Anglican Church of Australia Constitution Act 1961 (NSW)

Anglican Church of Australia Constitution Act 1961 No 16 An Act relating to the Church of England in Australia; and for purposes connected therewith. Preamble WHEREAS by Ordinances duly passed by the Synods of the several Dioceses of the Church of England in the State of New South Wales such Dioceses have assented to a Constitution for the Church of England in Australia being the Constitution approved by the General Synod of the Church of England in Australia and Tasmania at its meeting held in Sydney on the sixth day of October one thousand nine hundred and fifty-five, for submission to the Dioceses of the said Church AND WHEREAS the said Constitution provides that it shall take effect on a day to be appointed by a deed signed by the Diocesan Bishops of not less than eighteen Dioceses of the Church of England in Australia and Tasmania including two Metropolitans declaring that their respective Dioceses have assented to the Constitution and that such day shall not be appointed until the Parliaments of five States of the Commonwealth of Australia have passed Acts for giving effect to the said Constitution AND WHEREAS not less than eighteen of the said Dioceses including not less than two Metropolitan Dioceses have duly assented to the said Constitution AND WHEREAS legal force and effect cannot be given to the said Constitution without the aid of the legislature AND WHEREAS the said Constitution so approved and assented to is set forth in the Schedule to this Act: Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows: 1 Name of Act This Act may be cited as the Anglican Church of Australia Constitution Act 1961. 2 Constitution, canons and rules to be binding for Church property purposes The several articles and provisions of the Constitution contained in the Schedule to this Act (hereinafter called the Constitution) and any canons and rules to be made under or by virtue or in pursuance thereof are and as provided in the Constitution shall be for all purposes connected with or in any way relating to the property of the Church of England in Australia binding on the Bishops, clergy and laity being members of the Church of England in Australia in the several Dioceses of the Church of England within the State of New South Wales. 3 Effect of canons and rules Any canon or rule made under or by virtue or in pursuance of the said Constitution which contravenes any law or statute in force for the time being in the said State shall to the extent of such contravention be incapable of having any force or effect. 4 Church of England Constitutions Act Amendment Act 1902—operation restricted Any provision of the Church of England Constitutions Act Amendment Act of 1902 which is inconsistent with the provisions of this Act and the Constitution shall to the extent of such inconsistency be inoperative in the several Dioceses of the Church of England within the said State: Provided that this section shall not prejudice or affect the previous operation of the said Act, or any proceeding matter or thing lawfully done or suffered under the said Act before this Act comes into operation. 5 Church Trust Property The Church of England Trust Property Act 1917, as amended, shall continue to apply to Church Trust Property within the meaning of the Act, and in the said Act all references to the Church of England shall include the Church of England in Australia. 6 As to certain references in Acts and instruments The Church of England Trust Property Act 1917, as amended, and all other Acts and Statutes and all grants deeds wills and other instruments, and all ordinances and rules of the Synods of the Dioceses in force and existence at the date when the Constitution shall take effect, shall be read and construed as if the name Church of England in Australia were substituted for the name Church of England or United Church of England and Ireland or for any other words meaning the Church of England or the United Church of England and Ireland. 7 Church of England in Australia Trust Corporation The body corporate mentioned in section sixty-four of the Constitution is hereby incorporated under the name of "The Church of England in Australia Trust Corporation", and shall have perpetual succession and a common seal, and may sue and be sued by its corporate name, and shall be capable of taking purchasing holding granting demising disposing of or otherwise dealing with real and personal property, and of doing and suffering all such other acts and things as are set forth in the Constitution and which bodies corporate may by law do and suffer. The first corporators of the said corporation shall be the persons respectively holding the following offices on the date when this Act comes into operation, namely: The Archbishop of Sydney. The Archbishop of Melbourne. The Bishop of Newcastle. The Bishop of Canberra and Goulburn. The Bishop of Ballarat. During their tenure of office a majority of the corporators for the time being shall constitute a quorum at any meeting thereof. The said corporators, so long as they shall hold their respective offices, shall remain members of the Corporation until corporate trustees are elected or appointed under the Constitution. 8 Administration of customary oaths It shall be lawful for any Bishop Commissary Administrator Chancellor Archdeacon or Registrar holding office in any Diocese of the Church of England in Australia to administer to any Bishop Clergyman or member of the said Church the oath or oaths customarily used heretofore at the ordaining of deacons or priests, consecration or enthronement of bishops institution of clergy to a cure of souls in a parish or other ecclesiastical district installation induction or collation to any office on the grant of any Licence in the said Church in the State of New South Wales and it shall be lawful for such persons to take or make such oath or oaths. 