single church buildings for broader community purposes. A parish council, with a progressive majority, and for the stated purpose of outreach into the
217 community, decides to use the church building for indoor basketball Monday to Thursday and a market Friday and Saturday. During those times the church specific furniture will be pushed up one end and covered with a tarpaulin. Would injunctive or declaratory relief be available to the conservatives? Answer: In theory, yes, but practical issues of representative orders and security for costs may be insurmountable obstacles. With the conservative members as plaintiffs who is the defendant? The possibilities are the progressive members of the parish council or the corporate trustee (being the registered proprietor of the church property). However, if the basis of the claim for relief is that the use is outside the trusts on which the property is held, the Attorney-General’s fiat is required to commence an action to protect a charitable trust. Another course open to trustees is to approach the court for judicial advice.574 The practical answer is to ensure the election of sufficient conservatively minded members to the parish council at the next annual general meeting of the parish.
Example Two: Is the office of priest or bishop a ‘right of property’? Is the right to a stipend or a right to reside in a particular residence attached to an office, ‘a right of property’? Would a court intervene to ensure that a duly elected or appointed female priest or bishop is able to take up office against the opposition of a minority. Or conversely, could traditionalists as in Scandrett v Dowling invoke the maintenance of traditional rules and invite the court to uphold a property right? Answer: This was never tested in Scandrett. The plaintiffs in Scandrett v Dowling sought to enforce the terms of the 1902 New South Wales Anglican Church Constitution but were unsuccessful because the New South Wales Court of Appeal held that it was the intention of the members, as set out in the 1902 Act that only ‘property’ decisions would be binding on members. If, as
574 S 63 Trustee Act 1925 (NSW). See, Macedonian Orthodox Community Church of St Petka Incorporated v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42; Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust [2012] NSWSC
218 discussed in Chapter 8 (8.3), an office is a right of property then it would have been possible to seek a declaratory order concerning the gender of office holders.
In 2010, the Bishop of the Diocese of the Murray, Ross Davies, was deposed from Holy Orders on the recommendation of the Special Tribunal.575 In the same year, the Bishop of Ballarat, Michael Hough resigned after complaints were made to the Episcopal Standards Commission.576 The constitutional mechanism for dealing with charges against diocesan bishops was adequate to deal with Davies.577 Neither, Davies, or Hough sought judicial review of their respective situations, so the proposition that an ‘office’ is a proprietary right, remains to be tested, at least in an Anglican context.
Example Three: What if a member of the clergy refused to submit to a diocesan tribunal in a matter relating to sexual abuse? Answer: Most Anglican dioceses in Australia have adopted a scheme of professional standards boards to deal with aberrant clergy behaviour rendering them unfit for holding office. Adverse findings usually result in clergy resigning from office rather than face disciplinary charges in the diocesan tribunal. Subject to common law rules about fair process, a tribunal could proceed in the absence of the accused.
575 By section 58 of the Anglican Church Constitution the Special Tribunal is constituted to deal with charges against diocesan bishops. Barney Swartz, ‘Disgrace Charge Brought Against Bishop’, The Age, 9 March 2010
219 Additionally, s 9 of the Anglican Church of Australia Constitution Act 1961 (NSW) provides:
For the purpose of securing the attendance of witnesses and the production of documents, and for the examination of witnesses on oath or otherwise, a tribunal mentioned in chapter nine of the Constitution shall be deemed to be an arbitrator as referred to in the Commercial Arbitration Act 1984 and shall have power to administer an oath to or take an affirmation from, a witness, and for the same purpose any party to a proceeding before such a tribunal or any person permitted by any such tribunal to submit any evidence to it shall be deemed to be a party to an arbitration agreement within the meaning of that Act.
Presumably, refusal to obey a subpoena to attend and give evidence would expose the unwilling witness to civil penalities.
An internal dispute involving the Newcastle Diocese Professional Standards Board found its way into the New South Wales court system in early 2011. The litigation provides an example of an entry point into the institutional life of the unincorporated association. In December 2010, three clergy were recommended for defrocking and one layperson to be prohibited from holding any lay position in the diocese. These disciplinary consequences resulted from findings of the diocesan profession standards board. Two of the clergy unsuccessfully applied to the Supreme Court for orders to prevent the diocesan Bishop acting on the recommendations.578 The essence of the Supreme Court action was for a review of the discipline board process. The claim was justiciable because of the rights attaching to the office of priest.579 The claim that the plaintiffs were employees was rejected taking into account the approach taken to this issue by the High Court in Ermogenous v Greek Orthodox Community of SA Inc.580
578 Sturt v Farran [2012] NSWSC 400 (Equity Division, Sackar J). Evidence was taken for three days commencing 23 May 2011 and four days in October 2011 with judgment delivered 27 April 2012. 579 Ibid [142]. 580 (2002) 209 CLR 95.
220
Example Four: Are laypersons within the jurisdictional reach of a church tribunal? Prima facie, the constitutional foundation for Anglican Church tribunals in all 23 dioceses of the Anglican Church of Australia contemplates only clergy as the subjects of jurisdiction. Answer: A synod of a diocese in New South Wales has power under the 1902 constitution to make provisions in ‘respect of all matters and things concerning the order and good government’ of the church in the diocese. Thus, a diocesan synod can legislate to prohibit a lay person from holding office such as churchwarden or parish councillor or from exercising a ministry such as a youth leader or Sunday school teacher on church property. It would be open to a court to enforce such a prohibition based on an ‘office’ being a right of property. In 2011, a layperson in the diocese of Sydney was prohibited from some parish activities. In announcing the prohibition, the layperson alleged that defamatory statements had been made by the minister and one of the lay congregation leaders. The aggrieved congregation member was unsuccessful in his Supreme Court claim for damages against the regional bishop, the minister of the parish and the lay leader.581
Example Five: The Anglican Church of Australia Constitutions Act 1902 (NSW) gives to each (New South Wales) synod, power to make provision for the removal from office of clergy who are incapable or inefficient. What if a clergyman refused to cease carrying out the functions of the office or refused to vacate a church residence? Answer: The holding of an office is a right of property and a court could give a declaration to clarify the rights of parties or an order for possession of church residential premises.
581 Haddon v Forsyth [2011] NSWSC 123; Leesha McKenny, ‘Churchgoer Loses Fight over Unwanted Sex Comments’, The Border Mail, 9 March 2011
221 Example Six: The Anglican Communion is a fellowship of national churches historically associated with the British Isles. This is a voluntary association of the various churches in nearly 40 countries are linked by common history, belief and church practice. There is no written constitution of the communion as such. Where a particular practice of the church in one country, is controversial is there any international reach via an Australian court to inhibit the controversial action? Answer: The unincorporated character of the Anglican Church in its various manifestations brings its own problems as we have seen in this thesis. Unless there is some property element of the foreign church present in Australia, private international law requirements and categories may provide little legal comfort to an Australian litigant. Given that over the last two decades across the Anglican Communion, there have been hotly contested questions of theology and practice, and no international Anglican tribunal to adjudicate, the representatives of theologically orthodox and conservative provinces of the Anglican Communion have absented themselves or resigned from established international Anglican forums and arranged their own gatherings.582
Example Seven: The 2005 Sydney Diocesan Synod passed the Affiliated Churches Ordinance 2005 empowering the Standing Committee of the Synod to extend to non- Anglican independent churches various benefits such as group insurance, superannuation and child protection training. Some opponents claim this ordinance to be ultra vires the good order and government powers of the synod. Answer: At heart the question is fundamentally a matter of statutory construction of the constitutional provisions. The synod of each Anglican diocese in New South Wales may make ordinances in respect of all things concerning the ‘order and good government’ of the Anglican Church of Australia and the regulation of its affairs within the
582 About a third of the bishops invited to the 2008 Lambeth Conference, went instead to the Global Anglican Future Conference (GAFCON) in Jerusalem. Fifteen of the 39 primates absented themselves from the 2011 Primates’ Meeting.
222 diocese. There is no reported case dealing directly with the grant of plenary power to a New South Wales Anglican synod by the Anglican Church of Australia Constitutions Act 1902 (NSW). Arguably, a parallel is the grant of plenary power to colonial Parliaments. The High Court in Union Steamship Co of Australia Pty Ltd v King said the words ‘for the peace, order and good government’ are not words of limitation. ‘It is now accepted beyond any question that colonial legislatures had power to make laws which operate extraterritorially’.583 However access to the court system may be denied unless the claim can be framed in such a way as to make the issue justiciable.
8.4 Areas for further research Associations Incorporation legislation is not used by the main church denominations in New South Wales because parliament has been willing to provide enabling legislation. A comparative examination of the use made by churches of Associations Incorporation legislation in the other Australian states, particularly South Australia may suggest to New South Wales churches a simple and inexpensive form of corporate structure to organise their institutional life at the parish level where many of the day-to-day problems arise.
