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ALTA Law Research Series |
Last Updated: 16 August 2010
THE NATURE OF MINISTERIAL AUTHORITY IN THE ANGLICAN CHURCH IN NEW ZEALAND
Noel Cox
I INTRODUCTION
In New Zealand the legislative and judicial branches of Church government of
the Anglican Church depend for their authority, at least
in part, upon
legislation enacted by
Parliament,[1] but the
influence of secular law extends beyond this formal
law.[2] Although in
recent years there has been a conscious move away from the influence of the
secular judiciary,[3] it
remains to be seen whether this will be effective in distancing the Church
tribunals from the influence of the common law. Its
authority remains primarily
legislation based on secular statutes, and its procedures legalistic. Attempts
to develop more theologically-based
decision-making risks
“correction” by secular courts on judicial
review.[4]
The
legislature of the Church remains influenced by secular models, in this case the
parliamentary model. More importantly, it has
been profoundly influenced by the
political history of New Zealand. The Treaty of Waitangi, which its implication
of an on-going
compact and partnership between Maori and Pakeha (European New
Zealanders), has led to the Church adopting a divided legislature.
This is not
influenced primarily by theological considerations, but by social or political
factors largely external to the Church
itself. The legitimacy of the Church
government – and therefore some of its authority – is derived from
this social compact
expressed in the Constitution of the
Church.[5]
To
continue to use the Montesquieuan
model,[6] the executive
branch of the Church, particularly the ministry, is less obviously influenced by
secular concerns. Its authority has
a more traditional basis – though the
trustees and other lay office-holders
are,[7] in some
respects, subject to closer regulation by secular legislation.
With the
significant exception of the ordination of women priests, the ministry remains
fairly soundly based on the historical episcopal
model, with three holy orders
of bishop, priest and deacon, and little affected by secular models. It is only
occasionally, in their
relation to their parishioners or to their ecclesiastical
superiors, that the secular law has any significant impact upon the authority,
responsibilities, or role of the ministry of the Church. This paper will
consider each order in turn, and assess their authority
and role, in relation to
the sometimes conflicting secular and religious models. It will be shown that
the law in respect of the
executive branch of the Church – the ministry
– is predominantly ecclesiastical. Whilst individual ministers,
dignitaries,
and office holders are subject to the secular laws, their authority
is derived almost exclusively from ecclesiastical sources. These
are sources
which (unlike the judiciary and the legislature), have been subject to little
secular influence, except in respect of
the ordination of women.
II EPISCOPAL MINISTRY: THE OFFICE OF BISHOP
Whilst the judicial aspects of the Church ecclesiology – including the
effect of doctrine on judicial structures and processes
– are important,
they have not held the same pre-eminence as the ministerial in the life of the
Church. The supreme law of
the Church is the salvation of
souls.[8] This requires
the Church to deploy personnel, who are ordered and directed like an army. The
priesthood, whether of bishops, priests,
and deacons, or in some other form, has
been central to church government, as well as to sacerdotal
ministry.[9]
The
three historic orders are bishop, priest, and
deacon.[10] The term
bishop[11] is used
several times in the Septuagint version of the Old Testament. It would naturally
suggest itself as a title for the offices
to which the early Christians accorded
their leadership. However the terms priest and bishop are used almost
interchangeably in Acts
1:20,[12] Acts
20:17,[13] Acts
20:28,[14] and Titus
1:5-8.[15] By the end
of the second century the monarchical episcopacy of apostolic
origins[1] was
generally recognised as the legitimate heir to special powers entrusted to the
apostles by
Christ.[17] Chief
among these was the power to ordain priests and to teach and rule the clergy and
laity of the diocese entrusted to
them.[18]
The
growing liberalism of much theological discourse, from the early nineteenth
century in particular, added new theories about the
origin and nature of the
episcopacy.[19] Many
theologians denied that Christ intended to found any organisation to perpetuate
His teachings.[20] The
church, therefore, was not founded by Christ, but by the apostles or their
successors, and the episcopal form of government is
the fruit of a gradual
evolution – and not the original form of the church as established by
Christ.[21] This
understanding of the formative centuries of the church saw the church as being
composed of democratic groups, which naturally
imitated the organisation of
other contemporary societies as they grew, and which gave direction to the
college of presbyters, of
whom one became
president.[22]
Criticism of episcopacy as the inherent leadership component of the church
was not new in the nineteenth century, however. In the
sixteenth century Calvin
had condemned episcopacy as one of the worst corruptions which had crept into
the church.[23] Though
this theory was not new even then – Aerius had espoused it as early as the
fourth century[24]
– the existence of the episcopacy was critical in the development of the
church, at least until the
Reformation.[25]
Thereafter, whilst it did not survive in all Protestant churches, it has
remained of great importance in the on-going œcumenical
movement,
particularly between the Anglican Communion and the Roman Catholic
Church.[26] In both of
these latter churches the office of bishop remained of fundamental
importance.[27]
In
seeking an acceptable œcumenical understanding and practice of episcopacy,
the Tractarian understanding of apostolic succession
has been largely
superseded.[28] The
absolute necessity of episcopacy in the apostolic succession, understood as the
very essence of the church, has been reconsidered.
An emphasis on a historically
provable unbroken chain of episcopal succession finds less favour today than it
once did.[29]
Continuity here is guaranteed and expressed not by way of succession from
generation to generation and from individual to individual,
but in and through
the convocation of the church of one place, that is, through its eucharistic
structure. It is a continuity of
communities and churches that constitutes and
expresses apostolic succession in this
approach.[30] This
ensures continuity of authority.
The Anglican Communion, being composed of
episcopal churches, did not reject the historic ministry of bishops, priests and
deacons.[31] However,
in spite of this, its relationship with the Roman Catholic Church has not been
easy.[32] In 1896 Pope
Leo XII solemnly declared all Anglican orders absolutely null and utterly
void.[33] The reasons
for that decision – and its implications – are beyond the scope of
this paper,[34] but
more recently the Anglican-Roman Catholic International Commission (ARCIC) has
explored the meaning of episcopacy in an effort
to move beyond this
condemnation.[35] The
theological principle of collegiality attaches to bishops collectively, that by
virtue of their historic and apostolic ministry
they share a collective
responsibility for leadership in the particular
church.[36] On
episcopal authority and synodical government the 1978 Lambeth Conference had
this to say:
All authority comes from God and that which is given to the Church involves all the people of God in responsibility and obedience.[37]
Neither bishop (nor synod) receives authority “by any succession
independent of the
Church”.[38]
“The guardianship of the faith is a collegial responsibility of the
episcopate.”
[39] The authority of the bishop –
and indeed the existence of his (or her) office – is primarily historical,
and dependent
upon the ancient custom of the Church. It bears little relation to
secular equivalents. The scope of authority of a bishop is also
primarily based
upon doctrinal and liturgical texts.
A bishop has considerable powers, in
particular the general powers of
government.[40] He (or
she) is also entitled to canonical
obedience.[41] Within
the Church a bishop has a governmental position incorporating both disciplinary
and controlling elements. This has been ascribed
jurisdictionally, in New
Zealand, to the preamble of the Constitution, which refers to the ordering of
the affairs, the management of the property, and the promotion of the discipline
of the members
of the
Church.[42] Reference
is also made in clause 1 of the Constitution to the Book of Common Prayer
and the manner of the consecration of
bishops.[43] The
Book of Common Prayer (Consecration of Archbishops or Bishops) mentions
the first letter of St Paul to Timothy, chapter 3, that is, a chapter dealing
with
government. In the first verse there is a reference to the government of
the church.[44]
Furthermore, in the charge of the Archbishop (now the Primate) there is a
reference to the admonition to
government.[45]
As
an apostolic church, the Anglican Church in New Zealand recognises the primary
leadership role of the
bishops.[46] They are
also entrusted with a teaching
role.[47] It is the
function of a diocesan bishop to teach, sanctify, and govern his
diocese.[48] A bishop
must be at least 30 years of
age,[49] and is
generally much older upon
appointment.[50] As
elsewhere in the wider Anglican Communion, attempts are made to preserve the
apostolic
succession,[51] but
the understanding of the nature of the office is not necessarily the same as in
the Roman Catholic
Church[52] –
nor, indeed, that of the
Tractarians.[53]
While
a bishop retains his or her personal episcopal status for life, they may
relinquish office. The primate advises the other bishops
of the resignation of a
diocesan bishop.[54]
On a vacancy, episcopal supervision devolves to the primate who appoints a
commissary.[55] The
terms of secular mental health law are used to determine
incapacity,[56] but
otherwise the Church itself regulates episcopal office. The diocesan Electoral
College is presided over by the
primate.[57] It
determines its own procedure as to consultation, nominations, and
decision-making.[58]
There is provision for consultation throughout the diocese in question, and in
particular, with the most local of ecclesiastical
units within it (the
parishes).[59]
The
presiding bishop or archbishop takes responsibility for the consecration of the
bishop-elect.[60] This
requires three bishops including the
primate[61] (or a
commissary). Consecration is followed by enthronement or installation in the
diocese.[62] The new
bishop assents to the doctrine, liturgy, and discipline of the
Church,[63] and
undertakes to comply with the laws of the
Church.[64] The bishop
(or archbishop) is the chief minister in the
diocese.[65] He (or
she[66]) has his
throne or cathedra in his cathedral church. He alone ordains priests,
makes deacons, confirms the baptised, and consecrates land and
buildings.[67] In
accordance with tradition common to other episcopal churches, the appointment of
many diocesan officers also lies in the hands
of the
bishop.[68]
The
vicar-general acts whenever the bishop is outside the diocese or is
incapacitated or resigns or
dead.[69] His duties
are to perform all the spiritual and temporal functions of the bishop, except as
otherwise excluded by the law of the
Church, and to summon and preside at the
Diocesan Synod.[70] In
contrast to England, where the chancellor acts as
vicar-general,[71] in
New Zealand the Vicar-General is in holy orders,
[72] and is commonly an assistant
bishop.[73]
Before
the nexus with the Church of England in England was broken, and probably even
now, bishops in Australia had no ius liturgicum and probably no power to
assent to local customs and thus give them force of
law.[74] The same is
probably true in New Zealand. However, the bishops have the principal leadership
role within the Church. This is primarily
dependent upon canon law – and
the Church’s interpretation of historical authority – disputed by
many Protestant
churches.[75] There is
little secular law which directly affects the episcopal office per se.