9 Powers of tribunal under chapter 9 of Constitution For the purpose of securing the attendance of witnesses and the production of documents, and for the examination of witnesses on oath or otherwise, a tribunal mentioned in chapter nine of the Constitution shall be deemed to be an arbitrator as referred to in the Commercial Arbitration Act 2010, and shall have power to administer an oath to, or take an affirmation from, a witness, and for the same purpose any party to a proceeding before such a tribunal or any person permitted by any such tribunal to submit any evidence to it shall be deemed to be a party to an arbitration agreement within the meaning of that Act. 10 Construction This Act shall be read and construed so as not to exceed the legislative power of the State to the extent that where any enactment thereof would, but for this section have been construed as being in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power. 11 Interpretation In this Act the words State of New South Wales shall have the same meaning as in the Constitution Act 1902. 12 Commencement This Act other than this section shall commence upon a day to be appointed by the Governor as hereinafter provided and notified by proclamation published in the Gazette. The day so to be appointed shall be the day appointed and notified in the Commonwealth Gazette in accordance with section sixty-eight of the Constitution. A copy of the Commonwealth Gazette containing a notification of the appointed day which purports to be signed by one or more of the Metropolitans shall be conclusive evidence that the day has been duly appointed in accordance with section sixty-eight of the Constitution. Schedule THE CONSTITUTION OF THE CHURCH OF ENGLAND IN AUSTRALIA PART 1 CHAPTER 1 FUNDAMENTAL DECLARATIONS — 1. The Church of England in Australia, being a part of the one Holy Catholic and Apostolic Church of Christ, holds the Christian Faith as professed by the Church of Christ from primitive times and in particular as set forth in the creeds known as the Nicene Creed and the Apostles' Creed. 2. 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. 3. This Church will ever obey the commands of Christ, teach His doctrine, administer His sacraments of Holy Baptism and Holy Communion, follow and uphold His discipline and preserve the three orders of bishops, priests and deacons in the sacred ministry. CHAPTER 2 RULING PRINCIPLES — 4. This Church, being derived from the Church of England, retains and approves the doctrine and principles of the Church of England embodied in the Book of Common Prayer together with the Form and Manner of Making Ordaining and Consecrating of Bishops, Priests and Deacons and in the Articles of Religion sometimes called the Thirty-nine Articles but has 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. Provided further that until other order be taken by canon made in accordance with this Constitution, a Bishop of a Diocese may, at his discretion, permit such deviations from the existing Order of Service, not contravening any principle of doctrine or worship as aforesaid, as shall be submitted to him by the Incumbent and Churchwardens of a parish. Provided also that no such request shall be preferred to the Bishop of a Diocese until the Incumbent and a majority of the parishioners present and voting at a meeting of parishioners, duly convened for the purpose, shall signify assent to such proposed deviations. Such meeting shall be duly convened by writing, placed in a prominent position at each entrance to the Church and by announcement at the Morning and Evening Services, or at the service if only one, at least two Sundays before such meeting, stating the time and place of such meeting, and giving full particulars of the nature of the proposed deviation. 5. Subject to the Fundamental Declarations and the provisions of this Chapter this Church has plenary authority and power to make canons, ordinances and rules for the order and good government of the Church, and to administer the affairs thereof. Such authority and power may be exercised by the several synods and tribunals in accordance with the provisions of this Constitution. 6. This Church will remain and be in communion with the Church of England in England and with Churches in communion therewith so long as communion is consistent with the Fundamental Declarations contained in this Constitution. PART 2 THE GOVERNMENT OF THE CHURCH — CHAPTER 3 OF THE BISHOPS — 7. A diocese shall in accordance with the historic custom of the One Holy Catholic and Apostolic Church continue to be the unit of organisation of this Church and shall be the see of a bishop. 8. There shall be a bishop of each diocese who shall be elected as may be prescribed by or under the constitution of the diocese, provided that the election shall as to the canonical fitness of the person elected be subject to confirmation as prescribed by ordinance of the provincial synod, or if the diocese is not part of a province then as prescribed by canon of general synod. During any vacancy in the office or incapacity of the bishop of any diocese or during his absence from the diocese for a period exceeding thirty days the authorities powers rights and duties conferred or imposed on him by this constitution shall be exercised by the person appointed by or under the constitution of the diocese to administer the affairs of the diocese. General synod may by canon confer upon a bishop of a diocese the title of Archbishop provided that such canon shall be carried by an affirmative vote of at least two-thirds of the members of each house and shall receive the approval of all the Metropolitans. 9. There shall be a Metropolitan (to be called Archbishop) of each province of this Church who shall hold office as prescribed by any Act of Parliament or by the constitution of the province or by ordinance of the provincial synod. During any vacancy in the office or incapacity of the Metropolitan of any province, or during his absence from the province for a period exceeding thirty days the authorities powers rights and duties of the Metropolitan under this Constitution shall be exercised by the senior diocesan bishop of the province at the time in the province able and willing to act, seniority being determined by the date of consecration. 