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’. iii 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. iv 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