A second area for further research is judicial policy-making. The challenge thrown out by Wootten J in Grogan’s case should be taken up. If judges are to take the lead in the development of the common law, how does this happen? Two recent volumes of the University of Queensland Law Journal 584 analyse judicial policy-making and judicial activism.585 Is there another reason to explain the underdevelopment of the common law in this area? Forbes suggests
583 (1988) 82 ALR 43, 48. 584 Vol 25 (2), 2006; Vol 26 (2), 2007. 585 See, eg, Michael Coper, 'Concern about Judicial Method. (Australia)' [2006] 30(2) Melbourne University Law Review 554 and Michael Kirby, 'Judicial Activism: Power without Responsibility? No, Appropriate Activism Conforming to Duty' [2006] 30.2 Melbourne University Law Review 567.
223 that there is ‘less pressure to revise Cameron v Hogan’ 586 because statutory rights of appeal are given to decisions of organisations registered under industrial laws.
A third area for research is a comparison between the Anglican Church of Australia and the Presbyterian Church of Australia on resort to the courts to resolve internal disputes. Alan Black provides five instances of legal action linked to the Presbyterian reaction to the Uniting Church negotiations and agreements.587
A fourth area is a critical examination of how the new legal requirements placed on not-for-profit corporations will impact on entities such as schools retirement villages and hospitals which already provide returns, fiscal or otherwise, to regulatory bodies. Part of the new arrangement is registration of all not-for-profit organisations, whether incorporated or not. This will provide a common basis for recognition by the courts of the entity. As that registration is mainly for fiscal and regulation purposes, it remains to be seen if this overcomes the ‘standing’ issue so that an unincorporated association can proceed ‘on the merits’ when seeking a remedy for an internal dispute.
8.5 Conclusions The points of judicial entry into the life of an unincorporated association are circumscribed by the common law. Initially, even the lawfulness of associations was a question of national security. This objection evaporated with the passage of time. However, the underlying jurisprudential problem remains: the lack of legal personality. Individual persons and corporations have judicial recognition as entities, unincorporated associations do not. The
586 John R S Forbes, Justice in Tribunals 3rd (Federation Press, Sydney 3rd ed, 2010) 65. 587 Alan W Black, ‘Some Aspects of Religion and Law: The Case of Church Union in Australia’ (1986) 16 Religion 225.
224 common law developed limited points of entry into the life of unincorporated associations to allow judicial resolution of internal disputes. The legal problems faced by unincorporated associations and articulated by the four questions posed by Baxt,588 can only find their solution in new legislative provisions or by judicial activism. Parliament and the courts form the next two sections.
8.5.1 Parliament While unincorporated associations are the legislative concern of state legislatures, a possible avenue for Commonwealth legislation to deal in a direct and comprehensive way with the legal invisibility of unincorporated associations has been passed up. Federal Government policy on ‘not-for-profit’ organisations, informed by the Research Report of the Productivity Commission released on 11 February 2010, concluded inter alia, that ‘[o]n balance, there appears to be no clear case for a new minimal legal entity for unincorporated NFPs’.589 This recommendation appears to end any policy consideration of creating a legal entity for not-for-profit unincorporated associations. It is reasonable to conclude that the Federal parliament is unlikely, in the immediate future, to pass legislation to cure the problem. Such associations will continue to remain invisible to the judicial eye. The various government enquiries have concentrated attention to the definition of ‘charity’ and regulation for fiscal reasons, rather than recognition for jurisdictional purposes.
At the state level in New South Wales, Anglican church property, and the major institutions of Anglican dioceses in New South Wales are managed through entities that are incorporated or have corporate status under the Anglican Church of Australia (Bodies Corporate) Act 1938 (NSW) or the Anglican Church of Australia Church Trust
588 Baxt, above n 100. 589 Australian Government Productivity Commission Contribution of the Not-For- Profit Sector Research Report (Canberra: 11 February 2010) at chapter 6,128.
225 Property Act 1917 (NSW). Similar legislative arrangements exist for other mainstream churches. Legal personality question is answered by these special forms incorporation.
Resort to the legislative arm of government for special legislation is another avenue for obtaining a statutory solution for what might be an intractable circumstance. In Merriman v Williams, considered in chapter 5, the Privy Council concluded their advice with these words:
Their Lordships wish to add their opinion that Courts of Law cannot settle, in any satisfactory way, questions affecting permanent endowments after a total change of circumstances has occurred, and their concurrence with the Chief Justice in thinking that the legislature alone can probably deal with such cases. 590
This suggestion of parliamentary intervention in this type of case became a necessity in 1904, following the House of Lords decision in The Free Church of Scotland v Overtoun.591 In Australia, the lead-up to the creation of the Uniting Church in Australia, 592 involved the New South Wales Parliament passing the Presbyterian Church of Australia Act 1971 (NSW) to enable that church to enter effective union negotiations with the other churches. Similar legislation was passed in the other states. A mechanism was provided for the division of property between those who voted to unite and those who voted against.593 New South Wales parliaments have been willing to assist church denominations with legislation dealing with property
590 (1882) 7 App. Cas 484, 511. 591 [1904] AC 515. The numerical size of the minority was not sufficient to make use of all the assets awarded to them. No agreement could be reached between the parties to more equitably share the assets. The United Kingdom Parliament was persuaded to set up a commission to review the decision and its consequences. As a result, the Churches (Scotland) Act 1905 was passed to resolve the impasse. 592 On 22 June 1977, many congregations of the Methodist Church of Australasia, the Presbyterian Church of Australia and the Congregational Union of Australia joined together under a Basis of Union to form the Uniting Church in Australia. 593 A number of legal challenges came out of the scheme for union and the work of the commission charged with the task to divide the church property. See, Alan W Black, ‘Some Aspects of Religion and Law: The Case of Church Union in Australia’ (1986) 16 Religion 225.
226 and with governance. This willingness to assist with special legislation should be vigorously explored as a solution to two unresolved areas of Anglican life.
The first unresolved area is the legal character of the rules of the Anglican Church in New South Wales. The second is the contested nature of Appellate Tribunal opinions. While the majority in Scandrett v Dowling594 restated the traditional view that the rules of the Anglican Church in New South Wales were in the nature of a consensual compact,595 Mahoney JA, in the minority, took the opposite view. ‘Legally binding rights and obligations’596 could be found in the rules of the Anglican Church. This argument about the legal character of the rules and the prior question of the intention of the rule makers could be laid to rest by special legislation. The present New South Wales position is that only decisions relating to property are legally binding.597 This could be extended, by legislation, to decisions which relate to church rules arising out of the Book of Common Prayer and the Thirty-nine Articles of Religion which are the ‘authorised standard of worship and doctrine’ in the Anglican Church of Australia.598 Thus areas of common church life and belief, presently based on consensual compact and binding in conscience only, would be converted to a legally binding contractual framework enforceable in the courts.
The second area for resolution by special legislation would be to make final and binding, the opinions of the Appellate Tribunal given
594 (1992) 27 NSWLR 483. 595 Ibid 512 A. 596 Ibid 505-506 597 S 4, Anglican Church of Australia Constitutions Act 1902 (NSW), see also chapter 3 of this thesis. 598 S 4 of the constitution in the schedule to the Anglican Church of Australia Constitution Act 1961 (NSW)
227 in relation to a question which arises under the constitution.599 If the rules of the church are made contractually binding, as suggested in the previous paragraph, it would complete the picture to make the opinions of the Appellate Tribunal final and binding. Questions about the contractually binding rules would be questions arising under the constitution. These questions would be determined by the Appellate Tribunal and resort to the courts precluded. Costs of proceedings would be an internal matter for the church and the parties rather than a charge on the public purse.
8.5.2 The Courts Given the recommendation from the Productivity Commission not to urge the creation of a minimal legal entity for unincorporated not-for- profit associations, there remains the development of the common law as the solution to the problem. As we have seen in this thesis, unless there is a proprietary right to protect, a breach of trust to remedy, or the basis of association is contractual, the courts will not intervene in the life of an unincorporated association to resolve internal disputes.
While a handful of first instance judgments have distinguished in some way Cameron v Hogan,600 there is no modern, that is post 1934, judicial restatement of the basis on which judicial intervention into the affairs of unincorporated associations could occur. Judges at first instance can only ‘cry in the wilderness’.601 However an intermediate appellate court could provide a coherent judicial restatement of the basis on which judicial intervention into the affairs of unincorporated associations could occur. But, given the nature of
599 Section 63(1) Wherever a question arises under this Constitution and in the manner provided and subject to the conditions imposed by this Constitution the question is referred for determination or for an opinion to the appellate tribunal the tribunal shall have jurisdiction to hear and determine the same or to give its opinion as the case may require provided that if provision is not otherwise made under this Constitution for the reference of such question to the tribunal the Primate may and shall at the request of general synod by resolution or at the written request of twenty-five members thereof or at the request by resolution of the provincial or diocesan synod affected refer the question to the tribunal which shall have jurisdiction as aforesaid. 600 (1934) 51 CLR 358. 601 See Palmer J in Coleman v Liberal Party of Australia (2007) 212 FLR, 271, 278.