10. There shall be a Primate of this Church who shall be elected and hold office as may be prescribed by canon of the general synod. During any vacancy in the office or incapacity of the Primate or during his absence from Australia for a period exceeding thirty days, the authorities powers rights and duties of the Primate under this Constitution shall be exercised by the senior Metropolitan at the time in Australia able and willing to act, or if there is no Metropolitan able and willing to act, then by the senior diocesan bishop at the time in Australia able and willing to act, seniority in every case being determined by the date of consecration. 11. The Primate Metropolitans and diocesan bishops may apart from their meetings as a house of bishops of the general synod meet from time to time for the discharge of the functions assigned to a meeting of them under this Constitution. 12. Such a meeting of the said bishops shall be convened by the Primate on his own initiative or at the request in writing of not less than one-third of the bishops, and shall have power to regulate its own business. 13. The presence of at least one-half of the said bishops shall be necessary to constitute such a meeting of the bishops for the discharge of its functions under this Constitution. 14. A certificate signed by the Primate or Metropolitan or Bishop presiding in the absence of the Primate and purporting to state a decision of such a meeting of the bishops or the votes of individual bishops shall be evidence of the matters so stated. CHAPTER 4 OF GENERAL SYNOD — Composition and Procedure 15. General synod shall consist of the house of bishops, the house of clergy and the house of laity. The three houses shall sit together in full synod and shall deliberate and transact business therein and shall vote together unless a vote by houses is required by not less than five members of the house of bishops or by ten members of the house of clergy, or by ten members of the house of laity. In the event of a vote by houses being required, all questions shall be put first to the house of laity, then to the house of clergy, and finally to the house of bishops and no question shall be deemed to be resolved in the affirmative by general synod unless it is so resolved by a vote of the majority of those present in each of the three houses. A house by a majority of its members voting may decide to consider separately any matter in debate whereupon further discussion of the matter shall be postponed until there has been an opportunity of separate consideration. 16. The house of bishops shall be composed of the Primate, Metropolitans, and diocesan bishops. 17. (1) The house of clergy shall be composed of clerical representatives of each diocese. (2) The house of laity shall be composed of lay representatives of each diocese. (3) Clerical and lay representatives of a diocese shall be elected or appointed, and any vacancy in the place of a representative shall be filled at such time and in such manner as may be prescribed by or under the constitution of the diocese. (4) The number of representatives shall be determined in accordance with the table annexed to this Constitution. (5) Every bishop or priest shall be qualified to be a clerical representative of a diocese if he is resident therein at the date of his appointment and holds a licence from the diocesan bishop, provided however that the qualification of residence in the diocese shall not be necessary in the case of a missionary diocese or a diocese having less than thirty-one clergymen resident and duly licensed to officiate therein. (6) Every layman who is not under the age of twenty-one years and is a communicant of this Church shall be qualified to be a lay representative of a diocese, whether he does or does not reside therein. (7) The bishop of each diocese shall certify and transmit to the Primate a list of names and addresses of the clerical and lay representatives of the diocese. In the event of any change in the representation of a diocese the bishop shall certify and transmit to the Primate a supplementary list showing the change. Any list or supplementary list so certified shall be evidence that a representative therein named is entitled to be such representative unless a subsequent list shows that he has ceased to be a representative. 18. General synod in such manner as it may deem proper may determine whether any person who claims to be a member of the synod or of any house is entitled to be a member thereof and whether he has been duly and lawfully elected appointed or summoned to the synod. 19. (1) General synod may proceed to the despatch of business notwithstanding the failure of any diocese to provide for its representation in the synod and notwithstanding a vacancy in the office of Primate or a Metropolitan or a diocesan bishop. (2) No canon rule act or exercise of power of general synod shall be vitiated by reason only of the fact that any person to be elected appointed or summoned to the synod has not been elected appointed or summoned, or by reason only of any informality with respect to the election appointing or summoning. 20. The Primate or in his absence the senior Metropolitan present, or if there is no Metropolitan present, the senior diocesan bishop present shall be President of the house of bishops and of general synod, seniority in every case being determined by the date of consecration. The President may take part in any discussion and vote on any question. 21. Until general synod otherwise prescribes the presence of at least seven members of the house of bishops and at least fifteen members of the house of clergy representing not less than seven dioceses and of at least fifteen members of the house of laity representing not less than seven dioceses shall be necessary to constitute a meeting of general synod for the exercise of its powers. 