The Lord's Supper in Human Hands

THE

LORDS SUPPERIN HUMAN HANDS

EPILOGUE

EDITORSPETER G. BOLT, MARK D. THOMPSON, ROBERT TONG

The Lords Supper in Human Hands Epilogue 2010 belongs to the individual authors of the essays, or the editors, as indicated. Theviews expressed in the various essays, or by the editors, are not necessarily shared intheir entirety by all other authors.

Australian Church Record(ACN 000 071 438)PO Box 218Camperdown NSW 1450www.australianchurchrecord.net

Distributed in Australia by:Australian Church Record

Distributed in the United Kingdom by:The Latimer TrustPO Box 26685London N14 4XQwww.latimertrust.org

Anglican Church League can to contacted at: www.acl.asn.au

National Library of Australia Cataloguing-in-Publication entry

Title: The Lords Supper in human hands [electronic resource]:epilogue/editors, Peter G. Bolt; Mark D. Thompson; Robert Tong.

Edition: 1st ed.

ISBN: 978-0-9803769-7-5 (eBook)

Subjects: Anglican Church of Australia. Appellate Tribunal.Lords SupperAnglican Church of Australia.Lords SupperAnglican Communion.Lords SupperLay administrationAnglican Church of Australia.Lords SupperLay celebrationAnglican Church of Australia.

Other Authors/Contributors:Bolt, Peter, 1958 Thompson, Mark (Mark Donald)Tong, Robert.

Dewey Number:264.03036

Cover design and typesetting by Lankshear Design.Printed in Australia by Ligare Pty Ltd. Phone: 02 9533 2555.

Contents

1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

2. The Minority Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

3. Diaconal Administration of the Lords Supper andThe 2010 Opinion of the Appellate Tribunal . . . . . . . . . . . . . .17

4. The Constitution, the Appellate Tribunal and other things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35

5. The theological necessity of lay administration . . . . . . . . . . . .44

6. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52

Note on Contributors

Peter G. Bolt is the head of New Testament and Greek at Moore College, amember of the Sydney Doctrine Commission, a member of General Synod,and the editor of the Australian Church Record.

Glenn N. Davies is the Bishop of North Sydney, a member of SydneySynod Standing Committee and a member of the General Synod DoctrineCommission.

Mark D Thompson heads the Department of Theology, Philosophy andEthics at Moore College, chairs the Sydney Doctrine Commission, and isPresident of the Anglican Church League. He is a member of the SydneySynod and Standing Committee as well as the General Synod and itsDoctrine Commission.

Robert Tong AM has long experience in the governance structures of theAnglican Church at diocesan, national and international levels. He has pub-lished and spoken on Anglican constitutional and legal issues.

INTRODUCT ION | 5

1Introduction

This booklet comes in the wake of an opinion delivered on the10August 2010 by the Anglican Church of Australias Appellate Tribunal.1

This opinion was the conclusion of a process begun when, undersection 63 of the Constitution, 25 persons all from outside Sydneyput six questions to the Appellate Tribunal exploring the basic questionwhether certain canons of the Australian General Synod permitted layand diaconal administration of the Lords Supper.2

Our purpose in publishing this booklet is to help members of theSydney Synod place the advisory opinion of the Appellate Tribunal inbroad context as that opinion intersects with Sydney Synod Resolution27/2008. Much of the content of the booklet addresses legal andconstitutional issues relevant to our own context. However, it is ourfirm hope that our Anglican brothers and sisters in other Australiandioceses and in other parts of the Anglican Communion will under -stand and support the under-girding theology for this develop ment inthe life of the church for the benefit of the people of God.