However, as they have legal personality, the bishops may sue and be sued in
secular courts, for they are corporations
sole.[76]
Bishops
in New Zealand derive their authority from a traditional apostolic understanding
of episcopal ministry. The Constitution and canons have little to say about this
authority.[77] Secular
legislation and judgments are even less
illuminating.[78] The
High Court case of Gregory v. Bishop of
Waiapu[79]offered
an insight into the attitude of the secular courts to episcopal
authority[80] but, for
the Church, it appears that the bishop is central to the Constitution and
ministry, and therefore there was little need to explain his role and
responsibilities.[81]
The
primate also has a major role – but one which is expressly described.
General Synod elects the
primate.[82] During a
vacancy the primatial functions are assigned to a senior
bishop.[83] The
primate may be removed from
office.[84] Formerly
the primate was also bishop of their own
diocese.[85] From 1998
to 2004 the position of archbishop of New Zealand was discontinued, and the
primate was styled presiding
bishop.[86] The
primate is not now a diocesan
bishop.[87]
The
principles of partnership and bicultural development require the Church to
organise its affairs within each of the
Tikanga[88] of each
partner to the Treaty of
Waitangi.[89] Although
missionary activities long existed among the Maori, the first bishop with a
specific ministry to Maori was only appointed
when the first Bishop of Aotearoa
was consecrated in 1928 (though he served as a bishop only in one diocese, the
Diocese of Waiapu).
A measure of autonomy as “te Pihopatanga o
Aotearoa” (the Bishopric of Aotearoa) was provided in 1978, and new forms
of mission and ministry have since emerged. The Anglican Church in Aotearoa, New
Zealand and Polynesia currently comprises the Maori
dioceses (te Pihopatanga o
Aotearoa), seven dioceses in New Zealand, and the Diocese of Polynesia.
This
is a unique division of authority along might be seen as racial grounds, for the
Maori and Pakeha hierarchies are
parallel.[90] The 1992
Constitution does not draw “racial” distinctions, per se. Rather it
speaks of the “provision of ministry to those who wish to
be ministered to
within Tikanga Maori” or “within Tikanga Pakeha” or
“within the Tikanga of the Diocese of
Polynesia”. Thus ministry is a
matter of cultural preference and territoriality, not a “racial”
definition.[91] This
is a reflection of the political and social foundations of the secular State in
New Zealand, as much as of any narrower theological
considerations.
Although
the three Tikanga each have their own bishops – and in the case of those
of the Pakeha and Maori Tikanga these may
be coterminous – the authority
of the episcopacy is not divided in quite the same manner as that of the
legislative and judicial
branches of the Church. The episcopacy has always had
room for multiple bishops in the one area, particularly where there is a
missionary
Church, and the episcopate is a collegial body. However, it is
unusual for the teaching and leadership role of the bishops to be
divided in
this manner in a permanent Church hierarchy.
As an episcopal church, the role
of bishops, individually and collectively, is vitally important. Their historic
role, however apostolic
succession is understood, leaves little scope for
secular authority to have a significant effect upon the ministerial government
of the Church. The role of the bishop, their teaching and disciplinary
authority, and most aspects of their appointment and retirement,
are dependent
solely upon the constitution and canons, and the tradition and custom of the
Church.
III THE ORDAINED MINISTRY OF PRIESTS AND DEACONS
One of the formularies of the
Church,[92] the New
Zealand Prayer Book, observes that “[t]he provision of an ordained
ministry, to serve the local congregation in the name of Christ and the
universal
Church is one of the responsibilities of the apostolic
Church”.[93]
However, in 1896 Pope Leo XII had declared all Anglican orders null and
void.[94] The main
objection was the alleged deficiency of intention and of form. In the case of
deficiency of intention, the pope believed
that the Anglican rites of ordination
revealed an intention to create a priesthood different from the
“sacrificing” priesthood
of the Roman Catholic
Church.[95] Yet the
Book of Common Prayer contains a strong sacrificial theology, in
particular in the Preface to the 1550, 1552, 1559, and 1662 versions of the
Ordinal. These
were not discussed in Apostolicae
Curae.[96]
Whether
or not the Roman Catholic Church recognises the Anglican orders – and this
is a question yet to be finally resolved
despite Apostolicae
Curae[97] –
the Anglican churches place considerable weight upon episcopal
ordination.[98] In New
Zealand this follows general Anglican Communion standards, with little if any
direct secular influences apparent. Ordination
requires vocation, trial,
examination, and admission to Holy
Orders.[99]
Disqualifications are based on ecclesiastical status, spiritual and moral
suitability, age, and mental or physical
fitness.[100] The
ancient distinction between irregularities and impediments has largely
disappeared.[101]
Few churches list criteria for valid ordination, but the following are generally
accepted: the candidate must be baptised and
confirmed,[102] and
the bishop must be satisfied about the candidate’s spiritual and moral
qualities.[103]
There is a minimum age of 23 years for the diaconate and 24 years for the
priesthood.[104]
Diocesan synods of the dioceses in New Zealand, and the Diocesan Synod of the
Diocese of Polynesia, each make regulations to govern
the appointment and
authorisation of ordained ministers within their own
Tikanga.[105]
The
candidate is subject to careful
examination.[106]
They must have “sufficient knowledge of holy Scripture and of the
doctrine, discipline, and worship” of the
Church.[107] There
are prescribed general educational
qualifications.[108]
Vocational training is conducted principally by St John’s Theological
College in
Auckland.[109]
Before proceeding to ordination the candidate must produce a birth certificate
and
testimonials.[110]
The
rule of English canon law that no person shall be ordained both priest and
deacon on one and the same day is
followed.[111]
Progression to priest is not automatic, and a candidate must be a deacon for at
least a year, or “good cause” must be
shown.[112] The
candidate must also provide a certificate that ecclesiastical office within the
diocese is provided, from which ministry may
be carried
out.[113] If the
candidate comes from another diocese, letters dimissory must be exhibited to the
ordaining bishop from the bishop of the other
diocese.[114] An
announcement must be made, in a congregation in which the candidate is known, of
the forthcoming ordination, in order to receive
evidence of support as well as
an opportunity for people to make allegations that the candidate is impeded from
ordination.[115]
These rules are consistent with generally accepted practice elsewhere in the
Anglican Communion. Self-regulation has not meant significant
departure from
common standards of practice. As in the rest of the Anglican Communion this is
based on consensus and voluntary adherence
to traditional form, rather than
compliance with strict requirements of law.
In order to maintain discipline
within the Church, where State-enforced penal sanctions are not available,
ordinands are bound by
oath to various undertakings. This may be seen in light
of a historic tradition and practice. But it is also consistent with the
secular
legal view of the Church as governed by consensual
compact[116] –
where it is the voluntary membership of the church which alone imposes binding
or mandatory obligations upon
members.[117]
Prior
to and at ordination, the candidate is obliged to make various undertakings, in
the form of declarations, oaths or promises:
assent to the doctrine of the
church; to use only the lawful services of the church; obedience to the bishop;
and compliance with
the laws of the
Church.[118] These
undertakings are required to ensure some measure of orthodoxy, particularly
important in the absence of an ecclesiastical law
which is enforceable per se in
courts able to effectively enforce their
judgements.[119] As
a voluntary association, the Church is competent “to constitute a tribunal
... to decide questions arising out of this association”.
Moreover,
“[s]uch tribunals are not Courts, but their decisions will be binding if
they have acted within the scope of their
authority. They must also have either
observed the prescribed procedure”, or, if there is none, “have
proceeded in a
manner consonant with the principles of justice, and the Civil
Courts will enforce the decision if
necessary”.[120]
But this is only because of the inherent jurisdiction of the High
Court,[121] and not
because of the nature of ecclesiastical law.
In England, canon C15 (as
amended) lays down the declaration of assent which every priest and deacon has
to make, and it is in the
following terms:
I, A B, do so affirm [loyalty to the inheritance of faith of the Church], and accordingly declare my belief in the faith which is revealed in the Holy Scriptures and set forth in the catholic creeds and to which the historic formularies of the Church of England bear witness; and in public prayer and administration of the sacraments, I will use only the forms of service which are authorized or allowed by Canon.[122]
In contrast to the form in England, the form of assent on ordination used in New Zealand includes specific declarations of allegiance to the supreme constitutional authority of the Church – the General Synod.[123] This is perhaps necessary because of the different constitutional position of the Church in New Zealand to that in England. The Church’s constitutional structure is not parallel to that of the State. Although the Church is a perfect society,[124] alongside the State, in the absence of full mutual recognition the former requires greater emphasis upon obligations based upon individual agreement and assent, for it to be fully effective. The form of the declaration of adherence and submission is:
DECLARATION OF ADHERENCE AND SUBMISSION TO THE ANGLICAN CHURCH IN AOTEAROA, NEW ZEALAND AND POLYNESIA.
I, A.B. DO DECLARE my submission to the authority of the General Synod/te Hinota Whanui of this Church established by a Constitution agreed to on the 13th day of June 1857 and as subsequently revised and amended from time to time and to all the provisions of the Constitution from time to time in force to the extent that that authority and those provisions relate to the office of ......................................................../membership of ........................................................................ and to any other office or membership I may at any time hold.