22. At each session of synod the house of clergy and the house of laity shall elect its own chairman and such other officers as it considers necessary. Sessions 23. Until general synod by canon otherwise prescribes: (a) Ordinary sessions of synod shall be held at intervals not exceeding four years, and at such time and place as synod may by resolution appoint or failing any such resolution then as the standing committee of synod may by resolution appoint provided that the standing committee of synod may on grounds of emergency or other special grounds by resolution defer the summoning of synod for a period exceeding four years from the previous synod but not exceeding twelve months from the date of such resolution and may do so from time to time provided further that synod shall meet at least once in every six years; (b) A special session of synod shall be convened by the Primate at the request in writing of not less than one-half of the members of the house of bishops or of one-third of the members of the house of clergy or of one-third of the members of the house of laity or upon a resolution of the standing committee; (c) At least four months before the time for any ordinary session of synod the Primate shall by mandate under his hand and seal summon the diocesan bishops, and require them to convene the prescribed number of clerical and lay representatives of their respective dioceses at the appointed time and place; (d) The procedure and powers of synod in a special and an ordinary session shall be the same, provided that in a special session no business other than the business specified in the mandate shall be transacted. Records and Seal 24. The proceedings of general synod shall be duly recorded and be authenticated by the signature of the President. Every canon of general synod shall be printed in duplicate, and each duplicate shall be certified as correct by the President, the chairman of committees and the secretaries of the synod, authenticated by the official seal, and filed in books. 25. (1) General synod shall have an official seal, which shall be judicially noticed. The seal shall not be used to authenticate any canon rule resolution instrument or document or any copy thereof except upon a resolution of synod or of the standing committee of synod and by and in the presence of at least three members of the said committee. (2) Any canon rule resolution instrument or document authenticated by the official seal shall be admissible in evidence without further proof. A document purporting to be a copy of any canon rule or resolution so authenticated and purporting to be certified by at least three members of the standing committee as a true copy shall be evidence of the canon rule or resolution and be admissible in evidence without further proof. CHAPTER 5 OF THE POWERS OF GENERAL SYNOD — 26. Subject to the terms of this Constitution synod may make canons rules and resolutions relating to the order and good government of this Church including canons in respect of ritual, ceremonial and discipline and make statements as to the faith of this Church and declare its view on any matter affecting this Church or affecting spiritual, moral or social welfare, and may take such steps as may be necessary or expedient in furtherance of union with other Christian Communions. 27. A canon shall be made by a bill passed in accordance with the following procedure: (i) The bill shall have been circulated to each diocese at least three months before the first day of the session of synod at which the bill is to be presented, provided that the standing committee may allow a shorter period of notice but not less than one month and provided further that general synod by an affirmative vote in each house of at least three-fourths of the members present may declare any bill to be a matter of urgency and permit it to be included in the agenda without previous notice. (ii) (a) After the bill has been read and passed a first and second time, it shall be considered in committee and reported back with or without amendment; (b) The bill shall be read and passed a third time provided however a special bill shall follow the procedure hereinafter appointed. 28. (1) A bill which deals with or concerns the ritual ceremonial or discipline of this Church shall follow the procedure of this section as a special bill unless synod by vote in each house of at least three-fourths of the members present decides that it need not proceed as a special bill. (2) In the case of other bills if not less than twenty-five members of general synod petition the President that a bill should be treated as a special bill the President shall put to general synod the motion that it be so treated and if general synod so decides the bill shall be dealt with as a special bill. (3) Special bills shall be dealt with as follows: (i) A special bill after the first and second readings and the committee stage have been concluded shall be submitted for a provisional third reading and if the bill is then approved by a vote of at least two-thirds of the members of each of the three houses present it shall stand as a canon provisionally made. (ii) The provisional canon shall then be referred to the synod of each diocese for its consideration and each diocesan synod shall submit to the President within a period specified by canon or by the provisional canon its assent to or dissent from the bill together with such report and recommendations as it may think fit. (iii) If every diocesan synod reports that it assents to the provisional canon the President shall so declare and thereupon it shall be a canon duly passed, otherwise the reports and recommendations received from the diocesan synods shall be presented to general synod which shall recommit the provisional canon as a bill to a further second reading and committee stage. (iv) If on the subsequent third reading the bill is approved by at least two-thirds of the members of each of the three houses present it shall be a canon, unless general synod immediately before the vote is taken by a majority of the three houses voting together shall declare that such reading shall be provisional only whereupon the procedure given above shall again be followed. 