Appellate Tribunal Prepares to Issue Critical Opinion

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Keen observers of the Anglican Church of Australia will be anxiously watching for any sign of an opinion being issued by the Appellate Tribunal. The Tribunal is the Anglican Church of Australia’s equivalent of a highest court, albeit with no actual power to rule but only to offer opinions. Nevertheless, in recent years it has been treated more and more by some as the Anglican equivalent of a Supreme Court, particularly since part of it’s role is to,

…deal with references in any matter relating to the powers of General Synod and involving questions of faith, ritual, ceremonial or discipline matter in the Church, as specified by relevant sections of the Constitution of the Anglican Church of Australia.

Appellate Tribunal website

The Tribunal is currently in the latter stages of considering a number of referrals, all centring around the ongoing debate about sexual ethics and the response to a national change in the Marriage Act to include homosexual couples. All four referrals being considered (all listed on the Tribunal’s website) grapple with the central question of whether the blessing of same-sex marriage is compatible with the Constitution of the Anglican Church of Australia.

Two of the references refer to the now well-known motion passed at the last Wangaratta Synod to allow for a liturgy that blesses those who have entered into a same-sex marriage.

The other two references relate to an ordinance related to a similar liturgy, the Newcastle Diocese’s Clergy Discipline Ordinance 2019 Amending Ordinance 2019. Newcastle Diocese had passed a motion approving a liturgy identical to that passed in Wangaratta but added to it their ordinance which seeks to exempt any clergy officiating over such a liturgy from any national disciplinary processes that may arise.

The Tribunal itself is made up of seven members; three diocesan bishops and four lay members who are usually recognised legal professionals. It is worth noting that there has been some disquiet over the continued membership of the Tribunal of Justice Croft who is also Chancellor of the Diocese of Wangaratta. While Justice Croft maintains that he has been scrupulous in making sure he has had no involvement in the bill in the question (and there is no reason to doubt him nor any suggestion of impartiality), it still doesn’t appear to be optimal that the chief legal officer of the diocese at the centre of the controversy should sit on the Tribunal that is considering that same diocese’s actions.

A Complicated Process

The Tribunal’s process has been a fascinating and complicated one. For the purposes of this article I’ll concentrate on the Primate’s submission re Wangaratta. The vast majority of submissions have been opposed to any recognition that the moves by Wangaratta and Newcastle are consistent with the Constitution of the Anglican Church of Australia. Of the four submissions in favour, it is notable that there are one from both the Bishop of Newcastle Peter Stuart (to be expected, since he is a clear driver of the motion put before his own synod) and also the Archbishop of Perth, Kay Goldsworthy.

Covid restrictions have obviously made the Tribunal’s work more difficult.

The key question that the Tribunal will have to decide upon is whether same-sex relationships and marriages are consistent with the Constitution. The Constitution gives the national body…

…plenary authority at its own discretion to make statements as to the faith ritual ceremonial or discipline of this Church and to order its forms of worship and rules of discipline and to alter or revise such statements, forms and rules, provided that all such statements, forms, rules or alteration or revision thereof are consistent with the Fundamental Declarations contained herein and are made as prescribed by this Constitution.

Provided, and it is hereby further declared, that the above-named Book of Common Prayer, together with the Thirty-nine Articles, be regarded as the authorised standard of worship and doctrine in this Church, and no alteration in or permitted variations from the services or Articles therein contained shall contravene any principle of doctrine or worship laid down in such standard.

Section 4. Constitution of the Anglican Church of Australia. understands that the key questions that the Tribunal will consider is how broad or narrow to take the phrase “the … Book of Common Prayer, together with the Thirty-nine Articles, be regarded as the authorised standard of worship and doctrine in this Church” and also how wide the description “necessary to salvation” should be understood in the Constitution’s Fundamental Declaration,

This Church receives all the canonical scriptures of the Old and New Testaments as being the ultimate rule and standard of faith given by inspiration of God and containing all things necessary for salvation.

Section 2. Constitution of the Anglican Church of Australia.

Do the Scriptures speak clearly on same-sex marriage and, if they do, is what they say “necessary for salvation”?

Help for the Tribunal

The Tribunal’s remit is legal questions, but this matter involves an intricate connection of both the legal and the theological. What is the Tribunal to do if they need to consider matters of theology? The mechanism available to them (under s.58 of the Constitution) is to ask questions of two bodies: the House of Bishops and a group called the Board of Assessors (who are elected by the General Synod). The most recent round of General Synod elections produced an overwhelmingly conservative group of Assessors. Four questions were sent to both bodies and replies have been received for the Tribunal to further consider. has seen the four questions but not been privy to the answers in reply. I see no reason to believe anything other than a robust orthodox response to the questions has been provided by the Board of Assessors. I am also led to believe that the House of Bishops has agreed on a common approach.

