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When a doctrine is not a doctrine: understating the intersection of civil and canon law and the ‘doctrine’ of marriage in the Anglican Church of Australia

Published online by Cambridge University Press:  09 May 2024

Renae Barker
Renae Barker*
Affiliation:
Senior Lecturer at the University of Western Australia Honorary Research Fellow, Centre for Muslim States and Societies Advocate, Anglican Diocese of Bunbury, Australia
*
Email: renae.barker@uwa.edu.au
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Abstract

This article explores the interpretation and application of the term ‘doctrine’ within the Anglican Church of Australia and its implications in Australian civil law, particularly anti-discrimination legislation. It examines the tension between (1) the constitutional definition in the Church's constitution and (2) broader interpretations found in General Synod resolutions. The anxiety evident in the General Synod resolutions underscores ongoing debates within the Church about same-sex marriage and relationships and the application of secular exemptions in anti-discrimination legislation. The article concludes that the civil law definition of the term ‘doctrine’ is wide enough to encompass both the Anglican Church of Australia's constitutional definition and the broader meaning found in General Synod resolutions. Nevertheless, care needs to be taken by the Church to avoid the risk of civil courts being called upon to engage in their own exegesis of scripture, and thereby come to conclusions which are at odds with the avowed beliefs of the Church.

Keywords

Anglican Church of AustraliaChristian Youth Camps Ltd v Cobaw Community Health Services Ltdcivil lawdoctrineexemptionsOV & OW v Members of the Board of the Wesley Mission Council
Type
Article
Information
Ecclesiastical Law Journal , Volume 26 , Issue 2 , May 2024 , pp. 181 - 194
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Copyright
Copyright © Ecclesiastical Law Society 2024

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References

1 Anglican Church of Australia Appellate Tribunal, Primate's References re Wangaratta Blessing Service (11 November 2020), paras 166–181.

2 See Equal Opportunity Act 1984 (WA), s 72(d).

3 D Rogers, ‘Armidale Anglican husband or job apology a cop-out’, QNews (1 October 2022), <https://qnews.com.au/armidale-anglican-husband-or-job-apology-a-cop-out/>, accessed 29 January 2024.

4 P Bell and E Somerville, ‘Congregation rallies behind gay couple who are leaving West Armidale Anglican Church’ ABC News (7 July 2021), <https://www.abc.net.au/news/2021-07-07/gay-couple-leaves-anglican-church-after-dispute-over-marriage/100272680?fbclid=IwAR2C8uUH8dxkgbKUKjHorol59tjzpObKd2z4V8XfgbPdtT2NwlW_VoEfoZ0>, accessed 29 January 2024.

5 R Barker, ‘Behind the split of the Anglican church in Australia over gay marriage’, The Conversation (18 August 2022), <https://theconversation.com/behind-the-split-of-the-anglican-church-in-australia-over-gay-marriage-188893>, accessed 29 January 2024.

6 Emphasis added.

7 OV & OW v Members of the Board of the Wesley Mission Council (2010) 79 NSWLR 606; [2010] NSWCA 155, paras 32 and 50.

8 Anglican Church of Australia, ‘GS Resolution 108/18’ (2022), < https://anglican.org.au/resolutions/exemptions-clauses-for-religious-bodies/>, accessed 29 January 2024; the author is a member of General Synod and was consulted on this motion.

9 Anglican Church of Australia, The Constitution, Canons and Rules of the Anglican Church of Australia (vol 12, 2022), ss 3, 4, 58(1), 74(1), 74(3), 74(3).

10 See Anglican Church of Australia, Alternative Tales of Lessons Canon 1985 (Canon 15, 1985) s 5(3); Anglican Church of Australia, Australian Prayer Book Canon 1977 (Canon 1, 1977), s 5(3); Anglican Church of Australia, Authorised Lay Ministry Canon 1992 (Canon 17, 1992), s 2; Anglican Church of Australia, Canon Concerning Holy Orders 2004 (Canon 10, 2007), ss 5(h), 6(g); Anglican Church of Australia, Canon Concerning Services 1992 (Canon 13, 1998), ss 4(c)(i), 5(3); Anglican Church of Australia, Holy Orders (Reception into Ministry) Canon 2004 (Canon 17, 2007), s 2(2)(f)(i)–(ii); Anglican Church of Australia, Marriage of Divorced Persons Canon 1981 (Canon 7, 1985), s 4; Anglican Church of Australia, Ministry to the Sick Canon 1981 (Canon 5, 1981), s 4(3); Anglican Church of Australia, Oaths Affirmations Declarations and Assents Canon 1992 (Canon 15, 1998), ss 4, 5; Anglican Church of Australia, Order of Deaconesses Canon 1969 (Canon 7, 1969), ss 4(b)(iii), 5; Anglican Church of Australia, Ordination Service for Deacons Canon 1985 (Canon 16, 1985); Anglican Church of Australia, Prayer Book for Australia Canon 1995 (Canon 13, 1995), ss 4, 6(3); Anglican Church of Australia, Reception Canon 1981 (Canon 1, 1985); Anglican Church of Australia, Strategic Issues, Commissions, Task Force and Networks Canon 1998 (Canon 19, 1998).