AND I further consent to be bound by all the regulations which may from time to time be issued by the authority of the General Synod/te Hinota Whanui in relation to any such office or membership so long as I hold it;
AND I hereby undertake in consideration of my holding any such office or membership immediately to resign that office or membership together with all the rights and emoluments appertaining thereto whenever I shall be called upon so to do by the General Synod/te Hinota Whanui or by any person or persons lawfully acting under its authority in that behalf.
Given under my hand this day of in the presence of:[125]
This declaration does not include specific reference to the formularies, or to doctrine, and instead is limited to the Constitution and General Synod. This is what might be called a legalistic or jurisdictional form of declaration. In a constitutional arrangement based upon consent, doctrine may only be enforced if obedience to the authority and order of the Church is enforced. Though perhaps difficult ecclesiologically, this is a logical arrangement in a church which is not legally established by the State. In contrast, the declaration of canonical obedience used in New Zealand, which is taken upon appointment to office, states:
I, ..... , being about to be licensed to the office of [name of office] given permission to officiate in [name of diocese or area] authorised for [such a ministry] DO SOLEMNLY MAKE THE FOLLOWING DECLARATION: – I believe in the faith, which is revealed in the Holy Scriptures and set forth in the Catholic Creeds, as this Church has received it and explained it in its Formularies and its authorised worship.
I assent to the Constitution of the Anglican Church in Aotearoa, New Zealand and Polynesia.
I affirm my allegiance to the doctrine to which clause 1 of the Fundamental Provisions and clauses 1 and 2 of Part B of that Constitution bear witness.
In public prayer and administration of the sacraments I will use only the forms of service which are authorised or allowed by lawful authority.
I will uphold the covenant and partnership expressed in the Constitution between Te Pïhopatanga o Aotearoa as a whole and through its constituent parts, and the Dioceses in New Zealand together and severally and through their constituent parts, and the Diocese of Polynesia as a whole and through its constituent parts.
I will pay true and canonical obedience, in all things lawful and honest, to Te Pïhopa o Aotearoa Te Pïhopa ki te [name of Hui Amorangi] The Bishop of [name of Diocese] and to the successors to that Pïhopa/Bishop, and will be obedient to the ecclesiastical laws and regulations in force in the said [Pïhopatanga] [Hui Amorangi area] [name of Diocese]
The foregoing declaration was made and subscribed by the abovenamed on the day of in the year of our Lord – two thousand and –
Signed: –
in the presence of:[126]
This is broadly equivalent to the English form. But it includes a further
declaration of assent to the Constitution of the Church, as well as obedience to
the bishop, ecclesiastical laws, and doctrine. It also contains a declaration of
belief, and
an undertaking to use only lawful forms of service. As the High
Court had found in Gregory v. Bishop of
Waiapu,[127]
the effect of these declarations is to create a particular relationship
between bishop and priest, and thereby reinforce the Church
hierarchy.
Other
aspects of ordination follow traditional Anglican practice. The service of
ordination must take place on a day which the bishop
appoints.[128] It
takes place in the presence of the
congregation.[129]
The consent of the people generally is a pre-condition to
ordination.[130]
Valid ordination (according to liturgical norms) takes place by the consent of
the candidate and by prayer and laying on of hands
by the
bishop:[131]
“At least some of the priests present shall join with the bishop in the
laying on of hands at the ordination of a
priest”.[132]
It
is believed that valid episcopal ordination confers the authority of the Church
upon the ordained
person.[133] Such a
view is consistent with Roman Catholic
teaching[134]
– and that of the traditional churches in general (those which purport to
be part of the universal Catholic
Church).[135]
However, in one significant particular the Anglican Communion – at least
in some provinces – has departed from tradition
– and thus
apparently placed an additional obstacle in the path of church unity. This is in
the ordination of women as priests.
Women were not unknown in clerical office
– as deaconesses – but never as priests (and certainly not as
bishops) until
the twentieth
century.[136]
The Biblical origin of deaconesses is traditionally placed in Romans
16:1[137] and Titus
2:3.[138] They were
recognised by the Councils of Nicaea (325) and Chalcedon
(451).[139] The
ordination of deaconesses resembled that of deacons, but conveyed no sacerdotal
powers or
authority.[140] The
functions of the deaconesses were to assist at the baptism of women, to visit
and minister to the needs of sick and afflicted
women, to act as doorkeepers in
church, and to conduct women to their
seats.[141] The
deacons, in contrast, might perform any sacred office except that of
consecrating the elements and pronouncing
absolution.[142]
The
order of deaconesses was never particularly popular, and was condemned in the
west by the Councils of Orange (441) and Epaene
(517).[143] It fell
into abeyance in both east and west in the middle
ages.[144] In modern
times the order underwent a resurgence, due to changing needs, and changing
perceptions of the role of women in society
generally, and in the church
particularly. In 1833 Lutheran Pastor Thomas Fliedner revived the
order.[145] In 1862
Miss Elizabeth Ferard was ordained – by the Bishop of London – as a
deaconess in the Church of
England.[146] The
order was recognised by the Lambeth Conference of
1897.[147]
Deaconesses were not female deacons, though Hong Kong had a women deacon
– as distinct from deaconesses – in the mid-1940s.
In exceptional
wartime conditions, Bishop Ronald Hall ordained Florence Li Tim Oi for ministry
in the Portuguese colony of Macau.
This action was
controversial,[148]
and was condemned by the 1948 Lambeth
Conference.[149]
This resolution was strongly influenced by the Archbishop of Canterbury and
Yorks’ Commission on the Ministry of Women, Women in the Anglican
Communion
(1935),[150] though
this had found no conclusive biblical authority either for or against the
ordination of women. But the historic church had
never recognised the ordination
of women (except as deaconesses), and the Commission was unwilling to advocate a
position which had
hitherto not been advanced elsewhere in the wider
church.
The ordination of women to the priesthood – with the sacerdotal
authority which that implies – dates from more recent
times. The
ordination of women began in some Anglican provinces in the 1970s, with Hong
Kong leading the way (appropriately enough
perhaps) in 1971, followed by Canada
1976,[151] the
United States of America 1977, and New Zealand in the same
year.[152]
The
change to the Constitution which allowed for the ordination of women within the
province of New Zealand led to a hearing in the appeal tribunal. In November
of
1977 this held that the ordination was not
invalid.[153] The
Tribunal held that the traditional formularies were not a legal obstacle to the
ordination of women as
priests.[154] The
ordination of women priests was able to
proceed.[155] The
consecration of women bishops followed some years later. So far as the Province
of New Zealand was concerned, the Church did
have the authority to ordain women
priests. It followed that these priests enjoyed the full authority of
priesthood. Any women bishops
would also enjoy full authority (including to
ordain other priests, male and female). However this matter cannot be regarded
as settled
in other
provinces.[156]
The stated objections to the ordination of women as priests are based for the most part in ecclesiology rather than sacramental theology.[157] The theological objections may or may not be clear enough to stand permanently in its way. A 1988 declaration on the subject, signed by more than a hundred bishops from different parts of the Anglican Communion, states:
We do not consider that the churches of the Anglican Communion have authority to change the historic tradition of the Church that the Christian ministerial priesthood is male.[158]
According to this declaration, the ordination (or, for many opponents of
women priests, purported ordination) of women will impair
“the wider unity
of the Church” – that is, the developing œcumenical relations
with Roman Catholic and Eastern
Orthodox Churches, who have both expressed
official concern at the ordination of
women.[159] It would
deprive Anglicans of the “commonly accepted ministry” that is one of
the few elements of cohesion in the midst
of their prevailing diversity. It is
not to be done without a “clear œcumenical
consensus”.[160]
Whether
it is acceptable, œcumenically prudent, or indeed possible to validly
ordain women as priests continues to be
debated.[161] The
general Anglican position may be summarised as follows. Scripture and tradition
presents no fundamental objection to the ordination
of
women.[162] By
itself, the witness of the New Testament does not permit a clear settlement of
the question.[163]
Tradition appears to be open to this development because the exclusion of women
from the priestly ministry cannot be proved to be
by “divine
law”.[164] Yet
this position is not one which was reached without considerable uncertainly and
perplexity,[165] not
least in respect of the episcopal authority enjoyed by bishops consecrated by
women bishops, or priests and deacons (and deaconesses)
ordained by women
bishops. After a fifty-year debate, the 1968 Lambeth Conference recognised that
dissent would
continue,[166] and
although many provinces do now ordain women priests, their place in the Anglican
Communion is still not settled.
The position of women priests and bishops in the Roman Catholic Church is
clearer. The Pontifical Biblical Commission reviewed the
attitude of the Roman
Catholic Church to the ordination of women in 1976. In an internal report, which
was however leaked to the
press, the commission concluded that, by itself, the
New Testament did not provide a clear answer one way or the
other.[167] The
Congregation for the Doctrine of the Faith, in its “Declaration on the
Question of the Admission of Women to the Ministerial
Priesthood”
(Inter insigniores), came to a similar
conclusion.[168]
Thus biblical and sacramental theology did not prohibit the ordination of
women.
However, Pope Paul VI, writing to Archbishop Coggan in 1975,
reiterated that there were three very fundamental reasons why women could
not be
ordained as priests – the example recorded in the sacred scriptures of
Christ choosing his apostles only from among
men; the constant practice of the
church, which has imitated Christ in choosing only men; and [the Roman Catholic
Church’s]
living teaching authority which has consistently held that the
exclusion of women from the priesthood is in accordance with God’s
plan
for His church.[169]
The 1994 apostolic letter on priestly ordination, “Ordinatio
sacerdotalis”, repeated the Roman Catholic
view.[170]
Although
the two communions may have reviewed the same evidence, yet they come to quite
different conclusions. Principally, this may
be seen to have depended upon the
differing perspectives of the respective churches. The Anglican and the Roman
Catholic views of
tradition were markedly different. It might even be said that
one allowed that which was not expressly prohibited, the other allowed
only that
which was expressly
allowed.[171] One
fostered diversity, the other enjoined
conformity.[172]
Another view would be that one required compliance, the other merely hoped for
adherence.