A Critical Opinion

It goes without saying that the opinion, when it is issued, will be be critical for the ongoing unity of the Anglican Church of Australia. The Appellate Tribunal has indicated that they would like to be in place to send a copy of their opinion to the General Synod Standing Committee that meets on 13&14 November.

The Constitution does not require them to send the opinion to the Standing Committee first but, given the political importance of what they have to say, it seems a sensible first move. The Standing Committee will then have time to consider how to respond, not least with respect to any implications for General Synod in 2021.

So what should readers of look out for? Here’s a few thoughts in no particular order:

  1. Perhaps there will be another delay? I think it’s unlikely at this point but there is also really no rush. General Synod meets mid-2021 and that remains the real deadline for an opinion to be issued. In the meantime, the moratorium on further implementation of same-sex blessings appears to be holding (albeit there is other campaigning going on by some of our most senior clerics).
  2. How the key question of the extent of Scripture’s rule in the church is handled will be the most important thing to examine. Will the Appellate Tribunal hold to the broader view of history or will they take a much narrower (dare we say it, legal) position?
  3. How will opposing sides respond to any decision? Whatever happens this is unlikely to prevent a coming split in the Anglican Church of Australia. If revisionists lose then it is hard to see them ceasing to push their agenda – they see full endorsement of same-sex relationships as a key gospel issue. In the same way, if the Tribunal comes down in favour of the Wangaratta liturgy then it is hard to see there being any ongoing confidence by conservatives in these institutions of the Anglican Church of Australia to provide godly decisions and outcomes.

Bring on General Synod!

And so, no matter what opinion the Appellate Tribunal ends up offering (although it would be surprising to see them support Wangaratta given the incredibly clear response they are understood to have received from the Board of Assessors on the key theological question) all eyes will still turn to next year’s General Synod.

The central legislative body of the Anglican Church of Australia will debate this matter in full and we should expect to see clear motions and even bills/ordinances produced to clarify the debate. Conservatives/orthodox have been growing in representation and are now quietly confident that they can win the floor on this most important of matters. Will that be enough to produce unity? We can only pray so. will continue to seek to keep you updated as we trundle along towards a final answer.

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This Post Has 13 Comments

  1. Robert Bruce

    The pity of it all is that the leaders of our church have to spend so much of their time and effort arguing about matters that are clearly abhorrent to most Bible-believing Christians. Surely the time must be coming when the satanists, the.apostates, the sodomites, the paedophiles and all others who reject the Word are driven out to form their own church so the Christians can devote their time and effort to spreading the Gospel and bringing others to salvation.

    1. jillmengland

      It’s not only ‘satanists’ etc who are guilty here. It is ordinary people who don’t know and love the Scriptures, who are not jealous for their God, who want to think of themselves as kind, accepting and non-judgemental, and who are content to just drift with the tide. Unfortunately, they may not realise their mistake until it is too late.

  2. chris russell refers to two different “key questions” at issue:

    (1) whether same sex relationships and marriages and are consistent with the Constitution; and
    (2) the extent of Scripture’s rule in the Church.

    Expect these issues to be given short shrift by the Apellate Tribunal. In democratic societies, any question as to what is law may be avoided (by convention) by understanding the question at issue as being a matter of fact. Thus I anticipate that the Tribunal’s critical opinion, in effect, will be that there is no complete statement of belief and practice, in the Anglican Church of Australia, that precludes a liturgy for the blessing of homosexual marriages. I say this because it is certainly not the case that the extent of Scripture’s rule in the church is a key question at issue among the faithful who are the people of God.

  3. Paul Nolan

    A well-written precis, thanks David.

    As I have said on this blog many times the only honourable course for Christian churches to have taken, when the Marriage Act changed the definition of marriage to “the union of 2 people”, was to have stopped participating in combined religious & civil marriage ceremonies & stuck to marrying opposite-sex couples in religious ceremonies only. s.47(1) of the Act fully protects clergy from anti-discrimination action under ANY circumstance where they see fit not to marry ANYONE. That protection applies whether churches use the Act or not. None of the internal strife the Anglican church is going through would have occurred had it taken this action in late 2017/early 2018.

