The Australian appellate decision is a step too far says the Anglican Church League


From the Anglican Church League: Dr Robert Tong AM, Chairman of the Anglican Church League, has written this response to the Opinion given by the Appellate Tribunal of the Anglican Church of Australia.

The Appellate Tribunal of the Anglican Church of Australia

This afternoon the Primate (Archbishop Geoff Smith), released on the General Synod website the Opinions of the Appellate Tribunal on references made by him to the Tribunal for their Opinion on the validity or otherwise of legislation made by two dioceses of the Australian Church.

The Diocese of Wangaratta passed legislation to authorise a service to bless marriages which have been conducted in accordance with the Commonwealth Marriage Act.  However, there are some marriages, validly contracted under the law, which are not recognised by the church. These marriages could be blessed by use of the Wangaratta service.

The Diocese of Newcastle passed legislation in similar terms to the Wangaratta Diocese authorising the use of a blessing service. However, the Bishop did not provide his assent to the legislation within the required 30 days and, accordingly, the legislation lapsed.  There is nothing to prevent the legislation being reintroduced at a subsequent synod and, if assented to by the Bishop it will form part of the law of the diocese of Newcastle.  Secondly, that Newcastle Synod amended the jurisdiction of its diocesan tribunal.  The amendment removed from the jurisdiction of the diocesan tribunal, power to entertain complaints about clergy who had used the blessing service.

The Appellate Tribunal is created by the General Synod Constitution.  The Tribunal is the final forum in Australia for discipline appeals from a diocese.  The constitution also gives the Tribunal a function to provide advisory opinions on questions referred to it. Its membership consists of three diocesan bishops and four lawyers. Thus, it is a mixed body with training and skills in law and theology. Members of General Synod elect the members of the Tribunal and once elected they remain until retirement at 70.

On these references, the Tribunal invited written submissions from interested parties and then conducted their deliberations in private.  Under section 58 of the Constitution, where the Tribunal is not agreed on a question of doctrine, they can seek the opinion of the House of Bishops and the Board of Assessors. The Assessors are a panel of seven clergy elected by the General Synod. On the three questions asked, the House of Bishops provided a unanimous reply. The same questions to the Board of Assessors also resulted in a unanimous response. The theological thrust of the reports from the bishops and assessors was that the underlying theology in the blessing service was contrary to the Fundamental Declarations and Ruling Principles of the Anglican Church of Australia.

So much by way of background. The President of the Tribunal, the Hon Keith Mason AO QC was joined by the Hon Richard Refshauge, the Most Rev’d Dr Phillip Aspinall, Professor the Hon Clyde Croft AM SC and the Rt Rev’d Garry Weatherill, who formed the majority and gave one joint opinion.

There is a profound sense of disappointment in reading the lengthy majority opinion. In essence, the majority held that the meaning of ‘doctrine’ in the constitution is narrow. That is, in the constitution, doctrine is the teaching on the faith which is necessary to salvation. Thus, at paragraph 180:

In our view, the matters in the present reference do not involve issues of faith or doctrine properly so called any more than the dispute over female ordination. The contending views about “blessing” same-sex marriages are strongly held. But, with respect to some of the recent rhetoric, and the actions taken abroad by some bishops of this Church, the blessing of same-sex marriages does not [necessarily] involve denial of God or repudiation of the Creeds or rejection of the authority of Holy Scripture or apostasy on the part of bishops or synods prepared to support such measures.

Given that questions of doctrine were in play as well as answers from the House of Bishops and the Board of Assessors, it is disappointing that the majority have formulated an opinion which skirts around the theological position set out in the reports from the bishops and assessors.  And it is particularly curious that the two bishops on the Tribunal (who are also members of the House of Bishops) did not provide their own ‘theological’ addendum to the majority opinion. Especially so, when the majority opinion, of which they are part, opens the door for the blessing of behaviour which the Bible clearly says will exclude people from inheriting the kingdom of God (1 Corinthians 6:10).

The minority opinion of Ms Gillian Davidson asserts that ‘doctrine’ should be given the meaning intended by the framers of the Constitution, as a standard of our unity and our coherence as a distinctly Anglican body of believers.   She accepts the theological position in the unanimous opinions of the House of Bishops and Board of Assessors, that same sex practice is contrary to the faith and practice of the Church; persistent, unrepentant sin precludes a person from God’s kingdom; and God cannot bless that which is named as sin. For my part, it is inconceivable that the leading synod members of the 1955 General Synod, some known to me, who adopted the Constitution, would in any way support the narrow interpretation of ‘doctrine’ as expressed by the majority Opinion.

On the Newcastle reference, the curtailing of the jurisdiction of the diocesan tribunal was the point at issue. The change is to preclude categories of conduct by clergy in that diocese from being the subject of a charge in the diocesan tribunal. The majority held that the amending legislation was a valid exercise of the constitutional power of the diocesan synod. Ms Davidson took the view that the synod’s power may only be exercised ‘for the order and good governance of this Church within the diocese’ and that the proposed ordinance of the synod harms good order and governance and therefore is inconsistent with the Constitution.

The Opinions on both references require considered reflection on the legal reasoning and the treatment of Scripture by Tribunal members. While that may take some time, the conclusion is clear and disturbing. A presenting question is: who can articulate ‘doctrine’ in the Anglican Church of Australia? A contest between General Synod and the Appellate Tribunal is inevitable.

What might flow from these Opinions? Anybody familiar with the long and tortured gestation of the Constitution, will recognise that the hard-won unity of the Church, as expressed in the opening sections of the Constitution is under threat. The ordination of women created a state of impaired communion putting pressure on unity. If same sex liturgical blessings become part of the life of a diocese the unity of the Anglican Church of Australia will be on paper only.

Participation in the Holy Communion is seen by many as the visible expression of unity. When some Primates, at a Primates Meeting, declined to join in Communion with Primates from provinces which did not uphold biblical sexual morality, that was the ultimate breach of unity. Could that happen at an Australian Bishops Conference or at General Synod?    

At ground level, some congregations in dioceses which adopt the innovation, may want episcopal oversight from another bishop. Others may see that diocese as ripe for church planting.

Looking more widely, do these Opinions mark the line in the sand which was crossed in New Zealand, Canada, the United States and the United Kingdom?

Remembrance Day 2020.