228 unincorporated associations, they may not have the deep pockets necessary to test Cameron v Hogan at the appellate level. Scandrett v Dowling602 came before an appellate court because certain questions were referred to the New South Wales Court of Appeal for determination, before the trial judge could proceed to the hearing on whether the interlocutory injunction should be dissolved.
If there is to be no legislative cure for legal invisibility, there is, on the other hand, strong obiter urging the involvement of the courts in the life of unincorporated associations. In McKinnon v Grogan603 we saw that Wootten J was highly critical of judicial inaction in addressing everyday needs of members of associations. If judicial initiative
[I]s not forthcoming, a vast and growing sector of the lives of people in the affluent society will be a legal no man's land, in which disputes are settled not in accordance with justice and the fulfilment of deliberately undertaken obligations, but by deceit, craftiness, arrogant disregard of rights and other means which poison the institutions in which they exist, and destroy trust between members.604
Mahoney JA, echoed these sentiments when observing that the rules of the church were important to members and were more than just matters of common interest:
The doctrines, rituals and practices are matters by which its members order their lives and to which they, as required, may dedicate themselves and their property. They are not the result merely of the members of the Church having decided to combine for the effecting and observance of them: they derive from centuries old organisations to which the members have come by adherence. These are matters which, I think, the members would see as capable of and, indeed, as warranting enforcement in formal court procedures in appropriate respects and in appropriate circumstances...605
602 (1992) 27 NSWLR 483. 603 [1974] 1 NSWLR 295. 604 Ibid 298 (emphasis added). 605 Scandrett v Dowling (1992) 27 NSWLR 483, 505.
229 The Australian common law framework was set in the 1934 High Court decision of Cameron v Hogan.606 Baxt, nearly fifty years later, in 1973, summarised the judicial approach to unincorporated associations as an ‘inability or unwillingness of the courts to deal with a legal concept which is clearly out of date and which needs careful consideration by the legislature’.607 Lloyd’s obituary in 1992 asserted that this area of law remained ‘even today an underdeveloped subject’.608 And, there is the 2007 plaintive cry of Palmer J that it is:
[I]ncreasingly difficult to reconcile (Cameron v Hogan) with the needs of contemporary society. Judges have struggled to justify granting declaratory relief to resolve disputes within voluntary organisations which affect reputation, standing, occupation and the use of amenities, though not directly involving proprietary rights, while still paying lip service to Cameron v Hogan. Some judges have simply ignored the case. 609
If parliament is unwilling to develop this area of law, it is up to the courts to fill the gap. Of course it depends on a suitable case, a willing litigant and a ‘courageous’ judge to pursue the trajectory of judicial decisions which dissent from, or distinguish, Cameron v Hogan. And it needs more than a judge at first instant. An intermediate court of appeal could restate the Cameron v Hogan precedent in a way which took account of the needs and expectations of contemporary society as argued by Wootten J and Palmer J.610 The author, as a practitioner in the common law tradition, has a preference for this challenge to be taken up by judges rather than parliamentarians. Is there an Australian ‘Lord Denning’ who will chart the course of reform?
606 (1934) 51 CLR 348. 607 Baxt, above n 100, 305. 608 Michael Freeman, ‘Obituary: Lord Lloyd of Hampstead’, The Independent, (London), 8 January 1993. Freeman is Professor of English Law, University College London. 609 Coleman v Liberal Party of Australia (2007) 212 FLR 271, 278. 610 The extent to which intermediate courts of appeal can ‘develop’ the law is considered by Keith Mason ‘The distinctiveness and independence of intermediate courts of appeal’ (2012) 86 Australian Law Journal 308.
230
231
9 CHRONOLOGY
DATES and EVENTS Sovereigns and Archbishops of Canterbury together with events and cases referred to or in the timeframe of this thesis
People Date Event
Thomas Secker, Abp of 1758 Canterbury
George lll 1760 (Oct)
Frederick Cornwallis, Abp of 1768 C’bury
1770 (April) Captain James Cook RN discovers east coast of Australia
1775-1783 American War of Independence
John Moore, Abp of 1783 Canterbury
1784 (Nov) Dr Seabury consecrated by three Scotch bishops for America
1784 Act to empower Bp of London to ordain deacons or priests who were not subjects of the King’s Dominions.
1786 Act to give authority to Archbishops of Canterbury & York to consecrate bishops who were subjects of foreign states without requiring oaths of allegiance or supremacy.
1787 (Feb) White & Provost consecrated for Pennsylvania and
232 People Date Event
New York, respectively at Lambeth by Canterbury & York and two others
1787 (Aug) Charles Inglis consecrated at Lambeth for Nova Scotia, first bishop in British territories overseas
1788 (Jan) First Fleet arrives at Botany Bay
1789-1799 French Revolution
1790 (Sep) Madison consecrated at Lambeth for Virginia. All future American bishops consecrated in America
1795 British capture Cape Town
Charles Manners-Sutton, 1805 Abp of Canterbury
1815 Congress of Vienna: Cape Colony to Britain
George lV 1820 (Jan)
William Howley, Abp of 1828 Canterbury
William lV 1830 (Jun)
1835 Dr Warren’s case
1836 (Feb) W G Broughton consecrated at Lambeth for Australia
Queen Victoria 1837
233 People Date Event
1847 (Jun) Gray, Short, Perry and Tyrell consecrated at Lambeth for Cape Town, Adelaide, Melbourne and Newcastle respectively
John Bird Sumner, Abp of 1848 Canterbury
1850 Australian Colonies Government Act: expanded NSW Legislative Council, and created South Australia, Tasmania and Victoria
1850 Gorham v Bishop of Exeter (meaning of baptism)
1853 (Nov) Colenso consecrated for Natal
1855 (July) Responsible government in NSW
1855 Ex parte Ryan (1855) 2 Legge 876 (C of E not established in NSW)
1857 R v Eton College
1861-1865 American Civil War
Charles T Longley, Abp of 1863 Canterbury
1863 (9 Feb) Privy Council: Long v Bishop of Cape Town
1863 (24 Jun) Judgment: Long v Bishop of Cape Town (Letter Patent no effective)
234 People Date Event
1863 (Apr) Colenso deposed by Gray
1864 (Apr) Colonial Bishoprics Fund suspends Colenso’s stipend
1864 (Dec) Privy Council: Re the Bishop of Natal
1865 (Mar) Judgment: Re the Bishop of Natal (Cape Town could not sack Natal)
1866 (Jun) Hearing: Colenso v Gladstone (Colonial bishoprics Fund)
1866 (Nov) Judgment : for Colenso in Colenso v Gladstone (restoring his stipend)
1867 (Sep) First Lambeth Conference.
1867 Forbes v Eden
Archibald Campbell Tait, 1868 Abp of C’bury
1869 Privy Council: Bishop Cape Town v Bishop Natal
1870 Constitution adopted by Church of the Province of South Africa
1872 Responsible government Cape Town colony
1882 Merriman v Williams
Edward White Benson, Abp 1883 of Canterbury
235 People Date Event
Frederick Temple, Abp of 1896 Canterbury
Edward Vll 1901 (Jan) Commonwealth of Australia
Randall Thomas Davidson, 1903 Abp of Canterbury
1914-1918 World War l
1909 MacQueen v Frackleton
Cosmo Gordon Lang, Abp of 1928 Canterbury
1934 Cameron v Hogan
1939-1945 World War ll
William Temple, Abp of 1942 Canterbury
Geoffrey Francis Fisher, Abp 1945 of Canterbury
1949 Wylde v A-G NSW ‘Red Book Case’
Arthur Michael Ramsey, Abp 1961 of Canterbury
1961 Constitution adopted Church of England in Australia
George Carey, Abp of C’bry 1991
1992 (Jan) Scandrett v Dowling ‘Women Priests Case’
1998 Lambeth Conference resolution 1.10 ‘Human sexuality’
Rowan Williams, Abp of 2003 Canterbury
236 People Date Event
2002 Ermogenous v Greek Orthodox Community of South Australia
2008 GAFCON, Jerusalem Lambeth Conference
2009 Plenty v Seventh Day Adventist Church of Port Pirie
237 10 ANNEXURES
10.1 Archbishop Sumner’s Bill in the House of Lords 1853 Whereas by reason of the Laws in force for restraining and regulating Assemblies of the Clergy of the United Church of England and Ireland, and other Laws and Usages having special reference to the Authority and Privileges of the said Church as established in England and Ireland respectively, doubts are entertained whether the members of such Church in Colonial Dioceses are not disabled from assembling for the management of their Ecclesiastical affairs; and whereas it is expedient that the Bishop of any Diocese of the United Church of England and Ireland within Her Majesty's Foreign nor Colonial Possessions, together with the Clergy and Laity of the same, and that the Metropolitan of any Province now lawfully constituted or hereafter to be constituted within the same, with the Bishops, Clergy and Laity of the same, should be permitted, under certain restrictions, to make Regulations for the management of their Ecclesiastical affairs: Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled, and by the authority of the same, as follows:-
I. No Law, Usage, Rule or other Authority in force in the United Kingdom, or in England and Ireland, or either of the, shall be construed or shall extend to prevent the Bishop of any Diocese or the Metropolitan of any Province in any of the Foreign or Colonial Possessions of Her Majesty's and his Clergy, and the Lay Persons or such Diocese, or the Bishops, Clergy, and Lay Persons of such Province respectively being in communion with the United Church of England and Ireland, from meeting together from time to time to make or from making at such meeting by common consent, or by a majority of voices of the said Clergy and Laity severally and respectively, with the assent, in the case of any Diocese of the said Bishop, any such Regulations as circumstances shall in their judgment render necessary for the management of the affairs of the said United Church within such Diocese, or for the holding of meetings for the said purpose thereafter, for one such Diocese only, or for the Dioceses which may constitute the Province of any such Metropolitan now constituted or hereafter to be constituted in such Possessions: Provided always, that no such meeting shall be lawful unless in accordance with and subject to the provisions and restrictions hereinafter contain; (that is to say:)
II. Provided, that where any such assembly shall be holden for any Diocese the Bishop, or in his absence a commissary appointed for this purpose by the Bishop by writing under his hand and seal, shall preside in such assembly; and upon all questions arising in such assembly the votes of the Clergy and the Lay Representatives shall be separately taken; and no Act or Resolution of such assembly shall be valid unless with the concurrence of the majority both of the Clergy and the Lay Representatives, or of such of them respectively as may be present and vote in such assembly; nor shall any Regulation made by such assembly be valid under this Act without the consent of the Bishop, whether he shall or shall not be present in the assembly at the making thereof.