In 2008 we published The Lords Supper in Human Hands: WhoShould Administer? with the purpose of reporting to Christiansinterested in the issue, something of the discussion on Lay andDiaconal Administration of the Lords Supper that has gone on in

6 | THE LORD ' S SUPPER IN HUMAN HANDS EP I LOGUE

Sydney Diocese (and elsewhere) for over forty years. That volume wasan attempt to share some of the theological thinking and the historyof various decisions made by the Sydney Synod in favour of removingthe prohibition restricting the administration of the Lords Supper topriests only. It highlighted the silence of Scripture, a silence whichopens up the possibility of freedom of action in this matter. Yet suchfreedom should be exercised responsibly and ought to be shaped bysound theological reflection. It is this conviction which explains whyin Sydney there has been extensive discussion of the issue, producingat least six major reports concluding in favour of lay and diaconaladministration.The Lords Supper in Human Hands responded to a number of the

charges made by opponents of this measure. One such charge is thatthe Diocese of Sydney has taken an eccentric position which is out ofstep with the rest of the Anglican world and with Anglican history. In response the 2008 volume gathered the evidence from a widevariety of sources which demonstrates that the Sydney discussionwas not isolated and certainly was not held secretly or in a corner.For well over 100 years the issue of non-priestly administration of thesacramentsespecially in mission contextshas been given voicefrom various places around the globe (including England, India, Africaand Australia).

It has also been suggested that the Diocese of Sydney was advocatinganarchy, with any lay person or deacon being permitted to administerwithout any authorization whatsoever. However, as the 2008 volumedemonstrated, all the proposals from Sydney have been for duly andproperly selected, appointed and approved persons exercising thisresponsibility. This adjustment to church order is constructive, notdestructive; it does not provoke a crisis, but attempts to solve one.

Some have sought to compare this proposal with the action ofothers who have fractured the Anglican Communion by flagrantdisregard of the expressed mind of Scripture in the area of humansexuality (confirmed once again in statements by representatives of

INTRODUCT ION | 7

the entire Communion such as Resolution 1.10 of the 1998 LambethConference). The Lords Supper in Human Hands again demonstratedthat this suggestion is egregious. Scripture is silent on the issue ofwho should administer the Lords Supper but it is not silent at allabout human sexuality. The two issues are not comparable. Theproposal of lay and diaconal administration springs from faithfulnessto Scripture. It is a development in church order in order further toembody biblical and Reformation principles. It is, as one report deftlyputs it, a change to stay the same.

Within this basically theological and historical context, the essaysin The Lords Supper in Human Hands also included one essay of amore legal nature, namely, the essay by Dr Glenn Davies, Bishop ofNorth Sydney: The Authorisation of a Deacon to Administer theHoly Communion. The background to Bishop Davies essay lies in anopinion handed down by an earlier Appellate Tribunal, when Lay andDiaconal Administration was the subject a previous reference to thatbody. In an opinion given on 24 December 1997, it stated

(1) It is consistent with the Constitution of the Anglican Churchof Australia to permit or authorise, or otherwise makeprovision for

(a) deacons to preside at, administer or celebrate the HolyCommunion; or

(b) lay persons to preside at, administer or celebrate the HolyCommunion; and

(2) It is not consistent with the Constitution of the Anglican Churchof Australia for a diocesan synod, otherwise than under andin accordance with a Canon of General Synod, to permit,authorise or make provision as mentioned in paragraph (1).

That is, the legislative authorization for lay persons and deacons toadminister the Lords Supper, according to the Appellate Tribunal, isconsistent with the Constitution, but requires a Canon of GeneralSynod of the Anglican Church of Australia before a diocesan synod


can authorise the practice. In his essay in The Lords Supper in Human Hands, Bishop Davies

gave an answer to the narrow legal question of the last paragraph: isthere a canon? He argued that the Ordination Service for Deacons Canon1985 is such a canon, providing the permission for deacons to administerthe Lords Supper.

On 20 October 2008, the Synod of the Diocese of Sydney passedResolution No 27/2008, stating their view that the Sydney Synod:

(a) accepted the report concerning legal barriers to lay anddiaconal administration of the Lords Supper which wassubmitted to the 3rd session of the 47th Synod; and

(b) affirmed again its conviction that lay and diaconaladministration of the Lords Supper is consistent with theteaching of Scripture; and

(c) affirmed that the Lords Supper in this diocese may beadministered by persons other than presbyters.3

There has been a strong reaction to this resolution of the SydneySynod from some within the wider Anglican Church of Australia.Claiming to have evidence that the view expressed in Resolution27/2008 had been acted on in some Sydney congregations, the issuewas referred to the Appellate Tribunal, by way of six questions.