29. If not less than one-fourth of the members of general synod or one-third of the members of the house of bishops or of the house of clergy or of the house of laity petition the President that a canon duly made is in whole or in part inconsistent with any part or parts of the Fundamental Declarations or Ruling Principles of the Constitution or that a canon deals with or concerns ritual ceremonial or discipline of this Church and has not been passed in accordance with section 28 (1) hereof, the President shall refer the question to the appellate tribunal and in the meantime the canon shall not come into force. If the tribunal finds no inconsistency or no breach of section 28 (1) as the case may be, the President shall thereupon declare the canon to be in force. If the tribunal finds inconsistency or breach of section 28 (1), it shall report to general synod the nature of the inconsistency or breach giving its reasons and may, if it thinks fit, indicate what amendments, if any, would remove the inconsistency or avoid the breach, and unless and until such amendments are made by general synod the canon shall not come into force. 30. Subject to the preceding section and unless the canon itself otherwise provides, a canon duly passed by general synod shall come into force on and from a date appointed by the President, being not later than one calendar month from the date upon which the canon was passed. The canon as on and from the appointed date shall apply to every diocese of this Church and any ordinance of any diocesan synod inconsistent with the canon shall to the extent of the inconsistency have no effect. Provided that: (a) Any canon affecting the ritual, ceremonial or discipline of this Church shall be deemed to affect the order and good government of the Church within a diocese, and shall not come into force in any diocese unless and until the diocese by ordinance adopts the said canon. (b) If general synod declares that the provisions of any other canon affect the order and good government of the Church within, or the church trust property of a diocese, such canon shall not come into force in any diocese unless and until the diocese by ordinance adopts the said canon. (c) If general synod should not so declare the synod of a diocese or the diocesan council may declare its opinion that the provisions of the said canon affect the order and good government of the church within or the church trust property of such diocese and notify the President within one month thereafter and then the following provisions shall apply: (i) If the said diocesan synod or council declare its opinion as aforesaid within a period of two years from the date of the passing of the said canon and the standing committee advises the President that it agrees with the said opinion the canon shall not and shall be deemed not to have come into force in such diocese unless and until it is adopted by ordinance of the diocesan synod; (ii) If the said diocesan synod or council declare its opinion at any time after the expiration of the said period of two years and the standing committee advises the President that it agrees with the said opinion the said canon shall cease to apply to the said diocese as from the date of the said declaration and shall not after such date again come into force in such diocese unless and until it is adopted by ordinance of the diocesan synod; (iii) If the standing committee in either case should not so advise the President he shall refer the question raised by the said opinion to the appellate tribunal for its determination and unless the appellate tribunal determines the question in the negative the canon shall be deemed not to have come into force in the said diocese in the first case or to have force or effect in the said diocese after the date of the said declaration in the second case until the diocesan synod by ordinance adopts the said canon. (d) Any canon adopted as aforesaid by a diocesan synod may by ordinance be excluded at a subsequent date. 31. If any question shall be raised as to the inconsistency of any canon rule resolution or statement of general synod with the Fundamental Declarations or the Ruling Principles the Primate may and at the written request of twenty-five members of general synod shall refer the question to the appellate tribunal hereinafter constituted whose opinion thereon shall be final. 32. (1) Synod shall not make any canon or rule imposing any financial liability on any diocese except in accordance with this section. (2) Synod may by canon or rule provide for the costs charges and expenses in or in connection with: (a) The carrying into effect of this Constitution; (b) The holding of synod and the conduct of its business; (c) The meetings of the standing committee and of any other committee, board or commission appointed by synod; (d) The sittings of the appellate tribunal to hear and determine any appeal question or matter made or referred to it and the sittings of the special tribunal to hear and determine any charge brought before it; (e) The maintenance of the registry of the Primate, and primatial travelling expenses; (f) The election or appointment of the corporate trustees and the administration of the affairs of the body corporate. Provided that synod may make any canon or rule imposing a financial liability on any diocese which by ordinance assents to the same including the costs charges and expenses in or in connection with the conduct of the affairs of any board institution or body set up by synod and provided also that any financial liability accepted by a diocese under any determination rule or regulation continued in operation under section 71 hereof shall remain unless or until it is replaced by or under the provisions of this Constitution. 33. (1) General synod may make rules prescribing anything necessary or convenient for carrying out and giving effect to any canon or for controlling and regulating the administration of its affairs, and in particular may make rules prescribing: (a) The procedure for any election or appointment to be made by or under the authority of synod to any office; (b) Th