The authority of Anglican bishops and priests in general was
challenged by the Roman Catholic Church as they were not being validly
ordained
and consecrated – though not necessarily regarding them as laymen for all
purposes – while the advent of women
priests has caused dissent within the
Anglican Communion itself. Whilst the Constitution of the Church gives the
Anglican Church in New Zealand legal authority to ordain women priests and
deacons, and to consecrate women
bishops, it is clear that this is not
acceptable to all the elements of the Christian church as a whole, and was
unequivocally unacceptable
to the Roman Catholic Church and to the orthodox
churches. Therefore, whilst the internal authority of the Church to so act may
appear
clear, it is actually far from being so.
If the claims of the
Anglican Church in New Zealand to being part of the universal church are to mean
anything, then it must be allowed
that internal laws alone do not suffice to
authorise significant changes to the doctrine or ecclesiology of the Church. The
Anglican
Communion, or the Christian church as a whole (perhaps in General
Council), may have to determine that these changes are allowable.
Anglican
ecclesiology recognises that General Councils may pronounce
doctrine,[173] but
is sceptical of the infallibility of any institution or
council.[174]
The
origins of these differing views of the same evidence can be traced, in part, to
differing views of authority with the church.
The reformed churches may also be
more clearly influenced by notions of equal rights and equal opportunities than
the Roman Catholic
Church, with its stronger tradition. There is perhaps less
division of opinion on the role and function of a minister, once ordained
– though even here the traditional Roman Catholic perception of the
sacerdotal function of the priest must be contrasted with
differing perceptions
in some of the later
churches.[175]
Once appointed, a priest or deacon has certain set responsibilities. The
incumbent must, either himself or by his assistants, provide
his parishioners
with the occasional offices of the church (for example, baptism, marriage, and
burial) and perform divine service
on Sundays and holy
days.[176]
The
Book of Common Prayer also lays down positive injunctions upon clergy.
The rubric requires that all priests and deacons say Morning and Evening Prayers
daily, if not publicly then privately. The Ordinal required the bishop to
address the ordinands thus: “Ye ought to forsake
and set aside (as much as
you may) all worldly cares and studies. We have good hope ... that you have
clearly determined ... to give
yourselves wholly to this office ... so that, as
much as lieth in you, you will apply yourselves wholly to this one thing, and
draw
all your cares and studies this way
...”[177]
Canon
75 of the Canons of 1604 enacted that no “ecclesiastical person”
(which in this context probably means a clergyman)
shall resort “to any
taverns or alehouses” nor board or lodge in them “other than for
their honest
necessities.[178]
Furthermore, they shall not give themselves to any base or servile
labour”.[179]
Canon 76 forbade anyone “admitted as Deacon or Minister” to
“use himself in the course of his life as a laymen,
upon pain of
excommunication”.[180]
The canons made an exception of
teaching.[181] These
private regulations were not mirrored in State laws – which do not
generally distinguish between clerical and lay
status.[182] Since
the adoption of the Constitution and canons of the Anglican Church in New
Zealand in the nineteenth century, these specific provisions have not been in
force in New
Zealand but the canons do preserve some of the rules.
Within the
Church, the deployment of ministers depends upon local rules. Churches either
employ a system of episcopal licensing exclusively
or in addition to appointment
by presentation and institution. In the Church of Aotearoa, New Zealand and
Polynesia, appointment
is not treated by national or provincial law, but rather
by diocesan
law.[183] Informal
written permission to minister may also be
given.[184]
Consistent with general theory and practice, clergymen are regarded in
ecclesiastical and secular law alike as office-holders, not
employees.[185]
Priests
are “called to build up Christ’s Congregation”, to strengthen
the baptised and to lead them as witnesses
to Christ in the
world.[186]
Generally, it is their duty to preach the gospel, particularly through sermons,
and to minister the sacraments and to perform other
offices and rites as are
authorised by the
Church.[187] It is
also their duty to visit the members of the congregation, especially when they
are sick, and to provide opportunities for them
to consult him (or her) for
spiritual counsel and
advice.[188] They
must prepare candidates for baptism, confirmation, and reception, and, with
respect to confirmation and reception, when satisfied
of their fitness, to
present them to the
bishop.[189]
Ministers must not officiate or otherwise minister in another diocese
without the host bishop’s
permission,[190] nor
in another parish or pastorate in their own diocese without the host
minister’s
permission.[191]
They must obey the directions of their
bishop.[192] These
rules are, of course, to ensure discipline and the orderly use of resources. The
formularies have little impact upon the authority
of the ministry except insofar
as only validly ordained ministers may lawfully administer the sacraments of the
Church.
One aspect of the minister’s role differs in New Zealand from
that in England. That is because the Church in New Zealand is
not a State
Church, ministering to everyone in the country who wishes to avail themselves of
its services. In England, everyone living
in the parish is a parishioner
regardless of his or her religious persuasion. A parishioner, whether or not on
the electoral roll
of the parish council, and whether or not a member of the
Church of England, has certain obligations and
rights.[193] The
obligations, to attend church and to communicate, are
unenforced.[194] But
the rights or privileges
remain.[195] A
parishioner has a right to entry to the parish church at the time of public
worship, so long as there is room for him, standing
or
sitting.[196] He or
she has a right to a seat if there is one available, but not a right to any
particular seat (unless one has been given him
by
faculty).[197] He
has a right to the burial of his body in the burial ground of the parish,
regardless of his religion – though not to the
burial service if
unbaptised.[198] In
general, he has a right to be married in the parish church, at any rate if one
of the parties to the marriage has been
baptised.[199] This
is subject however to various qualifications, including that neither party is a
divorcee.[200]
Whatever his religion, as a parishioner he has a right to the ministrations of
the church, so far as they are appropriate to his
condition.[201]
It
might be questioned whether this is also true in New Zealand, given the
different constitutional place held by the Church. However,
the mission of the
Church includes “proclaiming the Gospel of Jesus Christ”; teaching,
baptising and nurturing believers
within eucharistic communities; and responding
to human needs by loving
service.[202] These
would apparently suggest that even non-members of the Church, desirous of the
ministrations of the Church, may have a right
to its services. This is a matter
in which the relationship of Church and State is important. For if the Church
has responsibility
to non-members, then it might expect recompense from the
State.[203] This
relates to the establishment of the Church, rather than to the authority of its
ministers – though as a consequence of
non-establishment (or
quasi-establishment), Church ministers do not have the benefit of formal
recognition by the secular authorities
, and their ministrations are
consequently not State-funded.
The diaconal ministry is treated only in
liturgical
books.[204] Their
role is to proclaim the Word of God; serve the presbyter; care for the poor and
sick; and to baptise when
requested.[205] This
supporting role is common to the major episcopal
churches,[206] and
is but little affected by issues of authority.
There is a general duty on clergy to comply with the laws of the Church, and
a particular duty to obey the lawful directions of
bishops.[207] They
undertake to submit to the rule of the
Church.[208] There
is a duty to undertake to submit to the authority of ecclesiastical
authorities.[209] A
specific promise of canonical obedience is
given.[210]
Obedience to the bishop is not only specifically
required,[211] but
also the “guidance and leadership of [the]
bishop”.[212]
Failure to adhere to these requirements may result in deprivation of office,
though this can also occur at will in certain
situations.[213] The
secular courts will enforce internal Church decisions with respect to offices,
but strictly only as a matter of private contractual
interpretation.[214]
An
ecclesiastical office is lost on the expiry of a predetermined time; on reaching
the age limit defined by law; by resignation;
by transfer; by removal; or by
deprivation,[215]
all of which are subject to employment law – and the Human Rights Act 1993
insofar as it is
appplicable.[216]
Upon relinquishment and reinstatement re-ordination is neither required nor
possible.[217] Canon
76, as well as forbidding priests and deacons from using themselves as laymen,
also provided that they shall not relinquish
their
orders.[218] The
orders are
indelible,[219] so
if a clergyman does relinquish his
orders[220] he does
not cease to be an ordained man (or
woman).[221] He may
therefore resume his status without further
ordination.[222] In
these provisions the Church does not generally depart from Anglican Communion
– or Roman
Catholic[223]
– norms. Nor is it affected or unduly influenced by secular legal norms or
rules.
IV CONCLUSIONS
The authority of Ministerial office in the Church has been little affected by
secular influences. The principal influence has been
the continuing structure of
the historic church. There has been some influence from secular beliefs in
respect of the ordination
of women, influenced as it is by feminism and a belief
in equality, rather than by narrowly ecclesiological considerations. But
generally
authority is that imposed by declaration and assent to theconstitution
and canons, themselves based upon the law of the universal
church.
The status
of clergy depends upon the constitution or rules of the organisation by which
they are engaged and the terms of their
appointment.[224]
Clergymen are office-holders, not
employees,[225] and
they cannot be deprived of office except by due
process.[226] These
principles are established in both religious as well as secular
laws.[227]
As an
episcopally-led church, the Anglican Church in Aotearoa, New Zealand and
Polynesia emphasises the role of the bishops as teachers
and leaders. This is
consistent with the Church’s claim to be apostolic and an inheritor of the
Catholic tradition. Yet social
and political changes have led to a decline in
the relative role of the bishop – in particular their comparative
proliferation
since
1992,[228] and the
temporary loss of the archbishop. Even the adoption of a three-way division into
three Tikanga has not seriously undermined
the role of the bishop, though it has
presented some difficulties with respect to the traditional understanding of
episcopal leadership
and oversight within a diocese. The position of the
episcopacy remains, however, central to authority in the Church, both for its
teaching and its leadership role. In this respect, secular legal notions have
had little effect upon the Church.