III. And provided, that no Regulation, Act or Resolution of any such assembly shall be binding on any person or persons, other than the Bishop of the Diocese and his successors, and the Clergy and Lay Members of the United Church of England and Ireland residing within such Diocese; nor upon such Bishop, Clergy and Lay Members, except so far as such Regulation, Act or Resolution may concern the position, rights, duties and liabilities of any Minister or Member of the said United
238 Church, in regard of his Ministry or Membership; and it shall not be lawful, by any such Regulation, Act or Resolution, of any assembly, to impose any temporal or pecuniary penalty or disability other than such as may be consequent upon suspension from or deprivation of an Ecclesiastical Office or Benefice, or to deprive any person of any civil right to which he is by law entitled.
IV. And provided, that no Regulations of any such assembly shall have legal force or validity as against the Acts or Ordinances for the time being in force of the local Legislature of the Foreign or Colonial Possession in which such assembly shall be holden.
V. And provided, that no such Regulation shall alter the standards of faith and doctrine, or alter or be at variance with the Book of Common Prayer or the Thirty nine Articles of Religion, or alter the Oaths, Declarations and Subscriptions by Law required to be taken, made and subscribed by persons to be consecrated, ordained, collated, instituted or licensed within the said Church.
VI. And provided, that no such Regulation which shall affect any right of appeal to Her Majesty in Council, or to the Archbishop of Canterbury, or the Subordination of the said Bishops, Clergy and Laity to the See of Canterbury, shall be valid unless the consent of the Archbishop of the said See thereto be previously or thereafter signified by him under his hand and seal, nor unless such Regulation be confirmed by an Order of Her Majesty in Council.
VII. And provided, that where the Bishop of any Diocese in any of the Foreign or Colonial Possessions of Her Majesty shall see fit to convene any such assembly as aforesaid, such Bishop shall, at such time as to him may seem meet, previous to the first such assembly in his Diocese, by such notice as to him may seem convenient, summon thereto all the Clergy being Incumbents or licensed by the Bishop within such Diocese, and the Lay Representatives of the Diocese elected as hereinafter provided, and for electing such Representatives shall require each Clergyman instituted or licensed to a separate Cure of Souls to summon a meeting of the Laymen, Members of the Church of the age of twenty one years or upwards, resident within his Parish or District, at such (within limits which may be prescribed by such Bishop) and at such place within the Parish or District as to such Clergymen may seem convenient, and every such Lay Member as aforesaid shall be entitled to vote at such election.
VIII. And provided, that the said meeting, so soon as five persons at the least are assembled, shall proceed to elect a Chairman by a majority of those present, and the Clergyman may be present, and shall be qualified to act as such Chairman; and the Chairman shall make or cause to be made a list of those who shall then be present, and add thereto the names of any who shall subsequently attend before the proceedings are closed, and shall claim to vote thereat; and every such Lay Member present shall before taking part in or voting at such meeting sign the following declaration:-
"I, AB whose name is hereto subscribed, do declare that I am a Member of the United Church of England and Ireland, and belong to no other Religious Denomination."
IX. And provided, that every such meeting shall choose as a Representative or Representatives one person or (in any case where they think fit) two persons who shall have been a Communicant or Communicants in the said Church for at least the term of twelve months preceding the day of such meeting: Provided always, that if one hundred and fifty persons or more shall attend and vote at such meeting, it shall be lawful for such meeting, if they think fit, to elect one representative for each number of fifty persons so voting, provided that no Parish or District shall return more than four such Representatives.
239
X. And provided, that in case at the meeting the number of persons proposed for election exceed the number which the meeting is authorised to elect, the Chairman shall take in writing or in a poll book the votes of the qualified persons present and enumerated as aforesaid, and every such person may give one vote for each of such of the persons proposed, not exceeding the number which the meeting is authorised to elect, as he may think fit, and the Chairman shall declare the number of the votes given for each of the persons proposed; and the Chairman, if he be not a clerk, shall be entitled to vote at and may be elected by such meeting, and where the votes of two or more persons are equal, the Chairman, if not a clerk, may give a double vote for any such person, and if the Chairman be a clerk he may, notwithstanding where such votes are equal as aforesaid, give a casting vote for any such person.
XI. And provided, that the Chairman shall deliver or cause to be delivered to each person elected, a Certificate of his election, and shall sign the minutes of the meeting in token of the correctness and, unless he be the Clergyman of the Parish or District, shall deliver them to such Clergyman, together with all certificates, subscriptions, and lists which had been laid before the said meeting, and a certificate of the names, callings and addresses of the persons chosen, and the Clergyman shall cause all such documents to be delivered to the Bishop, to be by him laid before the assembly at the meeting thereof.
XII. And provided, that every assembly first convened in any Diocese under this Act shall at its first meeting or at some adjournment or adjournments thereof make such Regulations as shall seem fit for its own proceedings and government, and for the proceedings and government of future assemblies, without prejudice to the right of any future assembly to vary or repeal the same, and especially for the adjournment or prorogation of such assembly, and the calling of future assemblies, and election of the Lay Members thereof, but so that every Lay Member of such future assembly shall be a Communicant of the Church as aforesaid.
XIII. And provided, that the provisions of this Act for and in relation to the first convening and holding of an assembly in a Diocese, and for and in relation to and consequent on the election of the Lay Members thereof, shall, unless and until the first or any subsequent assembly shall otherwise provide, remain in force and be acted upon for and in relation to any subsequent assembly in such Diocese, and the elections of the Lay Members thereof; and in every case not provided for by this Act, or by the Regulations for the time being in force of his Diocesan Assembly, the Bishop of the Diocese may provide for and regulate the convening of such Assembly, and the Form and Manner of all Proceedings preparatory thereto, as he may think fit.
XIV. And provided, that a copy of the Regulations passed at the first Assembly to be called in any Diocese, and from time to time of any alterations of such Regulations, shall be sent by the Bishop, duly certified under his hand and seal as having been made with his assent by an Assembly of his Diocese, to the Archbishop of Canterbury, and the Archbishop shall, within six months of his receipt of the same, submit the same, with such observations thereon as he may see fit to make, for the consideration of Her Majesty in Council, and Her Majesty, by and with the advice of Her Privy Council, may allow or disallow the same as to Her Majesty, with such advice, shall seem fit; and the Regulations so allowed, and a notification of the disallowance of such Regulations as may be disallowed, shall be forthwith transmitted by the said Archbishop to the Bishop of the Diocese, and shall by him be published in the said Diocese.
XV. And provided, that any regulation disallowed by Her Majesty as aforesaid shall, after the notification of the disallowance thereof shall have been received by the Bishop of the Diocese, cease to be in force, but any Act, Matter or Thing done under or in accordance with any such Regulation before such receipt of the notification of
240 the disallowance thereof shall have the same validity and effect as if such Regulation had been allowed.
XVI. And provided, that after the Regulations certified by the Bishop of any Diocese as the Regulations made with his assent by an Assembly in his Diocese under this Act, or any of such Regulations, shall have been allowed by Her Majesty in Council, no such Regulations, nor any matter done thereunder, nor any proceeding of any subsequent Assembly shall be in any ways invalidated or affected by or on account of any error or irregularity in convening or otherwise in relation to the Assembly of which the Regulations shall have been so certified, or in relation to the proceedings preparatory to the meeting of such Assembly.