Even though the reference concerned a resolution of the SydneySynod, the Sydney Standing Committee did not make a submission.Bishop Glenn Davies lodged a submission as an interested person butnot as a representative of the Diocese. This gave the Tribunal somecause for thought:

[17]. Normally, the Tribunal declines to answer questions which areposed for its decision where there is no proper argument presentedor where there is no proper contradictor. The reason for this is thatit is no service to the Church for the Tribunal to make a bindingruling where it has only been presented with inadequate material.

INTRODUCT ION | 9

The Appellate Tribunal published their opinion on this most recentreference, on 10 August 2010. The majority opinion was that, contraryto Bishop Davies argument, there was no canon permitting Lay &Diaconal Administration. The Rt Rev Peter Brain, Bishop of Armidaledissented from the majority opinion, arguing that permission can befound in the Ordination Service for Deacons Canon 1985 (Question 3),and that the Sydney Synod Resolution 27/2008 is consistent and inaccordance with the Constitution of The Anglican Church of Australiaand the canons made thereunder.

The Appellate Tribunal was asked to give its opinion on areference concerning a narrowly defined legal question. The majorityopinion declared, in effect, there was no canon of the General Synodpermitting administration of the Lords Supper by someone otherthan a priest and the Sydney Resolution 27/2008 was not consistentwith the Constitution.

Bishop Brains minority report disagreed on both counts.This present volume provides further reflection upon this Appellate

Tribunal opinion. The editors are responsible for the introduction(chapter 1). Bishop Brains minority decision, in edited form is Chapter2. A response by Bishop Davies to the Appellate Tribunals decisionforms Chapter 3. A note on the Appellate Tribunal and the constitutionis provided by Robert Tong in chapter 4. Since the discussion in theDiocese of Sydney has always been within a biblical and theologicalframework, in Chapter 5 Mark Thompson reflects upon the recentevents in that framework, to help re-set the issue into that propercontext which has always dominated the debate in Sydney. The editorsthen provide some concluding reflections.

ENDNOTES

1 All members of the Appellate Tribunal considered the Reference: The Hon Mr JusticePeter W Young, AO, President, Mr Max Horton OAM, Deputy President, The Hon JusticeDavid J Bleby, The Hon Keith Mason AC QC, The Most Rev Phillip Aspinall, Archbishop of Brisbane, The Most Rev Roger Herft Archbishop of Perth and The Rt Rev Peter Brain,Bishop of Armidale. For Appellate Tribunal opinions, see the http://www.anglican.org.au.


2 The canons involved in this reference are, in chronological order, the Lay Assistants atHoly Communion Canon 1973, the Ordination of Deacons Canon 1985, the Authorized LayMinistry Canon 1992 and the Canon Concerning Services 1992.3 In the interest of sharing Sydneys thinking on the issue with others in the Communion,the resolution also requested that the Diocesan Secretary to send a copy of The Lords Supperin Human Hands to all bishops who attended the GAFCON.

THE M INOR ITY REPORT | 11

2The Minority Report

Peter Bolt

The Right Reverend Peter Brain, Bishop of Armidale and a memberof the Appellate Tribunal dealing with this reference, dissented fromthe majority opinion on two of the six questions put.1

Bishop Brains Agreement With the Majority and Reservations

Bishop Brain agreed with the rest of the tribunal that three of the fourcanons (Lay Assistants at Holy Communion Canon 1973; Authorized LayMinistry Canon 1992; and Canon Concerning Services 1992) do not permitLay & Diaconal Administration of the Lords Supper. He also agreed thatthere are no further Canons beyond the four being considered in thereference, which provide support for such practice. [115].

In expressing these points of agreement, however, Bishop Brainalso added several further comments and reservations:

1) I particularly endorse the final sentence of paragraph [22]:there is Scriptural authority for the view that proceedings ofsuch nature before a secular court are wrong for believers. Thosewords send a signal that could keep us from both legalism (whichrarely enhances fellowship) and unseemly litigation. [116].


2) Paragraph [32] of the majority opinion noted that the 1985canon authorizes an additional form of service for the makingof deacons, and opines that there is no express indication thatthe function of the deacon is altered or that there will be twoclasses of deacons, one ordained under the 1985 form withextra powers and functions and the other under the traditionalform without those powers and functions. The paragraph thenends, this is an unlikely intention of the General Synod.