[1]Private, rather
than public, Acts of Parliament.
[2]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.
[3]Compare,
for instance, the Ecclesiastical Jurisdiction Measure 1963 (UK) and the
Constitution of the Anglican Church in Aotearoa, New Zealand and Polynesia, and
the Canons made thereunder (as
revised).
[4]See, for
instance, J. Burrows, “Judicial Review and the Church of England”
(1997) University of Wales Cardiff LLM dissertation.
See also 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.
[5]Const.
Preamble. This “implied partnership and bicultural development” has
been recognised only since the late twentieth
century, particularly by the
Church and the courts.
[6]See Charles de
Secondat Baron de Montesquieu, “The Spirit of the Laws”, in Arend
Lijphart (ed.), Parliamentary versus Presidential Government (Oxford
1992), pp.
48-51.
[7]These are
beyond the scope of this paper, because they are primarily secular in nature.
[8]See The Code
of Canon Law: in English Translation prepared by the Canon Law Society of
Great Britain and Ireland (London 1983), Canon 1752.
[9]See Kenneth Kirk
(ed.), The Apostolic Ministry 2nd ed., (London
1957). Congregational churches, however, give a lesser role to the ministry, as
indeed do the Presbyterian
churches.
[10]Title
G canon XIII.1.1; A New Zealand Prayer Book (Wellington 1989), p.
887.
[11]Επισκοποσ
(“overseer”).
[12]“For it
is written in the book of Psalms, Let his habitation be desolate, and let no man
dwell therein: and his bishoprick let
another take” (this and later
quotations are from the King James Version of the Bible). This is
rendered differently in other translations, so that the “bishopric”
becomes “leadership” or some
equivalent
term.
[13]“And
from Miletus he sent to Ephesus, and called the elders of the
church”.
[14]“Take
heed therefore unto yourselves, and to all the flock, over the which the Holy
Ghost hath made you overseers, to feed the
church of God, which he hath
purchased with his own
blood”.
[15]
5For this cause left I thee in Crete, that thou shouldest set in order the things that are wanting, and ordain elders in every city, as I had appointed thee:
6If any be blameless, the husband of one wife, having faithful children not accused of riot or unruly.
7For a bishop must be blameless, as the steward of God; not selfwilled, not soon angry, not given to wine, no striker, not given to filthy lucre;
8But a lover of hospitality, a lover of good men,
sober, just, holy, temperate”.
16At least
as the episcopate is generally understood in the apostolic tradition; James
Coriden, An Introduction to Canon Law (New York, 1991), p. 14; Kenneth
Kirk (ed.), The Apostolic Ministry 2nd ed.
(London
1957).
[17]Dom
Gregory Dix, “The Ministry in the Early Church”, in Kenneth Kirk
(ed.), The Apostolic Ministry 2nd ed. (London
1957), pp.
201-202.
[18]The
charges to preach and teach were presented clearly and forcefully in the
pastoral epistles; 1 Timothy 4; 2 Timothy 4.
[19]See Kenneth
Kirk (ed.), The Apostolic Ministry 2nd ed.
(London 1957).
[20]Particularly
in the reformed and protestant churches.
[21]For a view of
this period, see Dom Gregory Dix, “The Ministry in the Early
Church”, in Kenneth Kirk (ed.), The Apostolic Ministry
2nd ed. (London 1957), pp.
183-304.
[22]The
varying understanding of these early years has also influenced the formation and
structure of “schismatic or non-conforming”
denominations, as
episcopal (authority lodged with bishops), prebyteral (elders), or
congregational (members of local congregations);
Kenneth Kirk (ed.), The
Apostolic Ministry 2nd ed. (London
1957).
[23]Jean
Calvin, Institutes of the Christian Religion ed. by John McNeill, trans.
by Ford Lewis Battles (London
1960).
[24]Richard
Hooker, Of the Laws of Ecclesiastical Polity ed. by Arthur McGrade
(Cambridge 1989), Book VII.
[25]Kenneth Kirk
(ed.), The Apostolic Ministry 2nd ed. (London
1957).
[26]See
R.W. Franklin (ed.), Anglican Orders (Harrisburg 1996).
[27]For example,
in The Code of Canon Law: in English Translation prepared by the Canon
Law Society of Great Britain and Ireland (London 1983), Canon 204 §2:
“This Church, established
and ordered in this world as a society, subsists
in the catholic Church, governed by the successor of Peter and the Bishops in
communion
with him”.
[28]Christopher
Hill, “Bishops: Anglican and Catholic” in Norman Doe, Mark Hill and
Robert Ombres (eds.), English Canon Law (Cardiff 1998), pp.
60-70.
[29]Compare
Kenneth Kirk (ed.), The Apostolic Ministry 2nd
ed. (London 1957) and JD Zizioulas (ed.), Studies in Personhood and the
Church
(1985).
[30]JD
Zizioulas (ed.), Studies in Personhood and the Church (London 1985), p.
177.
[31]“It
is evident unto all men diligently reading holy Scripture and ancient Authors,
that from the Apostles’ time there
have been these Orders of Ministers in
Christ’s Church; Bishops, Priests, and Deacons” – Preface to
the Ordinal
in the Book of Common Prayer (London 1662); A New Zealand
Prayer Book (Wellington 1989), p. 887.
[32]Although the
Bull of Pope Leo XIII Apostolicae Curae constitutes the final papal
condemnation of the validity of Anglican Orders, it was by no means the first.
In 1555, Pope Paul IV issued
a Bull entitled Praeclara Charissimi which
clarified the powers given to Cardinal Pole, sent to England to regularize the
religious position after Queen Mary came to the
throne; Michael Davies, The
Order of Melchiesedech (Kansas City 1979), pp. 154-155.
Later in the
same year, the pope clarified the matter still further by writing:
We declare that it is only those Bishops and Archbishops who were not
ordained and consecrated in the form of the Church that can
not be said to be
duly and rightly ordained and therefore the person promoted by them to these
orders have not received orders but
ought and are bound to receive anew these
said orders from the ordinary.
– Michael Davies, The Order of
Melchiesedech (Kansas City 1979), p.
157.
[33]Pope Leo
XIII, Letters Apostolic of His Holiness Leo XIII ... concerning Anglican
Orders dated: September 13, 1896 (London 1896).
[34]See R.W.
Franklin (ed.), Anglican Orders (London 1996).
[35]Christopher
Hill, “Anglican Orders: An Œcumenical Context” in R.W. Franklin
(ed.), Anglican Orders (London 1996), p.
87.
[36]L.C. 1968,
Res. 55; L.C. 1978, Res. 13; L.C. 1988, Res. 8 [“LC” hereafter
refers to the Lambeth Conferences]. This is because of biblical warrant, for
example, John 21:15-17:
15 So when they had dined,
Jesus saith to Simon Peter, Simon, son of Jonas, lovest thou me more than these?
He saith unto him, Yea,
Lord; thou knowest that I love thee. He saith unto him,
Feed my lambs.
16 He saith to him
again the second time, Simon, son of Jonas, lovest thou me? He saith unto him,
Yea, Lord; thou knowest that I love
thee. He saith unto him, Feed my sheep.
17 He saith unto him the third
time, Simon, son of Jonas, lovest thou me? Peter was grieved because he said
unto him the third time,
Lovest thou me? And he said unto him, Lord, thou
knowest all things; thou knowest that I love thee. Jesus saith unto him, Feed my
sheep.
Luke 22:32: “But I have prayed for thee, that thy faith fail
not: and when thou art converted, strengthen thy brethren”.
It reflects
the nature of the universal church as a communion of churches, or communio
ecclesiarum.
[37]“The
People of God and Ministry” L.C. 1978, pp. 76-77.
[38]“The
People of God and Ministry” L.C. 1978, pp. 76-77.
[39]“The
People of God and Ministry” L.C. 1978, pp. 76-77.
[40]Gregory
v. Bishop of Waiapu [1975] N.Z.L.R. 705, 712 per Beattie J: “In
essence therefore, a bishop has considerable powers, being the general powers of
government. He is
also entitled to canonical obedience. These aspects of his
high office regulate his relationship with the
clergy”.
[41]Gregory
v. Bishop of Waiapu [1975] 1 N.Z.L.R. 705, 709 per Beattie J. This
was because of the declaration of canonical obedience, but also because of the
constitutional position of
the bishop within the body of the Church: “each
priest completes this document [the declaration of canonical obedience] on
his
appointment, and in my opinion such a promise and declaration creates a
particular relationship between a bishop and his priests”.
The bishop
also owes obedience to his canonical
superiors.
[42]Gregory
v. Bishop of Waiapu [1975] 1 N.Z.L.R. 705, 708-709 per Beattie
J.
[43]The 1662
version of which is one of the Formularies of the Church; Const.
B1.
[44]“This
is a true saying, if a man desire the office of a bishop, he desireth a good
work”.
[45]Gregory
v. Bishop of Waiapu [1975] 1 N.Z.L.R. 705, 708-709 per Beattie
J.
[46]Title C
canon I.1; A New Zealand Prayer Book (Wellington 1989), p. 913:
“Bishops are to exercise godly leadership in that part of the Church
committed to their
care”.
[47]A
New Zealand Prayer Book (Wellington 1989), p. 913: “Bishops are
sent to lead by their example in the total ministry and mission of the
Church.”
[48]Title
D canons I.A,
II.