XVII. And provided, that in any Province where, for the purpose of promoting Agreement between the Rules and Regulations of the several Dioceses thereof, it shall be thought fit to hold any meeting for such Diocese jointly, the Archbishop or Metropolitan of such Province for the time being shall convene the Bishops of such Province and require them to convene the Members of their several Diocesan Assemblies, or such Representatives of the same as shall hereafter by any such Provincial Assembly be determined, at such time and place as he may deem fit, to consider of and determine upon all such things and matters as may concern the Church in the same Province; and of every such Provincial Assembly the said Archbishop or Metropolitan shall be the President and shall always preside therein personally, or by such Bishop or Bishops of his Province as he shall appoint his Commissary or Commissaries under his hand and seal for that purpose; and the Archbishop and Bishops attending such assembly shall sit and vote as one House and the Clergy and Lay Members shall sit and vote as another House, and no Act or Resolution shall be valid to which both Houses shall not have assented; and on every Division of the House of Clergy and Lay Members nothing shall be held to be carried by a majority of such House but that to which a majority of both the Clergy and Laity, voting by Dioceses, shall have assented, the vote of the majority of the Clergy present and representing each Diocese being taken as the vote of the Clergy of such Diocese and the vote of the majority of the Laymen present and representing the Laity of such Diocese being taken as the vote of the Laity of such Diocese; and all Rules and Regulations so passed shall be valid, subject to such provisions and restrictions, and to such allowances or disallowances, as has been hereinbefore provided with regard to the Regulations of such Diocesan Assemblies as aforesaid.
241
10.2 Appellate Tribunal Opinions (This list omits the one unsuccessful discipline appeal by the Rev Neil R Glover in 1968 from the Melbourne Diocesan Tribunal which removed him from Holy Orders)
The text of the opinions can be found on the Anglican Church of Australia website.
1. 18 September On Section 4 of the Constitution relating to 1972: deviations from forms of service. Section 63(1) referral by Primate at the request of the Canon Law Commission and the Liturgical Commission
2. 25 September On the remarriage of divorced persons. 1974: Section 31 request by 34 clergy as well as section 63(1) referral by Primate
3. 2 December 1976: On questions related to An Australian Prayer Book. Section 63(1) referral by Primate
4. 8 February 1980: On remarriage of divorced persons. Section 63 (1) referral by Primate
5. 8 April 1981: On admission of women to holy orders. Section 63(1) referral by Primate
6. 14 August 1985: On admission of women to holy orders. Section 63(1) referral by Primate
7. 27 February 1987: On validity of Canon to authorize women deacons. Section 30 referral by Primate
8. 6 June 1989: Opinion on s.17(5) and women deacons. Section 63(1) referral by Primate
9. 2 November 1989: Opinion on the Ordination of Women to the Office of Priest Act 1988 of the Synod of the Diocese of Melbourne (The Melbourne Opinion)
10. 28 November Opinion on Eleven Questions Appertaining 1991: to the ordination of a woman to the Order of Priest or the Consecration of a Woman Bishop, (The Women Priests Opinion)
11. 24 December Opinion on a Reference Concerning 1997: Diaconal and Lay Presidency. Section 63(1) referral by Primate
242
12. 24 December Questions on the conduct of church 1997: services.
13. 4 April 2007: Section 30 opinion and Section 63(1) opinion re Special Tribunal Canon 2004 and National Register Canon 2004
14. 26 September Opinion on Women bishops and the 2007: constitution
15. 8 March 2010: Section 30 opinion re National register Canon 2007; Special Tribunal Canon 2007 and Offences Canon Amendment Canon 2007
16. 10 August 2010: On the Legality Of The Administration Of Holy Communion By Deacons Or Lay Persons. Section 63 (1) referral by Primate at request of 25 members
17. 8 September Section 30 opinion re National register Canon 2007; Special Tribunal Canon 2007 2010: and Offences Canon Amendment Canon 2007
.
243 10.3 10.3 Appellate Tribunal Membership (Office at time of appointment then further appointments, if any)
P=President; DP= Deputy President; [dates of office]
Arnott, Frank R Archbishop of Brisbane [1977-1980]
Aspinall, Philip Abp of Brisbane then Primate [2004-] President, Industrial Court & Industrial Belby, GEH, OBE (Mil) Commission SA [1969,1972, Deputy President, 1977] Barrister then Justice Supreme Court of Belby, David, QC SA [1995-2010]
Brain, Peter Bishop of Armidale [2001-2010]
Chiswell, Peter Bishop of Armidale [1992-2001]
Clements, Kenneth J Bp of Canberra and Goulburn [1961-66] Solicitor General then Justice Supreme Cox, Brian R, QC Court SA [1981, P80- 1995]
Davidson, Gillian Solicitor, NSW [2007-]
Garnsey, David A Bishop of Gippsland [1961-66; 69-77]
George, Ian Archbishop of Adelaide [1992-2004] Justice Supreme Court Victoria [1973- Gillard, OJ Kt DP77- 1980] Barrister then Justice NSW Court of Handley, Kenneth R, AO, QC Appeal [1981, DP 1998-2004] Bp of Newcastle, then Abp of Perth Herft, Roger [2007- Lt General, Chief Justice and Lt Governor Herring, Edmund F, KCMG Victoria [1961P-1973]
Holland, Alfred C Bishop of Newcastle [1981-1992]
Horton, David OAM Solicitor, [2004, DP 2007-] Justice Supreme Court NSW [1969- Jenkyn, Norman A, QC 1980, P77] Archbishop of Sydney then Primate Loane, Marcus L, KBE [1966-1982] President, NSW Court of Appeal. [2004, Mason, Keith, AC, QC P 2010-] Justice Supreme Court Victoria [1977- Murray, BL, CBE, QC 1981] Archbishop of Adelaide, then Archbishop Rayner, Keith, AO of Melbourne and Primate [1981 Bishop then Archbishop of Adelaide Reed, Thomas T [1966-77]
Refshaugee, Richard SC Justice Supreme Court ACT [2007-] Justice Supreme Court NSW [1961 DP, Richardson, Athol R, OBE, KC 73P, 1977]
244 Robinson, DWBR, AO Archbishop of Sydney [1985-92]
Ross, DB, Kt Justice Supreme Court SA [1961-66] Justice Supreme Court Victoria [1981- Tadgell, RC, AO, QC 2004]
Warren, Cecil A Bishop of Canberra and Goulburn [1977
Wanstell, CG, QC Justice Supreme Court Qld [1961-66]
Wilson, Bruce Bishop of Bathurst [1992-2001] Abp of Melbourne then Primate [1961- Woods, Frank, KBE 1966] Barrister then Chief Judge in Equity, then Young, Peter W, AO,QC Justice, NSW Court of Appeal [1981, P- 2007-2010]
245 Photograph: Appellate Tribunal
Appellate Tribunal: Women Bishops Reference, St Andrew’s House Sydney, September 2007.
(l to r) Justice David Bleby , Justice Keith Mason AC, Mr David Horton OAM, Deputy President, Justice Peter Young AO, President, Archbishop Phillip Aspinall, Archbishop Roger Herft, Bishop Peter Brain.