11 Anglican Church of Australia Appellate Tribunal, Wangaratta (note 1), paras 142–143.

12 Anglican Church of Australia Appellate Tribunal, Report re Ordination of Women to the office of Deaconate Canon 1985 (1987), 49.

13 Ibid, 49; see also 155 (per Handley).

14 Ibid, 8.

15 See Anglican Church of Australia Appellate Tribunal, Wangaratta (note 1), para 141.

16 The Tribunal had given detailed reasons in its 1985 opinion in Anglican Church of Australia Appellate Tribunal, Admission of Women to Holy Orders re Prayer Book Usage (14 August 1985); however, it did not consider the constitutional definition of doctrine in any detail. The reasons given in the 1985 opinion primarily concern the alterability of the use of masculine pronouns in the Ordinal and Book of Common Prayer.

17 See Anglican Church of Australia Appellate Tribunal, Marriage of Divorced Persons and Admission of Women to Holy Orders (8 February 1980); Anglican Church of Australia Appellate Tribunal, Admission of Women to Holy Orders (9 April 1981); Anglican Church of Australia Appellate Tribunal, Admission of Women (note 16). The Appellate Tribunal subsequently gave opinions of the ordination of women in Anglican Church of Australia Appellate Tribunal, Ordination of Women to the Office of Priests Act 1988 of Melbourne Diocese (2 November 1989); Anglican Church of Australia Appellate Tribunal, Ordination of Women to Order of Priests or to Order of Bishops (28 November 1991); Anglican Church of Australia Appellate Tribunal, Reference on Women Bishops (26 September 2007). See also Anglican Church of Australia Appellate Tribunal, Women Deacons and Memberships of GS & Constitution Alteration Act 1987 of Melbourne Diocese (6 June 1989).

18 Anglican Church of Australia Appellate Tribunal, Report of the Appellate Tribunal: Re Ordination to Women to the Office of Deacon Canon 1985 (4 March 1987).

19 Ibid, 13.

20 See Anglican Church of Australia Appellate Tribunal, Wangaratta (note 1), paras 146–147.

21 Anglican Church of Australia Appellate Tribunal, Report re Ordination of Women (note 12), 49.

22 Ibid, 108.

23 Ibid, 109.

24 Ibid, 108.

25 Anglican Church of Australia Appellate Tribunal, Ordination of Women to Order of Priests (note 17).

26 Anglican Church of Australia Appellate Tribunal, Wangaratta (note 1), paras 154–155; see also Anglican Church of Australia Appellate Tribunal, Ordination of Women to Order of Priests’ (note 17), 1.

27 For a detailed summary and discussion of the case see Blake, G, ‘The Constitutionality of Diocesan Legislation Relating to Same-Sex Blessings and Marriage in the Anglican Church of Australia: A Case Note’ (2022) 24 Ecc LJ 209–232Google Scholar.

28 Anglican Church of Australia Appellate Tribunal, Wangaratta (note 1), paras 166–181.

29 Ibid, para 180 (emphasis in original).

30 Ibid, para 174.

31 Ibid, paras 167–174.

32 Ibid, paras 176–177.

33 Anglican Church League, ‘The Thirty Nine Articles: The Articles of Religion’ (London, 1562), <https://acl.asn.au/the-thirty-nine-articles/>, accessed 15 February 2024. The list of specific Canonical Books of the Old and New Testament are excluded.

34 ACA Constitution (note 9), ch XII; see also Anglican Church of Australia Appellate Tribunal, ‘Wangaratta’ (note 1), para 138.

35 ACA Constitution (note 9), ss 4 and 26.

36 Anglican Church of Australia Appellate Tribunal, ‘Wangaratta’ (note 1), para 137.

37 Anglican Church of Australia, ‘Minutes of the Third Day of the Eighteenth General Synod of the Anglican Church of Australia’ (Gold Coast, 11 May 2022), <https://anglican.org.au/wp-content/uploads/2022/06/220511-GS18-Minutes-Day-3.pdf>, accessed 29 January 2024.

38 Ibid; see also Anglican Church of Australia, ‘Minutes of the Second Day of the Eighteenth General Synod of the Anglican Church of Australia’ (Gold Coast, 10 May 2022), <https://anglican.org.au/wp-content/uploads/2022/06/220510-GS18-Minutes-Day-2.pdf>, accessed 29 January 2024.