[49]Form and
Manner of Making, Ordaining, and Consecrating of Bishops, Priests, and Deacons;
cf. Act of Uniformity 1662 (14 Chas II c
4)
(Eng).
[50]However,
the Bishop (or Te Pihopa) of Te Tai Tokerau (the Northern Region), the Rt Revd
Tai Kitohi Wiremu Pikaahu, was only 37 years
old when consecrated in 2002;
Newsnet, Anglican Diocese of Wellington (February 2002), available at
<http://www.wn.anglican.org.nz/news_centre/NewsNet/NewsnetFebruary2002.pdf>
at 6 May 2003.
[51]Title G canon
XIII.1.1. Title D canons, interpretation: “‘Bishop’ shall mean
persons who are ordained according
to the Ordination Liturgy of Bishops in the
New Zealand Prayer Book/He Karakia Mihinare o Aotearoa or consecrated according
to the
Form and Manner of Consecrating Bishops in the Book of Common Prayer
1662, or the 1980 Ordinal, or persons who have been ordained
or consecrated
Bishop in other Provinces of the Anglican Communion and who are exercising
episcopal ministry within this
Church”.
[52]R.W.
Franklin (ed.), Anglican Orders (London
1996).
[53]Christopher
Hill, “Bishops: Anglican and Catholic” in Norman Doe, Mark Hill and
Robert Ombres (eds.), English Canon Law (Cardiff 1998), pp.
60-70.
[54]Title A
canon
I.6.2.
[55]Title A
canon
I.2.5.
[56]Title A
canon I.6.5. If the diocesan standing committee has “cause to
believe” that there is incapacity, the primate must
put the written
opinion of three medical practitioners to all the bishops and if they are of the
same opinion the diocese is declared
vacant.
[57]Title A canon
I.2.5.
[58]Title A
canon
I.2.8.
[59]The
Diocesan Electoral College may delegate its right to nominate to any person or
persons whom it may appoint either absolutely or
subject to such conditions as
it may think fit to impose; Title A canon I.2.10. This delegation must, however,
be reported to the
Primate.
[60]Title
A canon I.5.10.
[61]Title G canon
XIII.2.1.
[62]In
accordance with “the Form and Manner of Making, Ordaining, and
Consecrating of Bishops, Priests, and
Deacons”.
[63]Title
A canon
I.5.6.9.
[64]Title
A canon I
schedule.
[65]Title
D canon
II.1.
[66]Dr
Penelope Jamieson was elected 11 November 1989 and consecrated 29 June 1990
Bishop of Dunedin. Pam Darling, “Equally Applicable:”
Conscience and Women’s Ordination in the Episcopal Church, USA,
1976-1994 (New Era 1994).
[67]Generally,
only in accordance with the formularies of the
Church.
[68]Title A
canon II.1.9.
[69]The bishop
“may” appoint a vicar-general; Title A canon
I.8.
[70]Title A
canon I.8.
[71]T
Coningsby, “Chancellor, Vicar-General and Official Principal – a
bundle of offices” (1992) 2(10) Ecclesiastical Law Journal
273.
[72]Canon
A.1.8.
[73]Assistant
bishops, as in England, are usually retired diocesan or suffragan bishops who
continue to exercise episcopal responsibilities
within the diocese.
[74]Standing
Committee of the General Synod of the Church of England in Australia, The
Anglican Church of Australia, Canon Law in Australia (Sydney c.1981), p. 50.
See Wylde v. Attorney-General [1948] HCA 39; (1949) 78 C.L.R. 224
(HCA).
[75]See,
e.g. Kenneth Kirk (ed.), The Apostolic Ministry
2nd ed. (London
1957).
[76]As in
Gregory v. Bishop of Waiapu [1975] 1 N.Z.L.R. 705. For the church
courts generally see 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.
[77]See,
for example, Constn. A.5.
[78]There have
been few reported cases in secular courts in New Zealand which have dealt with
ecclesiastical laws, however broadly defined.
[79] [1975] 1
N.Z.L.R. 705.
[80]Gregory
v. Bishop of Waiapu [1975] 1 N.Z.L.R. 705, 709 per Beattie J:
“each priest completes this document [the declaration of canonical
obedience] on his appointment, and in
my opinion such a promise and declaration
creates a particular relationship between a bishop and his priests”.
His Honour also observed that
The Church structure contemplates a hierarchy and as far as ministers are
concerned, that hierarchy consists of bishops, priests and
deacons. A bishop has
a governmental position incorporating both disciplinary and controlling
elements. The constitution in its preamble
refers to the ordering of the
affairs, the management of the property, and the promotion of the discipline of
the members thereof.
Reference is also made in cl 1 of the constitution to the
Book of Common Prayer and the form and manner of the consecration of bishops.
The Book of Common Prayer (Consecration of Archbishops or Bishops) mentions the
first letter of St Paul to Timothy, chapter 3, verse
1, that is, a chapter
dealing with government and in the first prayer of that form there is a
reference to the government of the
Church. Furthermore, in the charge of the
Archbishop to a bishop there is a reference to the admonition to
government.
– Gregory v. Bishop of Waiapu [1975] 1
N.Z.L.R. 705, 708-709 per Beattie
J.
[81]Whether this
is reasonable is perhaps doubtful – but it would appear to be pragmatic.
[82]Until 1998 the
canons provided that the style should be “Archbishop”. Thereafter
the title “Presiding Bishop”
was the “courtesy title” of
the primate; Canon A.1.7.8. The primate “shall have and may exercise all
the powers
functions and authorities given .... under the Constitution and
Canons”; Canon A.1.7.7. From 2004 the style of Archbishop was
restored.
[83]Const.
C.13.
[84]Const.
A.1.7.5.
[85]The
previous primate was Bishop of Auckland, and so was styled “Right
Reverend”. Although in earlier years diocesan bishops
were known as
“Lord Bishop”, this usage has gone out of favour. The current
Archbishop and Primate, the Most Reverend
Te Whakahuihui Vercoe was previously
Bishop of
Aotearoa.
[86]Title
A canon
I.7.8.
[87]Title A
canon
I.7.8.
[88]These
might be described as racial, or more accurately ethno-cultural groupings
(social organisations, with aspects of language, laws,
principles, and
procedures in common). Generally, see Bruce Briggs, English-Maori:
Maori-English Dictionary (Auckland
1990).
[89]These
are the Crown and Maori, though it is taken now to imply Pakeha society and the
national Government, and those Maori people;
see Hayward, Janine, “In
search of a treaty partner: who, or what, is ‘the Crown?’”
(1995) Victoria University
of Wellington Ph.D. thesis.
[90]That of
Polynesia comprises various islands of the South Pacific, centred on
Fiji.
[91]There are
Pakeha who opt for Tikanga Maori ministry and vice
versa.
[92]That is,
collections of prescribed forms and liturgies.
[93]A New
Zealand Prayer Book (Wellington 1989), p.
887.
[94]Pope
Leo XIII, Letters Apostolic of His Holiness Leo XIII ... concerning Anglican
Orders dated: September 13, 1896 (London 1896). Nullity and voidness are
distinct legal concepts, though usually
conjoined.
[95]Rt
Revd Hugh Montefiore, “Forward” in R.W. Franklin (ed.), Anglican
Orders (London 1996), p. 4.
[96]See
“Saepius Officio” in R.W. Franklin (ed.), Anglican Orders
(London 1996), pp. 138-149.
[97]See R.W.
Franklin (ed.), Anglican Orders (London
1996).
[98]Valid
ordination (according to liturgical norms) takes place by the consent of the
candidate and by prayer and laying on of hands
by the bishop; The Book of
Common Prayer (London 1662), pp. 553 ff, from 1 Timothy 4:14: “Neglect
not the gift that is in thee, which was given thee by prophecy, with
the laying
on of the hands of the presbytery.”
[99]Title G canon
XIII.1.1.
[100]Title
F canon
XIII.3-7.
[101]Norman
Doe, Canon Law in the Anglican Communion (Oxford 1998), p. 129. It is not
found in New Zealand; see the wording of Title F canon
XIII.3-7.
[102]For
New Zealand, see Title G canon
XIII.4.1.
[103]For
New Zealand, see Title G canon XIII.4.2.
[104]Title G
canon XIII.3.23.2 (deacons). Effect of Title G canon XIII.3.2 and Title G canon
XIII.3.4
(priests).
[105]Const.
D.1, E.1, F.1; Title A canon II.1.
[106]Title G
canon
XIII.5.
[107]Title
G canon
XIII.5.
[108]General
Synod Standing Resolutions 1986. These include a requirement that the candidate
must have competence in the Maori
language.
[109]Title
E canons II – V operate alongside the St John’s College Trusts Act
1972 (NZ). In accordance with the three-way division
of the Church, the College
has three constituent colleges, the College of the Southern Cross, Te Rau
Kahikatea, and the College of
the Diocese of Polynesia. Ordination training is
also conducted through the Christchurch-based College House Institute of
Theology,
the Dunedin-based Selwyn College, and Distance Education Formation and
Training Unit.
[110]Title G
canon
XIII.4.1.
[111]“[N]o
person shall be made a deacon and a presbyter on the same day”; Title G
canon
XIII.3.3.
[112]Title
G canon
XIII.5.
[113]No
bishop shall ordain “unless satisfied such person shall be licensed to an
office under the Canons”; Title G canon
XIII.3.5.
[114]Title
G canon
XIII.3.5.
[115]A
certificate must be sent to the bishop; Title G canon
XIII.4.3.
[116]As
in Gregory v. Bishop of Waiapu [1975] 1 N.Z.L.R. 705.
[117]Though
Scandrett v. Dowling [1992] 27 N.S.W.L.R. 483 (NSW) would appear
to support the proposition that church members are associated only on the basis
of a shared faith without legal sanction
for its enforcement; Mr Justice Bruce
McPherson, “The Church as consensual compact, trust and corporation”
(2000) 74 Australian Law Journal 159,
171.