(photo: Robert Tong, with permission of the members)
246 11 BIBLIOGRAPHY
BOOKS and REPORTS Addleshaw, George W, ‘The Law and Constitution of the Church Overseas’ in Edmund R Morgan and Roger Lloyd (eds), The Mission of the Anglican Communion ( SPCK & SPG, London: 1948) Australian Government Productivity Commission, Contribution of the Not- For-Profit Sector Research Report (Canberra: 11 February 2010). Australian Judicial System Advisory Committee, Parliament of Australia, Report of the Advisory Committee on the Australian Judicial System (1987). Austin, Albert G, Australian Education 1788-1900: Church, State and Public Education in Colonial Australia (Pitman & Sons, Melbourne: 1965) Baker, John, The Oxford History of the Laws of England, Volume VI 1483- 1558 (Oxford University Press, Oxford: 2003) Beal, Hugh, Chitty on Contracts (Sweet & Maxwell, London: 29th ed, 2004) Berle, Adolf and Gardiner Means, The Modern Corporation and Private Property (Harcourt Brace & Company, New York: 1968) Bible Bigge, John T, Report of the Commissioner of Inquiry into the State of the Colony of New South Wales to the House of Commons, 1822. Blackstone, William, Commentaries on the Laws of England (Clarendon Press, Oxford: 1765) Bolt, Peter, Mark Thompson and Robert Tong (eds), The Lord’s Supper in Human Hands (Australian Church Record, Camperdown, NSW: 2008) Bolt, Peter G, The Indispensable Parson William Cowper 1778-1858 (Bolt Publishing, Sydney: 2009). Bolt, Peter, Mark Thompson and Robert Tong (eds), The Lord’s Supper in Human Hands: Epilogue (Australian Church Record, Camperdown, NSW: 2010) Book of Common Prayer (Oxford University Press, Oxford: 1662) Booker, Keven, Arthur Glass and Robert Watt, Federal Constitutional Law, (Butterworths, Sydney: 2nd ed, 1998) Border, Ross, Church and State in Australia 1788-1872 (SPCK, London: 1962) Bottomley, Stephen, The Constitutional Corporation (Ashgate Publishing Ltd, Aldershot: 2007) Butterworths, Halsbury's Laws of England, vol 14 ‘Ecclesiastical Law’ (Butterworths, London: 4th ed 1973-) Cable, Kenneth J, The Churches and Local Government Finance (Ian J Harvey, Sydney: 1966) Canon Law Commission in Canon Law in Australia (Anglican Church of Australia Trust Corporation, Sydney: 1981) Carey, Hilary M, ‘Gladstone, the Colonial Church and Imperial State’ in Church and State in Old and New Worlds (Brill, Leiden: 2011). Carter, John W, Elisabeth Peden and G J Tolhurst, Contract Law in Australia (Butterworths, Sydney: 5th ed,, 2007) Castles, Alex, An Australian Legal History (Lawbook, Sydney: 1982) Chadwick, Owen, The Victorian Church, Part One 1829-1859 (SCM Press Ltd, London:1987) ____,The Victorian Church Part, Two 1860-1901 (SCM Press Ltd, London: 1987) Clark, C Manning H, A History of Australia (Melbourne University Press, Sydney: 1968) Clarke, Henry L, Constitutional Church Government (SPCK, London: 1924)
247 ____, The Constitutions of the General, Provincial and Diocesan Synods of the Church of England in Australia (McCarrion Bird & Co, Melbourne: 1919) Cockshut, Anthony O J, Anglican Attitudes: A study of Victorian Religious Controversies (Collins, London: 1959) Commonwealth of Australia, Disclosure Regimes for Charities and Not-For- Profit Organisations (Commonwealth of Australia: 2008) Constitutions and Canons Ecclesiastical 1604 (Clarendon Press, London: 1923) Cross, Claire, Church and People 1450-1660 (Fontana/Collins, Glasgow: 1976) Curtis, William, The Lambeth Conferences (AMS Press, New York: 1968) Davis, John, Australian Anglicans and Their Constitution (Acorn Press, Melbourne: 1993) Daw, Ellis D, Church and State in the Empire: the Evolution of Imperial Policy 1846-1856 (Faculty of Military Studies, UNSW, Canberra: 1977) Dickens, Arthur G, The English Reformation (Batsford, London: 1964) Doe, Norman, Canon Law in the Anglican Communion- A Worldwide Perspective (Clarendon Press, Oxford:1998) Etherington, Norman, Missions and Empire (OUP, Oxford: 2005) Fletcher Keith, The Law Relating to Non-Profit Associations in Australia and New Zealand (Lawbook Company, Sydney: 1986) Foot, Michael R D, The Gladstone Diaries (Clarendon Press, Oxford: 1968- 1994) Forbes, John R S, Justice in Tribunals, (The Federation Press, Sydney: 3rd ed, 2002) Ford, Harold A J, Unincorporated Non-Profit Associations. Their Property and their Liability (Clarendon Press, Oxford: 1959) Ford, Harold A, Robert P Austin and Ian M Ramsay, Ford's Principles of Corporations Law, (Butterworths, Sydney: 10th ed, 2001) Frappell, Ruth and Robert Withycombe, Anglicans in the Antipodes: An Indexed Calendar of the Papers and Correspondence of the Archbishops of Canterbury,1788-1961, Relating to Australia, New Zealand and the Pacific (Greenwood Press, Westport, Connecticut: 1999) Giles, Robbie A, The Constitutional History of the Australian Church (Skeffington & Son , London: 1929) Government Printer, Historical Records of New South Wales (Sydney: 1892-1901) Gower, Laurence, The Principles of Modern Company Law (Stevens, London: 3rd ed,1969) Hanks, P, Australian Constitutional Law, ( Butterworths, Sydney: 5th ed, 1994). Hansard, Thomas C, Hansard’s Parliamentary Debates vol 120-178 (London: 1829-1891) Heal, Felicity, Reformation in Britain and Ireland (Oxford University Press, Oxford: 2002) Helmholtz, Richard H, The Oxford History of the Common Laws of England: The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford University Press, Oxford: 2004) Hinchliff, Peter, The Anglican Church in South Africa (London DLT: 1963) Hobson, John A, Imperialism: A Study (Allen & Unwin, London: 3rd ed, 1938)
248 Ive, Anthony, A Candle Burns in Africa, (Church of England in South Africa, Natal: 1992) Jenkins, Roy, Gladstone A Biography (Random House, New York: 1997) Judd, Stephen and Kenneth J Cable, Sydney Anglicans (Anglican Information Office, Sydney: 1987) Kaye, Bruce (ed), Anglicanism in Australia (Melbourne University Press, Melbourne: 2002) Lambeth Commission, The Windsor Report (Anglican Communion Office, London: 2004) Lane, Patrick, The Australian Federal System with United States Analogues (Lawbook , Sydney: 1972) ____, Lane's Commentary on the Australian Constitution (Lawbook Sydney: 1986) Lawbook, The Laws of Australia (Lawbook, Melbourne:1993-) LexisNexis, Halsbury's Laws of Australia Lloyd, Denis, The Law Relating to Unincorporated Associations (Sweet & Maxwell, London: 1938) Loane, Marcus L, Hewn from the Rock (Anglican Information Office, Sydney,1976). MacFarlane, Peter and Simon Fisher, Churches, Clergy and the Law (Federation Press, Sydney: 1996). Macintosh, Neil, Richard Johnson, Chaplain to the Colony of New South Wales: His Life and Times 1755-1827 (Library of Australian History, Sydney: 1978) Matthew, Henry C G, Gladstone: 1809-1898 (Clarendon Press, Oxford: 1997). McPherson, Bruce H, The Reception of English Law Abroad (The Supreme Court of Queensland Library, Brisbane: 2007) New South Wales, Parliamentary Debates New Zealand Law Commission, Company Law Reform and Restatement (R 9, Wellington: 1989) O'Connell, Daniel P and Ann Riordan, Opinions on Imperial Constitutional Law (Lawbook , Sydney: 1971) Outhwaite, R Brian, The Rise and Fall of the English Ecclesiastical Courts, 1500–1860, (Cambridge University Press, Cambridge: 2006). Patterson, Jeannie, Andrew Robertson and Arlen Duke, Principles of Contract Law (Lawbook Sydney: 2nd ed, 2005) Pestana, Carla G, Protestant Empire, Religion and the Making of the British Atlantic World. (University of Pennsylvania Press, Philadelphia: 2011) Porter, Muriel, Sydney Anglicans and the Threat to World Anglicanism (Ashgate, London: 2011). Powell, John, ‘Gladstone and the Colonial Church Clause: An Episode in Church-State Relations, 1849-1850’, in Michel Desjardins and Harold Remus (eds), Tradition and Formation: Claiming an Inheritance: Essays in Honour of Peter C Erb (Pandora Press, Ontario:2008) Quick, John and Robert Garran, The Annotated Constitution of the Australian Commonwealth (1901 edition) (Legal Books, Sydney: 1976) Rees, John, The Principles of Canon Law Common to the Churches of the Anglican Communion (The Anglican Communion Office, London: 2008) Robin, Arthur de Quetteville, Charles Perry, Bishop of Melbourne (University of Western Australia Press: 1967)