39 Anglican Church of Australia Appellate Tribunal, Report re Ordination of Women (note 12), 115.

40 Anglican Church of Australia Appellate Tribunal, Wangaratta (note 1), para 244, see also para 142.

41 Ibid, para 142.

42 Quoted in Davis, J, Australian Anglicans and their Constitution (Canberra, 1993), 154–155Google Scholar.

43 Anglican Church of Australia Appellate Tribunal, Wangaratta (note 1), para 144.

44 Anglican Church of Australia, ‘Exemptions Clauses for Religious Bodies’ (R108/18, 2022), para 5.

45 Anglican Church of Australia, ‘Marriage, Same Sex Marriage and the Blessing of Same-Sex Relationships’ (Resolution 48/17, 2017).

46 Anglican Church of Australia, ‘Definition of Marriage’ (R156/10, 2010); Anglican Church of Australia, ‘Definition of Unchastity’ (R81/18, 2022); Anglican Church of Australia, ‘Scottish Episcopal Church’ (R51/17, 2017); Anglican Church of Australia, ‘Sexuality and Gender Relationships’ (R64/04, 2004).

47 Anglican Church of Australia, ‘Commission on Marriage and Divorce’ (R07/69, 1969); Anglican Church of Australia, ‘Family Law Act’ (R60/81, 1981); Anglican Church of Australia, ‘Form of Solemnization of Holy Matrimony’ (R30/73, 1973); Anglican Church of Australia, ‘Marriage Preparation Programmes’ (R52/85, 1985); Anglican Church of Australia, ‘Remarriage of Divorced Persons’ (R10/77, 1977).

48 Anglican Church of Australia, ‘De Facto Relationships not the Equivalent of Marriage’ (R28/87, 1987).

49 Anglican Church of Australia, ‘Civil Celebrations of Marriages’ (R44/69, 1969).

50 Anglican Church of Australia, ‘Clergy Marriage Breakdown’ (R52/92, 1992).

51 Anglican Church of Australia, ‘Sexuality and Gender Relationships’ (R66/14, 2014).

52 Anglican Church of Australia, ‘Doctrine and the Environment’ (R74/07, 2007).

53 See Aroney, N, ‘Can Australian Law better Protect Freedom of Religion?’ (2019) 93 Australian Law Journal 708, 718–719Google Scholar.

54 See Foster, N, ‘Freedom of Religion and Balancing Clauses in Discrimination Legislation’ (2016) 5 Oxford Journal of Law and Religion, 385–430CrossRefGoogle Scholar.

55 Aroney (note 53).

56 See further Barker, R, State and Religion: The Australian Story (Oxford, 2019), 105–109Google Scholar.

57 Sex Discrimination Act 1984 (Cth), ss 37(1)(d); 38(1)–(3).

58 Equal Opportunity Act 2010 (VIC), s 82(2)(a).

59 Anti-Discrimination Act 1977 (NSW), s 56(d).

60 OV & OW v Members of the Board of the Wesley Mission Council [2010] NSWCA 155.

61 Christian Youth Camps Ltd v Cobaw Community Health Services Ltd (2014) 50 VR 256; [2014] VSCA 75.

62 Aroney (note 53), 716.

63 Cobaw, para 176.

64 Wesley Mission, para 42.

65 Ibid, paras 24–35.

66 Wesley Mission, para 33; see also N Foster, ‘Respecting the Dignity of Religious Organisations: When is it Appropriate for Courts to Decide Religious Doctrine’ (2020) 47 University of Western Australia Law Review 175, 216.

67 Cobaw, para 270; see also para 203.

68 Ibid, para 271.

69 Ibid, para 272.

70 Members of the Board of the Wesley Mission Council v OV and OW (No. 2) [2009] NSWADTAP 57 at paras 45–48, 84; and see also the first instance decision Wesley Mission, paras 42–45.

71 Wesley Mission, paras 40–41.

72 Wesley Mission, para 41. Emphasis in original.

73 Cobaw, paras 3–4.

74 Ibid, para 203.

75 Ibid.

76 Ibid, para 206.

77 Ibid, paras 271–279.

78 Ibid, para 278; emphasis added.

79 Ibid, para 284.

80 Deagon, A, ‘The Religious Question Doctrine: Addressing (Secular) Judicial Incompetence’ (2021) 47 Monash University Law Review 60Google Scholar, 82; see also Aroney (note 53), 716.

81 Wesley Mission, para 57.

82 Trkulja v Dorbrijeviv & Anor [2013] VCAT 925.

83 Ibid, para 48.

84 See for example Deagon (note 80); Aroney (note 53); Foster (note 66), 175.

85 For a discussion of diocesanism, see Taylor, A, ‘Diocesanism versus Australia's Royal Commission into Institutional Responses to Child Sexual Abuse’ (2021) 19 Journal of Anglican Studies 166, 168–170CrossRefGoogle Scholar.

86 See ACA Constitution, ss 30 and 51.

87 See contrasting approaches in Doctrine Commission of the Anglican Church of Australia, Marriage, Same-Sex Marriage and the Anglican Church of Australia: Essays from the Doctrine Commission (Mulgrave, 2019)Google Scholar.

88 See Christian Youth Camps Limited v Cobaw Community Health Service Ltd and Ors [2014] HCT Trans 289 (12 December 2014).