[118]A
New Zealand Prayer Book (Wellington 1989), p.
922.
[119]Noel
Cox, “Ecclesiastical Jurisdiction in the Church of the Province of
Aotearoa, New Zealand and Polynesia” (2001) 6(2)
Deakin Law Review
266-284.
[120]Baldwin
v. Pascoe (1889) 7 N.Z.L.R. 759, citing Long v. Lord Bishop
of Cape Town (1863) 1 Moo. N.S. 411
(PC).
[121]The
High Court has “all judicial jurisdiction which may be necessary to
administer the laws of New Zealand”; Judicature
Act 1908 (NZ), s 16. This
is also recognised by the Church of England Empowering Act 1928 (NZ), s 7:
“Nothing in this Act contained
shall annul, limit, or abridge the inherent
power of the [High Court] to prohibit anything purporting to be done under this
Act on
the ground that it is not a bona fide exercise of the powers conferred by
this Act.” (The reference to the High Court was substituted,
as from 1
April 1980, for a reference to the Supreme Court pursuant to s 12 Judicature
Amendment Act 1979). Taylor v. Attorney-General [1975] 2 N.Z.L.R.
675, 682 per Richmond J adopted this description of the inherent jurisdiction by
Master Jacob, “The Inherent Jurisdiction of the
Court” (1970)
Current Legal Problems 27, 28: “The jurisdiction which is inherent in a
superior court of law is that which enables it to fulfil itself as a court of
law. The juridical basis of this jurisdiction is therefore the authority of the
judiciary to uphold, to protect and to fulfil the
judicial function of
administering justice according to law in a regular, orderly and effective
manner.”
(CA).
[122]The
Canons of the Church of England. Canons ecclesiastical promulgated by the
Convocations of Canterbury and York in 1964 and 1969 (London 1969).
[123]General
Councils are acknowledged by the Anglican Communion to have authority, but there
has not been a generally accepted Council
for many centuries. There is no
Communion-wide legislative body; The Act of Uniformity 1559 (1 Eliz I c 2)
(Eng), which enshrined
the Elizabethan Settlement, endorsed the first four
œcumenical councils – Nicea 325, Constantinople 381, Ephesus 431,
and
Chalcedon 451 as the authorities by which heresy would be defined; Stephen
Platten, Augustine’s Legacy (London 1997), p.
29.
[124]The
church was regarded as a perfect society (societas perfecta), but so was
the State. Each contained in itself all that its nature requires and all that is
needed for the full discharge of its
functions. It is not dependent upon any
other earthly entity; Hubert Box, The Principles of Canon Law (London
1949), p. 8. There could be no conflict between Church and State as each
occupied a distinct field – though they were
always mutually aware of one
another.
[125]Const.
C.15.
[126]Title
A canon II.3 (declaration of assent, adherence and submission to the General
Synod/te Hïnota Whänui). In Gregory v. Bishop of Waiapu
[1975] 1 N.Z.L.R. 705, 709 per Beattie J the Supreme Court (now High Court) held
that “each priest completes this document on his appointment, and
in my
opinion such a promise and declaration creates a particular relationship between
a bishop and his
priests”.
[127] [1975]
1 N.Z.L.R. 705.
[128]A New
Zealand Prayer Book (Wellington 1989), p. 922.
[129]Title G
canon
XIII.3.1.
[130]“The
assent of the people that the candidate should be ordained is an integral part
of the service”; A New Zealand Prayer Book (Wellington 1989), p.
887.
[131]The
Book of Common Prayer (London 1662), pp. 553 ff, from 1 Timothy 4:14:
“Neglect not the gift that is in thee, which was given thee by prophecy,
with
the laying on of the hands of the
presbytery.”
[132]A
New Zealand Prayer Book (Wellington 1989), p.
923.
[133]The
Book of Common Prayer (London 1662).
[134]Leo XIII,
Letters Apostolic of His Holiness Leo XIII ... concerning Anglican Orders
dated: September 13, 1896 (London 1896).
[135]See, e.g.
Kenneth Kirk (ed.), The Apostolic Ministry 2nd
ed. (London 1957).
[136]Sara
Butler, “The ordination of women: A new obstacle to the recognition of
Anglican orders” in R.W. Franklin (ed.), Anglican Orders (London
1996), pp. 96-113. For the English position, see David McLean, “Women
priests – the legal background” (1989) 1(5) Ecclesiastical Law
Journal
15.
[137]“I
commend unto you Phebe our sister, which is a servant of the church which is at
Cenchrea”.
[138]“The
aged women likewise, that they be in behaviour as becometh holiness, not false
accusers, not given to much wine, teachers
of good
things”.
[139]Council
of Nicea, canon 19 in Corpus Iuris Canonici. Decretum, Pars III,
De Cone. Dist. III c. x; Council of Chalcedon, canon 15, in Corpus Iuris
Canonici, Gratian’s Decretum, Pars II, Causa XXVII, Quaest. I,
Canon
xxiij.
[140]Cecilia
Robinson, The Ministry of Deaconesses (2nd ed,
1914), pp.
219-229.
[141]Vincent
Emmanuel Hannon, The Question of Women and the Priesthood (London 1967),
pp.
71-96.
[142]As
described in the ordination service of The Book of Common Prayer (London
1662) and A New Zealand Prayer Book (Wellington
1989).
[143]Canons
26-28, in Carl Joseph von Hefele, History of the Christian Councils
trans. and ed. by H.N. Oxenham (Edinburgh 1871-96), vol III, pp. 163-164; and
canon 21, in Mary McKenna, Women of the Church (New York 1967), p. 131.
[144]Vincent
Emmanuel Hannon, The Question of Women and the Priesthood (London 1967),
pp.
71-96.
[145]Cecilia
Robinson, The Ministry of Deaconesses 2nd ed.
(London 1914).
[146]Cecilia
Robinson, The Ministry of Deaconesses 2nd ed
(London
1914).
[147]L.C.
1897, Ress. 11.
[148]Mrs Oi
voluntarily ceased to exercise her ministry in 1946.
[149]L.C. 1948,
Ress. 115.
[150]Archbishop
of Canterbury and Yorks’ Commission on the Ministry of Women, Women in
the Anglican Communion (London 1935).
[151]W.J.
Hemmerick, “The ordination of women: Canada” (1991) 2 Ecclesiastical
Law Journal 177.
[152]Perry
Butler, “From Early Eighteenth Century to the Present Day” in
Stephen Sykes and John Booty (eds.), The Study of Anglicanism (London
1988), pp. 30, 46-47. Geoffrey Haworth, Anglican deaconesses in New Zealand
(Auckland 1997). See also Glenys Lewis, Kept by the Power
(Christchurch
1999).
[153]In
1974 General Synod approved the ordination of women by one vote, subject to the
confirmation of dioceses. In 1976 the ordination
of women came into effect when
six out of seven dioceses agreed. But the Bill had to lie on the table for a
year to allow for an
appeal; C.W. Haskell, Scripture and the ordination of
women (Wellington
1979).
[154]In
1977, on the 363rd day, an appeal was lodged and a
Tribunal hearing took place in November 1977. This held that ordination was
lawful, and in December
1977 the first five women were ordained as priests,
three in Auckland and two in Waiapu; C.W. Haskell, Scripture and the
ordination of women (Wellington
1979).
[155]Had
the ordination of women been found to be unlawful, but it proceed regardless in
one or more dioceses, the province would have
faced the prospect of schism, as
occurred in South Africa in the 1870s; Merriman v. Williams (1882)
7 App. Cas. 484 (PC); see Anthony Ive, A Candle Burns in Africa (Gillitts
1992). Such a development is also paralleled at provincial level in the more
recent controversy over the election –
with the approval of the American
Anglican Council – of the openly homosexual Gene Robinson by the diocese
of New Hamphire;
James Solheim, Anglican Communion News Service, “Gene
Robinson begins episcopate with call for inclusion”, 13 November
2003,
available at
<http://www.anglicancommunion.org/acns/articles/36/50/acns3672.html>
.
[156]WJ
Hankey, “Canon Law” in Stephen Sykes and John Booty (eds.), The
Study of Anglicanism (London 1988), p.
211.
[157]See
Archbishop of Canterbury and Yorks’ Commission on the Ministry of
Women, Women in the Anglican Communion (London
1935).
[158]Aambit,
The Newsletter of the Association for Apostolic Ministry, No 3, July
1988.
[159]Jan
Cardinal Willebrands, “Women Priests and Œcumenism” (9 October
1975) 5 Origins 241, 243-44, at 243.
[160]See Joseph
Cardinal Bernardin, “Discouraging Unreasonable Hopes” (16 October
1975) 5 Origins 257,
259-260.
[161]Perry
Butler, “From Early Eighteenth Century to the Present Day” in
Stephen Sykes and John Booty (eds.), The Study of Anglicanism (London
1988), pp. 30,
47.
[162]Archbishop
of Canterbury and Yorks’ Commission on the Ministry of Women, Women in
the Anglican Communion (London 1935).
[163]This is
consistent with the Roman Catholic Church’s view: (1 July 1976) 6 Origins
92-96; (3 February 1977) 6 Origins 517, 519-524;
(1977) 69 Acta Apostolicae
Sedis
98-116.
[164]Archbishop
Runcie of Canterbury to Cardinal Willebrands, President of the Secretariat for
Promoting Christian Unity, “Women’s
Ordination and the Progress of
Œcumenism” (17 July 1986) 16 Origins 153,
155-160.
[165]Jacqueline
Field-Bibb, Women Toward Priesthood (Cambridge 1991), pp.
67-75.
[166]Reg
No 34 in Lambeth Conference 1968: Resolutions and Reports (London 1968), p.
