Reports and Resources
Status of Diocesan Boundaries
(A report from the Legal Officer to the Standing Committee.)
1. At the request of the Standing Committee, this report has been prepared to examine the legal implications of the report on Future Patterns of Ministry (29/96) (the "parish boundaries report"), set out on pages 430-433 of the 1999 Year Book, on the status of diocesan boundaries. This report refers only to some of the relevant legal issues and does not attempt to consider relevant questions of Anglican polity or pastoral issues.
2. The parish boundaries report concludes -
3. This conclusion was reached following a consideration of the rules regulating parish ministry within this Diocese. The direct implications of the parish boundaries report for ministry across diocesan boundaries arise only in respect of those rules which also have general application outside this Diocese. However, having regard to the apparent intention behind Standing Committee's request, I have broadened the scope of this report to consider how ministry within and between the 7 dioceses of the Province of New South Wales is generally regulated.
4. This report does not consider the position outside the Province of New South Wales where different constitutional arrangements may apply.
Licensing by Bishop
6. This part of Canon 36 continues to apply in all dioceses in New South Wales.
7. A number of the other Canons of 1603 address the question of licenced and approved ministry within a diocese.
8. The extent to which Canon 37 continues to operate is unclear. Canon 48 generally ceased to have force in those dioceses, including Sydney, which have adopted the Canon Law Repeal Canon 1989. Canons 49 and 50 ceased to have force in those dioceses, including Sydney, which have adopted the Canon Concerning Services 1992.
Force and Effect of Canons
10. In most, if not all, dioceses the rules contained in the Canons of 1603 regulating and authorising ministry have been replaced or supplemented by rules made by way of ordinance of the diocesan synod. 1902 Constitution
11. The schedule to the Anglican Church of Australia Constitution Act 1961 (the "1961 Constitution") provides that a diocesan synod may make ordinances for the order and good government of the church within the diocese in accordance with the powers conferred upon it by the constitution of such diocese (section 51). For dioceses in the Province of New South Wales, this general constitutional power is found in clause 2(1) of the Schedule to the Anglican Church of Australia Constitutions Act 1902 (the "1902 Constitution").
12. If an ordinance were made by a diocesan synod in reliance only on the powers contained in clause 2(1), it would have effect within and not beyond the geographical boundaries of the diocese.
1917 and 1938 Acts
14. "Church trust property" is defined in section 4 of the 1917 Act to include -
15. The word "purposes" is further defined in section 4 to include religious, educational, cemetery, and all other purposes of the Anglican Church of Australia, whether such purposes are within or beyond the diocese or the state. It is clear therefore that church trust property held on any trust for the purposes of a diocese may be used for those purposes outside the diocese or the state.
16. More specifically, it appears that there is no requirement that church trust property must be geographically located within a diocese in order to be considered church trust property of that diocese. The question is simply whether the trusts attaching to the property are expressed to be for the purposes of that diocese. This position is supported implicitly by section 22 of the 1917 Act which permits, if expedient, the re-allocation of church trust property from one diocese to another diocese in certain circumstances without reference to the location of the property.
Force and Effect of Ordinances
18. In order to identify the extent to which a particular ordinance is binding, it is therefore necessary to identify which property is the property of the diocese for the purposes of that ordinance.
19. If an ordinance was made in reliance only on clause 2(1) of the 1902 Constitution, such an ordinance could be binding only in respect of the church trust property of a diocese located within the diocese since an ordinance made under clause 2(1) has legislative effect only within the diocese. The position is somewhat different for an ordinance made under the 1917 Act or, by extension, the 1938 Act. If, as suggested, a diocese can hold church trust property for its purposes both within and outside the diocese, any management and dealing of such property under the 1917 or 1938 Act should be binding regardless of its location.
Diocesan Tribunal and Bishop
21. The tribunal of a diocese has jurisdiction over members of the clergy who are licensed by the bishop of the diocese or who reside in the diocese. The tribunal is competent to hear and determine charges of breaches of faith, ritual, ceremonial, or discipline and offences specified by any canon, ordinance or rule having force in that diocese (section 54(2)). Acts which may not form the basis for a charge in one diocese may do so in another diocese.
22. Charges may be promoted by a person appointed by the bishop of the diocese or any five adult communicant members of the Church resident within the diocese (section 54(3)).
23. A tribunal shall make such recommendations as it thinks fit. However a tribunal cannot recommend any sentence other than monition, suspension from office, expulsion from office, deprivation of rights and emoluments appertaining to office, or deposition from holy orders. The recommendations of a tribunal are made to the bishop of the diocese concerned (section 60(1)). The bishop to whom the recommendation is made shall give effect to the recommendation however in respect of the recommendation of a sentence the bishop is entitled to mitigate the sentence, suspend its operation or both (section 60(2)).
Force and Effect of Rules
25. It would therefore appear that provided the exercise of the tribunal's jurisdiction is in any way related to church property, its jurisdiction will be binding on all members of the clergy licensed by the bishop of the diocese or resident in that diocese. The jurisdiction of the tribunal does not appear to depend on whether the property is situated within or outside the relevant diocese or whether the property is held on trust for the purposes of that diocese or another diocese.
Ministry Across Diocesan Boundaries
27. However, there are 2 major impediments in conducting ministry across diocesan boundaries. First, because Canon 36 of the Canons of 1603 (and possibly Canon 37) forms part of the consensual compact and are therefore a part of the trusts on which church property is held, the failure to obtain the licence or approval of the bishop in whose diocese the ministry is taking place may constitute a breach of trust. It is arguable that this impediment could be overcome if the trusts of the relevant church property were varied under section 32 of the 1917 Act to exclude the need for licencing or approval of the bishop. The difficulty with this approach is that the first paragraph of section 71(1) of the 1961 Constitution suggests that the consensual compact continues in force in a diocese unless altered under the constitution of the diocese. It may be that any attempt by one diocese to alter the consensual compact in force in another diocese using the 1917 Act would not be effective.
28. Secondly, the diocesan tribunal of the diocese in which the ministry is taking place would presumably have coercive jurisdiction in respect of members of the clergy residing in the diocese in as far as the exercise of such jurisdiction related to church trust property. Unless ministry is carried out only by lay persons or unless the members of clergy were able to reside outside the diocese, it is difficult to see how this jurisdiction could be avoided.
30. As indicated in the parish boundaries report, the operation of section 4 of the 1902 Act and, I would add, section 2 of the 1961 Act means there is -
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