    As I have written elsewhere – “But, in three years very few churches have shown any willingness to do anything other than to have their cake & eat it too. The larger Protestant churches are bitterly split over same-sex marriage essentially on the question of blessing same-sex parishioners after their registry office marriage plus the weightier problem of gay clergy in their midst demanding to be married in the traditional, combined ceremonies. As Roman Catholic priests are supposed to be celibate, that church has “only” the first problem! All of them have hoisted themselves on their own petards because their senior ranks refused to do the honourable thing in 2017/18.”

  4. Helen Gitsham

    Thanks David for your very clear and full assessment of the Tribunal’s process and where we are up to. Having made a Submission for consideration, we are very keen to see the outcome of their deliberations.

    We pray daily for the Tribunal that their opinion will reflect the authority of God’s Word, not the capricious nature of the institution.

  5. Paul Nolan

    Hi David also Helen & Brian. Since my 13/10 piece above, I have looked up Wangaratta Synod’s response to the Primate’s referral to the Appellant Tribunal. Wangaratta’s contention is that the Church’s teaching on marriage as reflected in its form of service (presumably Holy Matrimony) is not “doctrine” as referenced in the Church’s Constitution because it is not teaching on a question of faith, rather “teaching on a question of (variously) ceremonial, ritual & discipline. Alternatively, Wangaratta say, if “the Church’s teaching on marriage is properly characterised as doctrine, it is necessarily confined to what constitutes a Christian marriage & does not extend to blessing persons in relationships that are recognised by the civil law but which do not have the status of Christian marriage.”
    I contend that this whole argument would not have arisen had the Primate, Archbishops, & Bishops said in early 2018 “We are henceforth not going to use the Marriage Act. We will marry couples who meet our criteria in religious ceremonies only.”
    If that had been the situation would Wangaratta’s wish to bless the existing civil marriages of same-sex couples have arisen? I say no. But then I must ask; was there then, or even now, the ability for Anglican clergy to bless the existing civil marriages of opposite-sex couples? If the answer is “yes” then I say whatever the Primate etc did or did not do in 2018, it would not have stopped Wangaratta or any other diocesan Synod from pushing for a form of blessing for the existing civil marriages of same-sex couples.

    Could it be that the Church’s occasional propensity to embrace a passing fad (in this instance the concept of “civil marriage” as legislated across Australia since 1961) has finally caught up with it? Rgds PN

    1. chris russell

      Paul, I think that the best thing to say, respectfully, in the way of a response to you, is that the Anglican Church of Australia, like its notorious Mother Church, has always made civil marriage its priority, as distinct from any concern that it may have with what is a godly marriage. That may perhaps explain a lot of things.

  6. Paul Nolan

    Hi Chris. It is certainly accurate to observe that most ACA clergy are firmly “wed” to the Marriage Act concept of combined civil & religious ceremonies. Some claim a public service motivation, in truth most simply enjoy wearing the two hats. Hubris appeals to all manner of we fallen ones. Rgds

    1. Geoff Fletcher

      Hello Chris & Paul. I struggle to confirm the attribution (Wilde or Churchill maybe?) but an expression comes to mind re the church “nailing his colours to the fence upon which he invariably sits”??

      1. chris russell

        Google suggests that it was a young Conservative MP, a Mr Harry Cust, referring to Prime Minister, Arthur Balfour.

    2. chris russell

      Hi Paul, I think a truly sacramental view of marriage may well support your observations, in relation to this matter. You may perhaps find Alexander Schmemann good to read: in his book, For the Life of the World, (2018), see ch 5, p.107f.

      1. Paul Nolan

        Hi Chris. It is interesting that Schmemann claims the comparatively “late” reception by the Church of civil authority to (concurrently) perform a rite of marriage, was a first step in a progressive “desacramentalization” (his word) of the sacrament of marriage.

        If that is so, the current imbroglio seems an opportune time for ACA leadership to step away from using the Marriage Act & return Holy Matrimony to the sacrament it should be. But will they? PN

        1. chris russell

          Matrimony is not a sacrament in the Anglican Church, but I don’t think that this is the real problem. Fundamentally the reason why the ACA should “step away from using the Marriage Act” is that church teaching that homosexuality is sinful is incompatible with the extension of marriage under the Act. However the Appellate Tribunal has shown itself incapable of grasping this elementary point. Apparently the Tribunal was mindful that the ACA leadership has no interest in stepping away from the Marriage Act insofar as, now, there is, clearly, “an opportune time” to terminate the teaching of the Church that homosexuality is sinful.

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