39.
[167](1 July
1976) 6 Origins
92-96.
[168](3
February 1977) 6 Origins 517, 519-524; (1977) 69 Acta Apostolicae Sedis
98-116.
[169]“Letters
Exchanged by Pope and Anglican Leader” (12 August 1976) 6 Origins 129,
131-132.
[170]“Apostolic
letter on ordination and women” (9 June 1994) 24 Origins 49,
51-52.
[171]See,
generally, Sara Butler, “The ordination of women: A new obstacle to the
recognition of Anglican orders” in R.W. Franklin
(ed.), Anglican Orders
(London 1996), pp. 96-113.
[172]Anglican
encouragement of diversity again threatens the loose unity of the communion,
with the present controversy which met the proposed
consecration of Jeffrey
John, a homosexual, as Bishop of Reading; Ruth Gledhill and Helen Rumbelow,
“Archbishops urge gay bishop
to stand down”, The Times
(London), 24 June
2003.
[173]The
Act of Uniformity 1559 (1 Eliz I c 2) (Eng), which enshrined the Elizabethan
Settlement, endorsed the first four œcumenical
council – Nicea 325,
Constantinople 381, Ephesus 431, and Chalcedon 451 as the authorities by which
heresy would be defined;
Stephen Platten, Augustine’s Legacy
(London 1997), p.
29.
[174]Edward
Norman, “Authority in the Anglican Communion” (1998) Ecclesiastical
Law Society Lecture given during the Lambeth
Conference 1998, transcribed by the
Society of Archbishop Justus; Article 21 of the Thirty-Nine Articles of
Religion, enacted in 1562, and confirmed in 1571 by the Subscription
(Thirty-Nine Articles) Act 1571 (13 Eliz I c 12)
(Eng).
[175]See
Michael Davies, The Order of Melchiesedech (Kansas City 1979); Thomas
Torrance, Royal Priesthood (Edinburgh
1993).
[176]Title
D canon
II.A.
[177]The
Book of Common Prayer (London 1662).
[178]J.V.
Bullard (ed.), Constitutions and Canons Ecclesiastical 1604 (London
1934).
[179]J.V.
Bullard (ed.), Constitutions and Canons Ecclesiastical 1604 (London
1934).
[180]This,
perhaps the most severe penalty still remaining to church authorities, can be
seen in a rudimentary form in Matthew 18:17 (“And
if he shall neglect to
hear them, tell it unto the church: but if he neglect to hear the church, let
him be unto thee as an heathen
man and a publican”); 1 Corinthians 5,
1-5:
1It is reported commonly that there is fornication among you, and such fornication as is not so much as named among the Gentiles, that one should have his father’s wife.
2And ye are puffed up, and have not rather mourned, that he that hath done this deed might be taken away from among you.
3For I verily, as absent in body, but present in spirit, have judged already, as though I were present, concerning him that hath so done this deed,
4In the name of our Lord Jesus Christ, when ye are gathered together, and my spirit, with the power of our Lord Jesus Christ,
5To deliver such an one unto Satan for the destruction of the flesh, that the spirit may be saved in the day of the Lord Jesus.
[181]Canons
77 and 78 of 1604; J.V. Bullard (ed.), Constitutions and Canons
Ecclesiastical 1604 (London 1934). Rather than being disqualified for
office, college fellows at the University of Oxford were required to be in holy
orders until the mid-nineteenth century.
[182]Particular
problems have arisen in respect of members of religious orders; see for example,
Allcard v. Skinner (1887) All E.R. Rep. 90 [conflict of canonical
obedience and the common law contractual doctrine of undue influence].
[183]Title A
canon II.1.
[184]Const.
C.15.
[185]Title
A canon II.1.1; Legal Advisory Commission, Legal Opinions Concerning the
Church of England (London 1994); Mabon v. Conference of the
Methodist Church of New Zealand [1998] NZCA 244; [1998]
3 N.Z.L.R. 513
(CA).
[186]A
New Zealand Prayer Book (Wellington 1989), p.
901.
[187]Title D
canon
II.A.5.
[188]Title
D canon
II.A.12.6
[189]Title
D canon
II.A.12.3.
[190]Title
A canon II.2; cf. English Canon C.8
(2).
[191]Title A
canon
II.2.
[192]Gregory
v. Bishop of Waiapu [1975] 1 N.Z.L.R. 705, 708-709; declaration of
canonical obedience.
[193]See, for
example, their right to burial; Burial of Persons Drowned at Sea Act 1808
(48 Geo III c 75) (UK).
[194]Act of
Uniformity 1551 (5 & 6 Edw VI c 1) (Eng); Religious Disabilities Act 1846 (9
& 10 Vict c 59) (UK) [to attend the parish
church on all Sundays and holy
days unless he has a reasonable excuse for his absence or unless he dissents
from the doctrine and
worship of the church and usually attends some place of
worship other than that of the established church]; Rubric at the end of
the
service for Holy Communion in the Book of Common Prayer; Rubric at the
end of the Order of Confirmation in the Book of Common Prayer [to
communicate at least three times a year, of which Easter shall be one –
provided that he be confirmed or ready and desirous
to be
confirmed].
[195]Bishop
Say believed that the important aspect of the establishment was that the Church
of England’s parishes “extend over
every square yard of England and
that every citizen resident in a parish, has, regardless of their own religious
commitment or lack
of it, a rightful claim upon their parish priest”;
David Say, “Towards 2000: Church and State Relations” (1990-1992)
2(8) Ecclesiastical Law Journal 152,
153.
[196]Reynolds
v. Monckton (1841) 2 M. & R.
384.
[197]Reynolds
v. Monckton (1841) 2 M. & R.
384.
[198]Or
suicides or excommunicates; first rubric of the Burial Office; Cooper
v. Dodd (1850) 7 Notes of Cases 514. In practice, the former
disqualification was often avoided by the expedient of a coroner finding that a
suicide had taken his life
whilst temporarily
insane.
[199]General
Synod, An Honourable Estate (London
1988).
[200]General
Synod, An Honourable Estate (London 1988). See English Canons
B.30-36.
[201]Timothy
Briden and Brian Hanson, Moore’s Introduction to English Canon Law
3rd ed. (London 1992)
35.
[202]Const.
Preamble.
[203]Indeed,
charitable status, and certain taxation and other financial advantages shared by
churches, may be partially intended for this
purpose; see Sir Ivor Richardson,
Religion and the Law (Wellington
1962).
[204]A
New Zealand Prayer Book (Wellington 1989), p.
891.
[205]Title D
canon I.A.12.3.
[206]Though
there is some difference over the permanent diaconate.
[207]Title A
canon II.3; Const.
C.15.
[208]“Will
you accept the order and discipline of this Church?”; A New Zealand
Prayer Book (Wellington 1989), pp. 894,
904.
[209]They
must make “a declaration of adherence and submission to the authority of
the General Synod”; Const.
C.15.
[210]“I
will pay true and canonical obedience in all things lawful and honest”;
Title A canon
II.3.
[211]See
the interpretation of Beattie J in Gregory v. Bishop of Waiapu
[1975] 1 N.Z.L.R. 705, 708-709, where the bishop’s power of government is
explained in constitutional
terms.
[212]A
New Zealand Prayer Book (Wellington 1989), pp. 894,
904.
[213]Gregory
v. Bishop of Waiapu [1975] 1 N.Z.L.R. 705, 717; applying Ridge
v. Baldwin [1963] UKHL 2; [1964] A.C. 40, 45; Durayappah v. Fernando
[1967] 2 A.C. 337; Lower Hutt City Council v. Bank [1974] 1
N.Z.L.R.
545.
[214]Gregory
v. Bishop of Waiapu [1975] 1 N.Z.L.R.
705.
[215]Gregory
v. Bishop of Waiapu [1975] 1 N.Z.L.R. 705. Cf. The Code of Canon Law:
in English Translation prepared by the Canon Law Society of Great Britain
and Ireland (London 1983), Canon 184
§1.
[216]Donna
Buckingham, “Working for God: Contract or Calling” (1994) 24 VUWLR
209.
[217]“No
person who has been admitted to the order of Bishop, Priest, or Deacon can ever
be divested of the character of that order;
Title G canon
XIII.8.1.
[218]J.V.
Bullard (ed.), Constitutions and Canons Ecclesiastical 1604 (London
1934).
[219]Barnes
v. Shore [1846] EngR 97; (1846) 8 Q.B. 640, 660, 671 per Lord
Denman.
[220]Which
he may do under Title G canon
XIII.8.
[221]Title
G canon
XIII.8.1.
[222]Title
G canon
XIII.8.1.
[223]The
Code of Canon Law: in English Translation prepared by the Canon Law Society
of Great Britain and Ireland (London 1983), Canon
290.
[224]Mabon
v. Conference of the Methodist Church of New Zealand [1998] NZCA 244; [1998]
3 N.Z.L.R. 513 (CA), where a Methodist minister, who had been dismissed from his
parish, brought a personal grievance claim. The Employment Court held
that the
minister was not an employee and the Court of Appeal upheld that
finding.
[225]Legal
Advisory Commission, Legal Opinions Concerning the Church of England
(London 1994); Mabon v. Conference of the Methodist Church of New
Zealand [1998] NZCA 244; [1998]
3 N.Z.L.R. 513 (CA).
[226]Gregory
v. Bishop of Waiapu [1975] 1 N.Z.L.R. 705, 711; Dodwell v.
Bishop of Wellington (1886) 5 N.Z.L.R. 263,
266.
[227]Human
Rights Act 1993 (NZ); Employment Relations Act 2000 (NZ); Donna Buckingham,
“Working for God: Contract or Calling”
(1994) 24 VUWLR
209.
[228]Through
the separate Maori hierarchy.
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