249 Robinson, Ann, Robert Tong and Peter Young, ‘Ecclesiastical Law’ in Australian and New Zealand Commentary on the 4th Edition of Halsbury's Laws of England (Butterworths, Sydney: 1991) Scottish Law Commission, Discussion Paper on Unincorporated Association (Scottish Law Commission Discussion Paper 140 Sealy, Leonard, Cases and Materials in Company Law (Oxford University Press, Oxford: 5th ed,1992) Seddon, Nicholas and Manfred P Ellinghaus, Cheshire and Fifoot’s Law of Contract (LexisNexis Butterworths, Sydney: 9th ed 2008) Selway, Bradley, The Constitution of South Australia (The Federation Press Sydney: 1997) Shea, Victor,(ed), Essays and Reviews: the 1860 Text and its Reading (University Press of Virgina, Charlottesville: 2000) Sievers, A Sally, Associations Legislation in Australia and New Zealand (Federation Press, Sydney: 2010) Standing Committee of General Synod, Proceedings: Fifth General Synod Anglican Church of Australia 1977 (General Synod Office Sydney:1978) Standing Committee of General Synod, Proceedings: Sixth General Synod Anglican Church of Australia 1981 (General Synod Office, Sydney: 1982) Stephenson, Alan M, Anglicanism and the Lambeth Conferences (SPCK, London: 1978). Stoljar, Samuel J, Groups and Entities: An Inquiry into Corporate Theory (Australian National University, Canberra: 1973) Todd, Alephus, Parliamentary Government in the British Colonies (Longmans & Co, London: 1880) Twomey, Anne, The Constitution of New South Wales (Federation Press, Sydney 2004) Upham, Bruce, God and Caesar in Australia-Aspects of Church and State from 1788 (Zeus Publications, Queensland: 2009). Walker, David, The Oxford Companion to Law (OUP, Oxford: 1980) Warburton, Jean, Unincorporated Associations: Law and Practice, (Sweet & Maxwell, London: 2nd ed, 1992) Williams, E Neville, The Eighteenth-Century Constitution 1688-1815 Documents and Commentary (Cambridge University Press, Cambridge: 1960) Winterton, George, et al, Australian Federal Constitutional Law, (LBC Information Services, Sydney: 1999) Woodward, Ernest L, The Age of Reform 1815-1870 (Clarendon Press, Oxford: 1938) Yarwood, Alexander T, Samuel Marsden (Melbourne University Press, Melbourne: 1977) Young, Peter, Clyde Croft and Megan Smith, On Equity (Lawbook, Sydney: 2009) Zines, Leslie, The High Court and the Constitution (Butterworths, Sydney: 1997)
ARTICLES Alexander, Harriet, ‘Church Legal Battle Divides Macedonian Congregants’, Sydney Morning Herald, 21-22 February 2009 3 Ballarat Bishop Hough Cleared by Church The Courier, 25 June 2010 Baxt, Robert, 'The Dilemma of the Unincorporated Association' (1973) 47 Australian Law Journal 305
250 Bishop Ross Davies Found Guilty of disgraceful conduct by Anglican Church Tribunal’, The Australian, 29 September 2010 Black, Alan W, ‘Some Aspects of Religion and Law: The Case of Church Union in Australia’ (1986) 16 Religion 225 Blake, Garth, 'Serving God and the Church: Clergy, Employment and Discrimination' (2006) 80 Australian Law Journal 571 Coper, M, 'Critique and Comment Concern About Judicial Method' ([2006]) 17 (30) (2) Melbourne University Law Review 554 Corbett, Angus and Peta Spender, 'Corporate Constitutionalism' (2009) 31 Sydney Law Review 147 Cranmer, Frank A, 'Christian Doctrine and Judicial Review: the Free Church Case Revisited' (2002) 6 Ecclesiastical Law Journal 203 Crawshaw, Stephen ‘The High Court of Australia and Advisory Opinions’ 51 Australian Law Journal 112 Cumbrae-Stewart, Francis W S, 'Section 116 of the Constitution' (1946) 20 Australian Law Journal 207 Doe, Norman, 'The Contribution of Common Principles of Canon Law to Ecclesial Communion in Anglicanism' (2008) 10 Ecclesiastical Law Journal 71 Drury, Robert R, 'The Relative Nature of Shareholders Right to Enforce the Company Contract' (1986) Cambridge Law Journal 219-246 Esbeck, Carl H, 'Table of United States Supreme Court Decisions Relating To Religious Liberty 1789-1994' (1993-1994) 10 Journal of Law and Religion 573 Frankfurter, Felix, ‘A Note on Advisory Opinions’ (1924) 37 Harvard Law Review 1002 Freeman, Michael, ‘Obituary: Lord Lloyd of Hampstead’ The Independent, London, Friday 8 January 1993. Gregory, Roger, 'The Section 20 Contract' (1981) 44 Modern Law Review 526 Holden, A C, ‘Judicial Control of Voluntary Associations’ (1971) 4 New Zealand Universities Law Review 343. Irving, Helen, ‘Advisory Opinions, The Rule of Law, and The Separation of Powers’ (2004) 4 Macquarie Law Journal 105 Keane, Patrick A, 'Judicial Review: The Courts and the Academy' (2008) 82 Australian Law Journal 623 Kirby, Michael, 'Judicial activism: power without responsibility, No, Appropriate Activism Conforming to Duty' (2006) Melbourne University Law Review 30(2) 567 Laski, Harold, ‘The Personality of Associations’ (1916) 29 Harvard Law Review 404 Mason, Keith, ‘The distinctiveness and independence of intermediate courts of appeal’ (2012) 86 Australian Law Journal 308 McBain, Graham, 'Abolishing the Crime of Sedition: Part 2' (2009) 83 Australian Law Journal 449 ______,’The Religion of The Queen—Time For Change’ University of Queensland Law Journal vol 30 (2) 2011 McKenny, Leesha ‘Churchgoer Loses Fight over Unwanted Sex Comments’, The Border Mail, 9 March 2011 McLeish, S, 'Making sense of Religion and the Constitution: a Fresh Start for s 116' (1992) 18 Monash Law Review 207 McPherson, Bruce, 'The Mystery of Anonymous (1722)' (2001) 75 Australian Law Journal 169 ____,'The Church as Consensual Compact Trust and Corporation' (2001) 74 Australian Law Journal 159
251 Marriner, Cosmina, ‘Priest Fired for Unholy Communion’, Sydney Morning Herald, 20 February 2009 Mortensen, Reid, ‘Church Legal Autonomy’ (1994) 14 Queensland Lawyer 212-226 Munro, Colin R, 'Does Scotland have an Established Church?' (1997) 4 Ecclesiastical Law Journal 639-645 Pannam, C, 'Travelling Section 116 with a US Road Map' (1963) 4 Melbourne University Law Review 41 Pearce, CC Augur, ‘Public Religion in the English Colonies’ (2000) 5 Ecclesiastical Law Journal 440 Rubin, Gerald, ‘The Nature Use and Effect of Reference Cases in Canadian Constitutional Law ’ 6 McGill Law Journal 168; Seivers, Sally and Robert Baxt, ‘The Rights of Members of an Unincorporated Association or a Victorian Incorporated Association to Challenge Decisions of Management - A Continuing Defect in the Law’ in Company and Securities Law Journal, (1984) (February) 3. Seivers,Sally, ‘Incorporation of Non Profit Associations: The Way Ahead?’ (2000) (August) 18 Company and Securities Law Journal 311. Swartz, Barney, ‘Disgrace Charge Brought Against Bishop’, The Age, 9 March 2010 Starke, Joseph G ‘The High Court and Advisory Opinions-a New Revised Proposal’ 56 Australian Law Journal 2; Taylor, Greg, 'The Origins of Associations Incorporation Legislation — the Associations Incorporation Act 1858 of South Australia' (2003) 22 University of Queensland Law Journal 224 Twaits, Andrew, ‘The Duties of Officers and Employees in Non Profit Organisations’ (1998) 10 Bond Law Review 313 Vann, Vicki J, ‘The High Court gives some advice to trustees: The Macedonian Church case’(2009) 32 Australian Bar Review 123 Wedderburn, Kenneth, 'Shareholders' Rights and the Rule in Foss v Harbottle' (1957) Cambridge Law Journal 194 Young, Peter, Anglican Trusts Corporation (Gippsland) v A-G(Vic) [2008] VSC 352, Case Note, (2010) 84 Australian Law Journal 91
CASES Adelaide Company of Jehovah's Witnesses Incorporated v The Commonwealth (1943) 67 CLR 116 A-G (Vic) ex rel Black v The Commonwealth of Australia (1981) 146 CLR 559 A-G (NSW) v Church of England Property Trust Diocese of Sydney (1933) 34 SR (NSW) A-G (NSW) ex rel Ashleford v Wylde (1948) 48 SR (NSW) 366 Anglican Trusts Corporation (Gippsland) v A-G(Vic) [2008] VSC 352 Australian Coal & Shale Employees Federation v Smith (1937) 38 SR (NSW) 48 Bagga v The Sikh Association of Western Australia Inc [2012] WASC 193 Bailey v NSW Medical Defence Union Ltd (1995) 184 CLR 339 Bailey v The Uniting Church in Australia Property Trust (Qld) 1984 1QdR 42 Bishop of Cape Town v Bishop of Natal (1869) 6 Moore 204 Bishop of Natal v Gladstone (1866) 3 Ch 1 Browne v La Trinidad (1887) 37 Ch D 1 Cameron v Hogan (1934) 51 CLR 358 Carew-Reid v Public Trustee and Ors 1996 20 ACSR 443; 14 ACLR 1106
