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The Constitutionality of Diocesan Legislation Relating to Same-Sex Blessings and Marriage in the Anglican Church of Australia: A Case Note
Published online by Cambridge University Press: 16 December 2021
Extract
In November 2020, the Appellate Tribunal (the Tribunal) of the Anglican Church of Australia (ACA) provided its opinion on references as to the constitutionality of diocesan legislation relating to same-sex blessings and marriage. There were two concurrent references about a marriage blessing service intended for use in the Diocese of Wangaratta (the Wangaratta references). There were also two concurrent references about the Clergy Discipline Ordinance 2019 Amending Ordinance 2019 of the Diocese of Newcastle (the Newcastle references).
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References
1 The Appellate Tribunal has seven members, four of whom are lay persons who are current or former lawyers, and three of whom are diocesan bishops.
2 ACA Constitution available at <https://anglican.org.au/wp-content/uploads/2019/12/Constitution-update-011219-for-web.pdf>; Wangaratta Majority and Minority opinions available at <https://anglican.org.au/wp-content/uploads/2020/11/AT-Wangaratta-formatted-11112020FINAL.pdf>, both accessed 14 January 2021. The members in the majority were the Hon Keith Mason AC QC, President, the Hon Richard Refshauge, Deputy President, the Most Rev'd Dr Phillip Aspinall, Professor the Hon Clyde Croft AM SC and the Rt Rev'd Garry Weatherill. The member in the minority was Ms Gillian Davidson. One of the diocesan bishops, Bishop John Parkes of Wangaratta, took no part in the Wangaratta references.
3 Newcastle Majority and Minority opinions available at<https://anglican.org.au/wp-content/uploads/2020/12/AT-Newcastle-formatted-11112020-FINAL.pdf>, accessed 14 January 2021. The same members who heard the Wangaratta references heard the Newcastle references. There was the same majority and minority as in the Wangaratta references.
4 Wangaratta Majority Opinion at para 39.
5 Available at <https://anglican.org.au/wp-content/uploads/2019/06/Canon-Concerning-Services-1992-updated-GS17.pdf>, accessed on 14 January 2021.
6 The 1992 Canon as in force in the Diocese of Wangaratta is available at <https://anglican.org.au/wp-content/uploads/2019/10/1590-Canon-Concerning-Services-in-effect-in-Wangaratta-2019.pdf>, accessed 14 January 2021; emphasis added in quotation.
7 The Wangaratta Regulations are available at <https://anglican.org.au/wp-content/uploads/2019/10/1590-Wangaratta-Legislation-Blessing-Regulation-Bill.pdf>, accessed 14 January 2021.
8 The consolidated written submissions are available at <https://anglican.org.au/wp-content/uploads/2020/01/Appellate-Tribunal-Wangaratta-Submissions.pdf>; the consolidated written submissions in reply are available at <https://anglican.org.au/wp-content/uploads/2020/03/Appellate-Tribunal-%E2%80%93-Wangaratta-%E2%80%93-Submissions-14-February-2020-updated-5-March-2020.pdf>, both accessed 14 January 2021.
9 The submission from the House of Bishops is available at <https://anglican.org.au/wp-content/uploads/2020/11/Response-of-the-House-of-Bishops-to-Four-Questions-posed-by-the-Appellate-Tribunal.pdf>; that from the Board of Assessors is available at<https://anglican.org.au/wp-content/uploads/2020/11/Final-Report-of-Board-of-Assessors-20200901.pdf>, both accessed 14 January 2021.
10 Wangaratta Majority Opinion at para 3. Doctrine Commission, Marriage, Same-Sex Marriage and the Anglican Church of Australia, 2019, <https://anglican.org.au/wp-content/uploads/2019/07/Marriage-Doctrine-Essays-Final.pdf>, accessed 15 January 2021.