Whilst agreeing to the last sentence, Brain adds that theintention of General Synod can only be determined by theactual words used. [117].

3) The Supporting Parties argued (paragraph [33]) that ever since theCouncil of Nicea in ad 325, the official line taken by the churchis that deacons cannot celebrate the Holy Communion and itwould be strange if the General Synod changed this inferentially.Bishop Brain responded by saying that Nicea ad 325 is anarrow view of the Church. There are branches of the Churchthat allow authorised diaconal and lay administration. [118].

4) Paragraph 34 added further that the rubrics in the Book ofCommon Prayer Service plainly indicate priestly presidency ofthe Eucharist. The Curate in the rubrics refers to the priest incharge of the parish, but even more explicitly, the rubricsconsistently refer to the priest. Brain responds: I would notwish the statement in paragraph [34] to be taken ascontradicting the rulings of the Tribunal 1(a) and 1(b) of 24December 1997. [119].2

5) Bishop Brain declared that paragraph [38], which suggests theassumption of a nexus between preaching the Word andadministering the sacraments should be tested, is specialpleading. Our own Article 19 and the Priesting ordinal makesthis connection between preaching and administration of theHoly Communion perfectly clear. [120].

6) Responding to paragraph [85] brings Bishop Brain to the nub ofmy problem [121], namely, (a) it may have been decreed in ad 325 that only priests and


bishops could celebrate Holy Communion but the NewTestament contains no such direction. (b) the fact that the rule was not always strictly applied shouldalert us to the danger of a legislative solution to what is surelyan issue on which legalism can hardly promote fellowshipacross the Anglican Church of Australia.

Bishop Brains Minority Report

Bishop Brains differs from the opinion of the majority of the Tribunal bygiving affirmative answers to Questions 3 and 6 of the reference. To beconcrete: here he considered, firstly, that Diaconal Administration waspermitted by Ordination of Deacons Canon 1985 (Q.3) and, secondly, heconsidered Resolution 27/2008 of the Synod of the Diocese of Sydney tobe consistent with the constitution of the Anglican Church of Australiaand the canons made thereunder (Q.6).

Bishop Brain qualified his yes to Question 3 [122] by saying that(i) though I dont think this was the intention of the 1985 Canon(ii) yet on the basis of the previous Tribunal reasons concerningconsecration of women, to be consistent an unintended intentionneed not overrule a possible reading of the Canon.

In answering yes to Question 6 he provided five reasons [123124]:

(i) In our Constitution the Diocese is considered the central unitof our church and therefore after careful theologicalconsideration and Synodical approval and with the concurrenceof the Bishop it should be able to order the life of that Diocese.

(ii) Reason (i) above should be consistent with the primary sourceof authority in the Anglican Church of Australia, viz.Scripture. Since the New Testament provides no direction forthe administration of the Lords Supper our church would beunwise to do so save the direction that the person celebratingshould be (a) a Christian (b) well regarded (c) accepted as acongregational leader (d) involved in the teaching and pastoralministry of the church.


(iii) The New Testament knows of no ministry in the church ofpriests (save that of all the Christians, usually called thepriesthood of the believers following 1 Peter 2).

The terms bishop, elder and pastor appear to beinterchangeable in significant NT passages eg Acts 20:1731;Titus 1: 59; 1 Peter 5:12. What is emphasised is thecharacter, the teaching ability and adherence to apostolicdoctrine of the person.

Since presiding at the Lords Supper is not the subject of anyNT Scripture we can safely assume that the above characteristicsand commitment to Christ and His people are suitablerequirements for those who might preside at Holy Communion.

(iv) this is entirely consistent with Tribunal previous ruling24/12/1997 1(a) and (b) and in my opinion renders the needfor a Canon of General Synod unnecessary.3

(v) There are practices across the Anglican Church of Australia to do with the Lords Supper that if not commonplace, havebecome accepted practice, with Episcopal consent, butwithout General Synod approval, that would render a Noanswer out of step with prevailing practice.

These include (a) the reservation of the sacrament (not justfor extended communion in nursing homes) for use inparishes without priests (against the Article) (b) the practiceof giving newly ordained priests a chalice as well as a Bible atordination (against the rubric) (c) the praying of certain wordsprior to consecration that would imply an offering by thepriest of bread and wine as works of our own hands to God(against the order of our services).