252 Carlton Cricket & Football Social Club v Joseph [1970] VR 478 Carter v New South Wales Netball Association [2004] NSWSC 737 Church of Scientology Inc v Woodward (1982) 154 CLR 25 Church of the New Faith v Commissioner of Pay-roll Tax (Vic) (1983) 154 CLR 120 Coleman v Liberal Party of Australia (2007) 212 FLR 271 Conservative and Unionist Central Office v Burrell [1982] 1 WLR 522 Cooper v Stewart (1889) 14 App Cas 286 (PC) Dawkins v Antrobus (1881) 17 Ch D 615 Dixon v Australian Society of Accountants (1989) 95 FLR 231 Dr Warren's Case (1835) Grindrod's Compendium, 8th ed. 371 Dunnett v Forneri 25 Grant Ch. Cas. 199 Eley v The Positive Government Security Life Assurance Company, Limited (1875) 1 Ex.D 20 Ermogenous v Greek Orthodox Community of South Australia (2002) 120 CLR 95 Ermogenous v Greek Orthodox Community of South Australia (2002) 209 CLR 95 Finlayson v Carr [1978] 1 NSWLR 567 Fisher v Keene (1878) 11 Ch D 353 Fitzpatrick v Lithgow and District Workmens Club Limited [2012] NSWSC 265 Flynn v University of Sydney [1971] 1 NSWLR 857 Forbes v Eden (1867) LR 1 Sc & Div 568 Foss v Harbottle (1843) 2 Hare; 67 ER 461 Free Church of Scotland v Overton [1904] AC 515 Free Serbian Orthodox Church Diocese for Australia and New Zealand Property Trust [2012] NSWSC 649 Goodwin v VVMC Club Australia (NSW Chapter) [2008] NSWSC 154 Gorham v Bishop of Exeter (1850) Moore's Special Reports 462 Greek Orthodox Community of South Australia Inc v Ermogenous (2000) 77 SASR 523 Grogan v McKinnon [1973] 2 NSWLR 290 Haddon v Forsyth [2011] NSWSC 123 Harrison v Hearn (1972) 1 NSWLR 428 Hickman v Romney Marsh Sheep-Breeders' Assoc. [1915] 1 Ch 881 Houldsworth v City of Glascow Bank (1880) 5 App Cas 317 Islamic council of South Australia v Australian Federation of Islamic Councils Inc [2009] NSWSC 211 Jones v Skinner (1836) 5 LJ Ch 90 Judd v McKeon (1926) 15 CLR 366 Krygger v Williams (1912) 15 CLR 366 Labouchere v Earl of Wharncliffe (1879) 13 Ch D 346 Lange v Australian Broadcasting Commission (1997) 189 CLR 520 Lee v The Showmen's Guild of Great Britain [1952] 2QB 329 Lloyd v Loaring (1802) 6 Vesty 773; 31 ER 1302 Long v Cape Town (Bishop of) (1863) 1 Moore NS 411; 15 ER 756 Mabo v Queensland (No2) (1992) 175 CLR 1 Macedonian Orthodox Community Church of St Petka Incorporated v His Eminence Petar the Diocesan Bishop of Macedonian Orthodox Diocese of Australia and New Zealand [2008] HCA 42 MacQueen v Frackelton (1909) 8 CLR 763 Marshall v Graham [1907] 2 KB 112 McKinnon v Grogan [1974] 1 NSWLR 295 Melhado v Porto Alegre Ry. Co. LR 9 CP 503
253 Merriman v Williams (1882) 7 App. Cas 484 Metropolitan Petar v Mitreski [2009] NSWSC 106 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 Nagle v Feilden [1966] 2 QB 633 National Provincial Bank Ltd v Ainsworth [1965] AC 1175 NSW Medical defence Union Ltd v Crawford (1995) 13 ACLR 1695 Plenty v Seventh Day Adventist Church of Port Pirie [2009] SASC 10 Plenty v Seventh-Day Adventist Church of Port Pirie (1986) 95 SASR 121 The Queen v The Provost of Eton College 27 Law J Rep (NS) QB 132 Rai v The Charity Commission of England and Wales [2012] EWHC (Ch) 1111 Rayfields v Hands (1960) Ch1; [1958] 2 All ER 194 Re Koeppler's Will Trust [1985] 3 WLR 756 Re Natal, Lord Bishop of (1865) III Moore NS 115; (1865) 16 ER 43 Rose v Boxing NSW Inc & Anor [2007] NSWSC 20 Scandrett v Dowling [1992] NSWSC 40040 28 January 1992 Scandrett v Dowling [1992] NSWCA 41141 31 January 1992 Scandrett v Dowling (1992) 27 NSWLR 483 St Vincent de Paul Society (Qld) v Ozcare Ltd [2009] QCA 335 Stevens v Keogh (1946) 73 CLR 1 Sturt v The Anglican Bishop of Newcastle, NSWSC 2011/6125 The Free Church of Scotland v Overton [1904] AC 515 Tomasevic v Jovetic [2012] VSC 223 Trustees of the Roman Catholic Church (2007) 63 ACSR 346;[2007] NSWCA 117 Union Steamship Co of Australia Pty Ltd v King (1988) 82 ALR 43 Victoria v Commonwealth (1957) 99 CLR 575 Wilcox v Kogarah Golf Club Ltd (1996) 14 ACLR 420 Williams v Commonwealth [2012] HCA 23 Williams v Salisbury (Bp) (1863) 2 Moo PCCNS 375, PC Wylde v A-G(NSW) ex rel Ashelford (1948) 78 CLR 224
LEGISLATION Act 30 Victoria, 1866 (NSW) Act for the Establishment of the King's Succession 25 Henry Vlll, c 22 (1534) (UK) Act for the Submission of the Clergy 25 Henry Vlll, c 19 (1534) (UK) Act in Restraint of Appeals 25 Henry Vlll, c 12 (1533) (UK) Act of Dispensations 25 Henry Vlll, c 21 (1534) (UK) Act of Supremacy 26 Henry Vlll, c 1 (1534) (UK) Act of Supremacy l Eliz l, c 1 (1559) (UK) Act of Uniformity 1Eliz 1, c 1 (1559) (UK) Act of Uniformity 14 Charles ll, c4 (1662) (UK) Anglican Church of Australia (Bodies Corporate) Act 1938 (NSW) Anglican Church of Australia Constitutions Act 1902 (NSW) Anglican Church of Australia Constitution Act 1961 (NSW) Anglican Church of Australia Act 1980 (ACT) Anglican Church of Australia Act 1976 (NT) Anglican Church of Australia Constitution Act 1961 (Qld) Anglican Church of Australia Constitution Act 1961 (SA) Anglican Church of Australia Constitution Act 1977 (Tas) Anglican Church of Australia Constitution Act 1985 (Vic) Anglican Church of Australia Constitution Act 1960 (WA) Anglican Church Trust Property Act 1917 (NSW) Associations Incorporation Act 1858 (SA)
254 Baptist Churches of New South Wales Property Trust Act 1984 (NSW) Baptist Incorporation Act 1919 (NSW) Church (The)Act 1836 (NSW) Church of England Act 1854. 18 Victoria Church of England Property Management Act 1866 (NSW). Church of England Trust Property Incorporation Act 1881 (NSW) Churches of Christ in New South Wales Incorporation Act 1947 (NSW) Churches of Christ, Scientist, Incorporation Act 1962 (NSW) Church of (Scotland) Act 1905 (UK) Companies Act 1993 (NZ) Conventicle Act 16 Charles ll, c 4 (1664) (UK) Coptic Orthodox Church (NSW) Property Trust Act 1990 (NSW) Corporations Act 2001 (Cth) Corporations Act 13 Charles ll, St 2 c1 (1661) (UK) Equity Act 1901 (NSW) Fellowship of Congregational Churches (NSW) Incorporation Act 1977 (NSW) Five Mile Act 17 Charles ll, c 2 (1665) (UK) Greek Orthodox Archdiocese of Australia Consolidated Trust Act 1994 (NSW) The Heresy Act 25 Henry Vlll, c xx (1534) (UK) Holy Apostolic Catholic Church of the East Property Trust Act 1992 (NSW) Joint Stock Companies Act 7 & 8 Vict, c 110 (1844) (UK) Joint Stock Companies Act 19 & 20 Vict, c 47 (1856) (UK) Macedonian Orthodox Church Property Trust Act 1998 (NSW) Methodist Church of Samoa in Australia Property Trust Act 1998 (NSW) Partnership Act 1892 (NSW) Presbyterian Church of Australia Act 1971 (Qld) Presbyterian Church (Corporations) Act 1995 (NSW) The Presbyterian Church (New South Wales) Property Trust Act 1936 (NSW) Religious Educational and Charitable Institutions Act of 1861 (Qld) Reorganised Church of Jesus Christ of Later Day Saints Property Trust Act 1959 (NSW) Roman Catholic Church Communities, Lands Act 1942 (NSW) Roman Catholic Church Trust Property Act 1936 (NSW) Russian Orthodox Church (NSW) Property Trust Act 1991 (NSW) Salvation Army (New South Wales) Property Trust Act 1929 (NSW) Sydney Diocese: Church Administration Ordinance 1990 The Synod of Eastern Australia Property Act 1918 (NSW) Uniting Church in Australia Act 1977 (Qld)
OTHER Ellis-Jones, Ian, A Better Definition of 'Religion' for Legal Purposes in Australia (PhD Thesis, University of Technology, Sydney, 2007) Galbraith, David, Just Enough Religion to Make Us Hate: an Historico- Legal Study of the Red Book Case (PhD Thesis, University of New South Wales, 1998) Macintosh, Neil, Richard Johnson: Church of England Chaplain to the Colony of New South Wales (MA Thesis, Macquarie University, 1977) Anglican Communion website < http://www.anglicancommunion.org/> Australian Bureau of Statistics
255