Reference 6 November 2019

PRIMATE’S REFERENCE UNDER SECTION 63 OF THE CONSTITUTION

Referral to the Appellate Tribunal at the request of 25 Members of General Synod

Clergy Discipline Ordinance 2019 Amending Ordinance 2019 (Diocese of Newcastle)

The Synod of the Diocese of Newcastle has passed the Clergy Discipline Ordinance 2019 Amending Ordinance 2019

The amendments have the effect of ensuring that there could be no disciplinary action where:

• a member of the clergy prayed a blessing for a couple who were married under the Marriage Act 1961 who were of the same sex
• a member of the clergy declined to pray a blessing for blessing for a couple who were married under the Marriage Act 1961 who were of the same sex
• a member of the clergy was married under the Marriage Act 1961to a person of the same sex.

The Bishop of Newcastle has not exercised his right to assent or withhold assent to the Ordinance.

On 6 November 2019 the Primate referred to the Appellate Tribunal the following questions at the request of 25 members of the General Synod:

GIVEN THAT

A.  At the next ordinary session of the Synod of the Diocese of Newcastle in October 2019 there is a proposal to pass the Clergy Discipline Ordinance of 1966 Amending Ordinance 2019 (the “Ordinance”).

B.  Section 54(2) of the Constitution of the Anglican Church of Australia (the “Constitution”) provides that a diocesan tribunal shall in respect of a person licensed by the bishop of the diocese, or any other person in holy orders resident in the diocese, have jurisdiction to hear and determine charges of breaches of faith, ritual, ceremonial or discipline and of such offences as may be specified by any canon, ordinance or rule.

C.  Section 54(2A) of the Constitution provides that a diocesan tribunal shall also have and shall always be deemed to have had jurisdiction to hear a charge relating to an offence of unchastity or an offence involving sexual misconduct in respect of a member of clergy if the act of the member of clergy which gave rise to the charge occurred in the diocese or the member of clergy was licensed by the bishop of the diocese or was resident in the diocese within two years before the charge was laid.

D.  Section 54(3) of the Constitution provides that a person appointed by the bishop of a diocese or any five adult communicant members of the Church resident in the diocese may promote a charge against a person licensed by the bishop of the diocese or against any other person in holy orders resident in the diocese in respect of a breach of faith, ritual or ceremonial either before the diocesan tribunal or before the provincial tribunal in its original jurisdiction.  Provided that if a charge be preferred against an incumbent of a parish with reference to an offence alleged to have been committed within that parish the aforesaid communicants shall be bona fide parishioners of that parish.

E.  The further proviso under section 54(3) of the Constitution requires that before any charge relating to faith ritual or ceremonial be heard by the tribunal it shall be referred to a board of enquiry appointed by ordinance of the diocesan synod and may proceed to a hearing if the said board allows it as a charge proper to be heard.

THE FOLLOWING QUESTIONS arising under the Constitution are referred to the Appellate Tribunal.

1. If the Ordinance comes into effect, will the amendment made by clause 3 of the Ordinance prevent the Diocesan Tribunal of the Diocese of Newcastle (the “Diocesan Tribunal”) from hearing and determining under section 54(2) of the Constitution a charge of breach of faith or discipline in respect of a person licensed by the Bishop of the Diocese of Newcastle (the “Bishop”), or any other person in holy orders resident in the Diocese of Newcastle (the “Diocese”), where the act giving rise to the charge relates to such a person marrying or being married to another person of the same sex?
2. If the Ordinance comes into effect, will the amendment made by clause 3 of the Ordinance prevent the Diocesan Tribunal from hearing a charge under section 54(2A) of the Constitution relating to an offence of unchastity or an offence involving sexual misconduct against a member of clergy where the act of the member of clergy which gave rise to the charge relates to the member of clergy marrying or being married to a person of the same sex, in circumstances where the act occurred in the Diocese or the member of clergy was licensed by the Bishop or was resident in the Diocese within two years before the charge was laid?
3. If the Ordinance comes into effect, will the amendment made by clause 3 of the Ordinance prevent the Bishop or any five adult communicant members of this Church resident within the Diocese promoting a charge to the Diocesan Tribunal under section 54(3) of the Constitution against a person licensed by the Bishop or against any other person in holy orders resident in the Diocese alleging a breach of faith, ritual or ceremonial by such a person because that person has participated in a service in which they have pronounced the blessing of a marriage solemnised in accordance with the Marriage Act 1961 in which the persons being married are of the same sex (assuming the first proviso in section 54(3) has been fulfilled)?
4. If the Ordinance comes into effect, will the amendment made by clause 3 of the Ordinance prevent the Bishop or any five adult communicant members of this Church resident within the Diocese promoting a charge to the Provincial Tribunal in its original jurisdiction under section 54(3) of the Constitution against a person licensed by the Bishop or against any other person in holy orders resident in the Diocese alleging a breach of faith, ritual or ceremonial by such a person because that person has participated in a service in which they have pronounced the blessing of a marriage solemnised in accordance with the Marriage Act 1961 in which the persons being married are of the same sex (and assuming the first proviso in section 54(3) has been fulfilled)?
5. If the Ordinance comes into effect, will the amendment made by clause 3 of the Ordinance prevent a board of enquiry, appointed by ordinance of the Synod of the Diocese and in exercise of its function under the second proviso in section 54(3) of the Constitution, from allowing a charge relating to a breach of faith, ritual or ceremonial arising from an act mentioned in 1, 2, 3 or 4 above proceeding to be heard by the Diocesan Tribunal or the Provincial Tribunal in its original jurisdiction as a charge proper to be heard?

Documentation relevant to the matter includes the following:

• Clergy Discipline Ordinance 2019 (Newcastle)
• Clergy Discipline Ordinance 2019 Amendment Ordinance 2019 (Newcastle)

Notification of Proceedings

On 7 November 2019 the Appellate Tribunal issued the Notification of Proceedings and Preliminary Directions.

Notice of Participation

Pursuant to the Appellate Tribunal Rules 1988, the Tribunal gives notice that any diocese, synod, person, class of persons or association claiming to be interested in the questions before the Tribunal should notify that interest and apply for leave to appear or to be represented at any hearing of the matter.

Notices must be given to The Registrar of the Appellate Tribunal on or before 18 December 2019 and supply an address for service, an email address for communication and the names and contact details of an agent for communication.

This matter is to be held concurrently with the Primate’s Reference to the Appellate Tribunal dated 31 October 2019.

All information and documentation relating to both References will be published on the Appellate Tribunal Current Matters page on General Synod website in the section dealing with the Reference of 31 October 2019.