The Anglican Church and its Decision-Making Structures

Abstract

The legal position of an ecclesial body is fraught with inherent tensions. The Anglican Church in New Zealand (officially the Anglican Church in Aotearoa, New Zealand and Polynesia), may be taken to illustrate this. The Church operates under its own laws, yet is also subject to the laws of the land. But both sets of laws reflect the special position of a church. In New Zealand the executive, legislative and judicial branches of Church government of the Anglican Church depend for their authority, at least in part, upon legislation enacted by Parliament (usually private, rather than public, Acts of Parliament), but the influence of secular law extends beyond this formal law (see, for instance, Noel Cox, "Ecclesiastical Jurisdiction in the Church of the Province of Aotearoa, New Zealand and Polynesia" (2001) 6(2) Deakin Law Review 266-284). Although in recent years there has been a conscious reduction in the influence of the secular judiciary (compare, for instance, the Ecclesiastical Jurisdiction Measure 1963 (UK) and the Constitution of the Anglican Church in Aotearoa, New Zealand and Polynesia ("Const."), and the Canons made thereunder (as revised), afterwards "Cans."), it remains to be seen whether this will be effective in distancing the Church tribunals from the influence of the common law. The authority of the Church remains primarily dependent upon secular statutes, and its procedures remain legalistic. Attempts to develop more theologically-based decision-making risks "correction" by secular courts on judicial review (see, for instance, Noel Cox, "The Symbiosis of Secular and Spiritual Influences upon the Judiciary of the Anglican Church in New Zealand" (2004) 9(1) Deakin Law Review 145-182). The origins of legislative power within the Church are both secular and religious, yet both may be seen as reflections of the will of God. Legislative competence, or the legal power to alter and amend laws, may be conferred by the secular power, recognised by the secular power, or independent of the secular power. This depends upon the particular church's relationship with the State. If certain laws affect property, or where the church wishes to avail itself of powers additional to those enjoyed by other voluntary associations, recourse may be made to the State (Gregory v Bishop of Waiapu [1975] 1 NZLR 705). Powers may be conferred by the legislative organs of the State (as by Acts of Parliament, such as the Church of England Empowering Act 1928; Sir Robert Phillimore, The Ecclesiastical Law of the Church of England (2nd ed, 1895) vol II, 1786). As generally with any legal system, it is also possible to dispense with certain laws, in special cases and within certain bounds (Noel Cox, 'Dispensation, Privileges, and the Conferment of Graduate Status: With Special Reference to Lambeth Degrees' (2002-2003) 18(1) Journal of Law and Religion 101-126). The regular legislative authority in the Anglican Church in New Zealand is, however, vested in the General Synod (Const. A4, 5), both in Church law and in applicable parliamentary statutes.