11 Wangaratta Majority Opinion at para 7.
12 Ibid at paras 9, 13; Wangaratta Minority Opinion at paras 5–7.
13 Wangaratta Majority Opinion at para 16.
14 Ibid at paras 29–36.
15 Ibid at para 38.
16 Ibidd at paras 45–47, 54, 57.
17 Ibid at para 59.
18 Ibid at paras 65–67.
19 Ibid at para 69.
20 Ibid at para 72.
21 Ibid at para 74.
22 Ibid at paras 78–124.
23 Ibid at para 140.
24 Ibid at para 141.
25 Ibid at para 129.
26 Ibid at para 131.
27 Ibid at paras 134–135.
28 Ibid at paras 138–139.
29 Ibid at para 142.
30 Ibid at para 143.
31 ‘Report of the Appellate Tribunal re the Ordination of Women to the Office of Deacon Canon 1985’, 1987 (1987 Opinion), available at <https://anglican.org.au/wp-content/uploads/2019/06/Ordination-of-Women-to-the-Office-of-Deacon-Canon-1985-.pdf>, accessed 21 August 2021; ‘Report and opinion of the Tribunal on the eleven questions appertaining to the ordination of a woman to the order of priests or the consecration of a woman to the order of bishops’, 1991 (1991 Opinion), available at <https://anglican.org.au/wp-content/uploads/2019/06/Ordination-of-Woman-to-Order-of-Priests-or-to-Order-of-Bishops.pdf>, accessed 14 January 2021.
32 Wangaratta Majority Opinion at paras 145–158.
33 Ibid at para 173.
34 Ibid at para 179.
35 Ibid at para 181.
36 Ibid at para 184.
37 Ibid at paras 185–192.
38 Ibid at paras 193–239.
39 Ibid at paras 240–253.
40 Ibid at para 255.
41 Ibid at paras 257–258.
42 Ibid at para 289. Anglican Communion Legal Advisers’ Network, The Principles of Canon Law Common to the Churches of the Anglican Communion (London, 2008)Google Scholar.
43 Wangaratta Minority Opinion at para 27.
44 Ibid at paras 31–37.
45 Ibid at paras 60–61.
46 Ibid at paras 73, 75, 77.
47 Ibid at para 78.
48 Ibid at paras 87–91.
49 Ibid at para 92–93.
50 Ibid at paras 150–153.
51 Ibid at paras 154–160.
52 Ibid at paras 161–162.
53 Ibid at paras 163–174.
54 Ibid at paras 179–183.
55 Ibid.
56 Available at< https://anglican.org.au/wp-content/uploads/2019/10/Clergy-Discipline-Ordinance-2019.pdf>, accessed on 14 January 2021.
57 Clergy Discipline Ordinance 2019 Amending Ordinance 2019, available at <https://anglican.org.au/wp-content/uploads/2019/10/Clergy-Discipline-Ordinance-2019-Amendment-Ordinance-2019.pdf>, accessed 14 January 2021.
58 The consolidated written submissions are available at <https://anglican.org.au/wp-content/uploads/2020/01/Appellate-Tribunal-Newcastle.pdf>; the consolidated written submissions in reply are available at <https://anglican.org.au/wp-content/uploads/2020/02/Appellate-Tribunal-Newcastle-14-February-2020.pdf>, both accessed 14 January 2021.
59 Alongside the tribunals constituted by the ACA Constitution there is a professional standards regime which has been established to examine the fitness of clergy including bishops and lay leaders to hold office. This complimentary system has been established due to perceived difficulties in taking disciplinary action against clergy in the constitutional tribunals.
60 Available at <https://anglican.org.au/wp-content/uploads/2019/03/Offences_Canon_1962_updated_GS17.pdf>, accessed on 14 January 2021.
61 Newcastle Majority Opinion at para 33.
62 Ibid at paras 34–35.
63 Ibid at para 36.
64 Ibid at para 41.
65 Ibid at para 42.
66 Ibid at para 43.
67 Ibid at para 47.
68 Ibid at paras 49–50.
69 Newcastle Minority Opinion at para 19.
70 Ibid at paras 20, 35, 36, 39–41.
71 Harrington & Ors v Coote (2013) 119 SASR 152 at 156; [2013] SASCFC 154.
72 Newcastle Minority Opinion at paras 44–65.
73 Ibid at para 67.
74 Ibid at para 68.
75 Ibid at para 69.
76 1991 Opinion.
77 Available at <https://anglican.org.au/wp-content/uploads/2019/03/Law_of_the_Church_of_England_Clarification_Canon_1992.pdf>, accessed 14 January 2021.
78 Wangaratta Majority Opinion at para 258.