Harrington and Ors v Coote and Anor [2013] SASCFC 154 (Supreme Court of South Australia, Full Court,

Kourakis CJ, Gray, Peek JJ, 23 December 2013) This case concerned the internal affairs of an incorporated Anglican Church diocese in South Australia. The plaintiffs were five members of the Professional Standards Committee of the Anglican Diocese of Murray, the administrator of the Diocese of Murray, and the Synod of the Diocese of Murray, an incorporated body (the Synod). The first defendant was a licensed priest of the Anglican Church accused of sexual misconduct between 1994 and 1998. The complaint against the first defendant had been heard before the Professional Standards Committee (the Committee) of the Diocese of Murray (the Diocese). Questions as to the fitness of the first defendant to be a priest were then put to the Professional Standards Board of the Diocese (the Board), and the first defendant was suspended from the clergy. The same decision was made when the matter was brought before a freshly constituted Board. The defendant sought a review of the suspension decision. This review was conducted by the second defendant, who found that although the Professional Standards Ordinance 2007 (the Ordinance) under which the Board had made its decision was itself valid, it did not authorise the enquiry which had been undertaken by the Board. On appeal, issues of the justiciability of the matter, and the validity of the Ordinance and its consistency with the Constitution of the Anglican Church of Australia, were in question. Was the matter justiciable? Chief Justice Kourakis (with whom Peek J agreed) held that the matter was justiciable on two grounds. Firstly, the Synod was incorporated under the provisions of the Associations Incorporation Act 1985 (SA) (the Act). Section 23(1) of the Act provides that the rules of an association bind the association and its members as if there were a contract between the association and its members. His Honour held that rules regulating the conduct and activities of parish priests of the Diocese were the very type of rules contemplated by section 23(1) of the Act. Secondly, the Anglican Church of Australia is an unincorporated association recognised by Acts of Australian States giving legal force to the National Constitution of the Anglican Church (the National Constitution) and any rules made under it. The Murray Synod is a construct of the National Constitution. The Synod therefore had dual force both as an incorporated association under the Act, and as an organisation established under the National Constitution. However, not all the members of the parishes of the Diocese were members of the Synod. In particular, the Professional Standards Board and its members were not members of the Synod. As an unincorporated association, the constituting documents and rules of the Anglican Church are a consensual compact rather than a contract, as had been established by the High Courts decision in Cameron v Hogan [1934] HCA 24. This had been dealt with in relation to the Anglican Church in Scandrett v Dowling (1992) NSWLR 483 at 527. In that case, Priestley JA had traced the provenance of the term consensual compact in relation to the Anglican Church. He had found that the term originated in 1849 when the Anglican Church hierarchy in New South Wales recommended that the Church be established on that basis, since there was no established Church (as there was in England) in Australia. Thus, the nature of the consensual compact was one of shared faith, and religious, spiritual and mystical ideas (at 554), not common law contract. However, when matters of property were involved the consensual compact had the same effect as a common law contract. The judgements in Scandrett v Dowling made clear that although there was only a consensual compact underlying the Anglican Church, some at least of its rules were capable of legal enforcement: see in particular the judgement of Mahoney JA at 505. Were the particular rules in this case of that kind, and so justiciable? Kourakis CJ considered the effect of section 3 of the Anglican

Church of Australia Constitution Act 1961 (SA) (ACAC), which provides that the constitution, canons and rules of the Church in South Australia are binding on the bishops, clergy and laity of the Church in South Australia in matters relating to property. He held that matters of property included the right to appoint a member of clergy to a position with a benefice or salary (at [17]), and the licence held by a member of the clergy to conduct spiritual ceremonies on the property of the Church (at [21]). Therefore, these matters were within section 3 of ACAC. In addition, the National Constitution was appended to section 3 as a schedule, and was given legal effect by it (at [22]): It follows that s 3 of ACAC (SA) gives legal effect to the Anglican National Constitution, the constitution of Murray Diocese and the ordinances, canons and rules made under it in so far as they govern those aspects of Mr Cootes licences as a parish priest. Those instruments legally bind Mr Coote...and the incumbents of the responsible offices of the Anglican Church...in all matters affecting Mr Cootes licence and authority as rector of the parish.... His Honour also held that there was a contractual issue bound up in the fact that the licence held by the plaintiff carried with it a stipend, the loss of which would affect his financial well-being. Therefore, the issues were ones of property and the matter was thus justiciable on that basis. Was there inconsistency between the Professional Standards Ordinance 2007 and the National Constitution? The main issue here was whether the tribunal structure established under the National Constitution (at Chapter IX) was exclusive. His Honour held that there was no indication in the National Constitution that it was intended to deny diocesan synods of the Church the authority to establish such extra tribunals as might be thought necessary to exercise control over clergy. Although Chapter IX of the National Constitution maintained the tribunal structure of the Church as a bishops court, there was no indication that a narrow interpretation of this notion was required. Bishops had many and complex duties in the modern diocese, and such extra structures and procedures as were needed should be allowed to develop. His Honour said that the Professional Standards Ordinance 2007 was a good example of a desirable additional procedure. Did the Professional Standards Ordinance 2007 authorise the enquiry which had taken place in this case? The first defendant had argued that examination of the matters for which he had been suspended was time barred. After considering the history of the ordinances and canons preceding the Professional Standards Ordinance 2007 (the 2007 Ordinance) which had ultimately abolished time bars, His Honour found that it clearly conferred an unlimited authority to examine conduct whenever occurring affecting the fitness of members of the clergy to hold office. Therefore, there was no time bar. The judgement of Gray J Gray J agreed that section 23(1) of the Act applied to the Diocesan Synod. The first defendant, as a member of the Synod, was bound by its rules, including the Professional Standards Ordinance 2007. The rules were deemed a contract under the Act, and as such enlivened the jurisdiction of the court. His Honour held that this was sufficient in itself, without any necessity to consider the nature of the consensual compact underlying the Church. However, if he had been asked to do so he held that the effect under a consensual compact would have been the same (at [141]): ...it may be concluded that the Anglican Church of Australia is a voluntary association bound together by a consensual compact, that the rights of its members inter se depend on the terms and conditions of the compact, and that the terms and conditions constitute a contract

in which every member is bound to the whole body and to every other member to act in accordance with its provisions. On the validity of the 2007 Ordinance, His Honour held that the powers of the Board were administrative in nature. It conducted investigations about fitness of clergy to hold office but did not establish offences, or seek to punish. Chapter IX of the National Constitution was not exhaustive in its coverage of disciplinary matters. The power contained within Chapter IX could be shared with diocesan synods it was concurrent. The first defendant had argued that the disciplinary powers in Chapter IX were exclusive to the national church, but this was not so. There was no direct or implied conflict between the National Constitution and the 2007 Ordinance. Therefore, the 2007 Ordinance was a valid legislative enactment under the Murray Synods powers. Both judges agreed that the decision of the independent reviewer (the second defendant in this case) was seriously flawed, and was not in any way binding on the parties. Therefore, the decision to suspend the first defendant from the clergy was upheld as a valid decision of the Board. The case may be viewed at: http://www.austlii.edu.au/au/cases/sa/SASCFC/2013/154.html Implications of this case This case demonstrated that parts of an unincorporated body which are incorporated associations are bound by the statutory rules contained in the relevant Associations Incorporations Act of each State. In this case, although the Anglican Church in Australia is an unincorporated body bound only by the traditional consensual compact, this did not affec t the contractual nature of rules made under statute by its incorporated components.