This latter practice, (c), is so serious that it turns theservice of Holy Communion on its head from a sacrament ofGods grace to one of our own works.

Bishop Brain explained that he raised these issues to ask the question:do we want the Anglican Church of Australia to be a Church thatoperates as a fellowship-grace model or one that functions on alitigious antagonistic model? [125]. In addition, he noted that:


We do have already across the Anglican Church of Australia twoclasses of priests brought about essentially to solve the problem ofEucharistic ministry for small communities (or communities thatcannot afford a priest or in places where no priests are available).Lay people who have not been fully trained (certainly not in thetraditional sense) are ordained for the purpose of presiding atCommunion. A No answer to this question, though technicallycorrect, would have the effect of (a) devaluing the training ofDeacons in Sydney Diocese and (b) giving a value to the priestsrole in Holy Communion that is warranted neither by our Articlesnor Scripture. [126].

This is not to devalue the Godliness, commitment, character orministry of either lay people in general or those who have beenordained as local priests but to imply that there is another way ofsolving the problem, viz. diaconal or lay presidency properlyordered (which is in line with the Tribunal ruling 24/12/1997 andconsistent with our fundamental authority Scripture). [127].

To conclude his opinion, Bishop Brain provided his own summary,reiterating that his affirmative answer to Question 6 amounts to [128]:

* an affirmation that according to our Constitution, Scripture isour primary and binding authority;

* an unwillingness to endorse the maintenance of fellowship in theAnglican Church of Australia on the basis of legal appeal inmatters that do not infringe any Scriptural teaching;

* an appeal to Article XXXIV (34) which sets the authority ofScripture above tradition of the church by endorsing a variety ofpractices in the Anglican Church of Australia so long as they arenot against or repugnant to Gods Word.

ENDNOTES

1 This is an edited version of Bishop Brains opinion, which at some points summarizesand at other points expands the original text in order to render it more readable as a stand-alone contribution. The original paragraph numbers are provided in square brackets [ ]. 2 The opinion of the majority of the Appellate Tribunal, expressed in its opinion given on


24 December 1997, was that:(1) It is consistent with the Constitution of the Anglican Church of Australia to permitor authorise, or otherwise make provision for

(a) deacons to preside at, administer or celebrate the Holy Communion; or(b) lay persons to preside at, administer or celebrate the Holy Communion; and

(2) It is not consistent with the Constitution of the Anglican Church of Australia for adiocesan synod, otherwise than under and in accordance with a Canon of GeneralSynod, to permit, authorise or make provision as mentioned in paragraph (1).

3 See note 2 above.

D IACONAL ADMIN ISTRAT ION OF THE LORD S SUPPER | 17

3Diaconal Administration of the Lords Supper and The 2010 Opinion

of the Appellate TribunalGlenn N. Davie s

Introduction1. On 10 August 2010 the Appellate Tribunal reported to the Primate

on their opinion concerning six questions brought to them by over 25 members of the General Synod, in accordance with the Constitution of the Anglican Church of Australia. While thequestions ranged over a number of aspects relating to diaconal andlay administration of the Lords Supper, the answer to Question 3is the concern of this article.

2. Question 3 asked whether the Ordination Service for Deacons Canon1985 permitted or authorised deacons to administer the LordsSupper. The majority opinion of the Appellate Tribunal (BishopPeter Brain dissenting) answered No.


3. In 1997 the Appellate Tribunal expressed the opinion thatdiaconal administration was consistent with the Constitution ofthe Anglican Church of Australia, in particular the FundamentalDeclarations and Ruling Principles of the Church, that is to say,that the practice is consistent with the teaching of Holy Scripture,and the doctrine and principles of both the Book of Common Prayerand the 39 Articles. However, the Tribunal considered that aCanon of General Synod was necessary to authorise this practice.The question before the Appellate Tribunal, therefore, was a legalone: does the 1985 Ordination Service for Deacons Canon allow fordiaconal administration?

4. It ought first to be recognised that the voluntary labours of themembers of the Appellate Tribunal deserve the Churchs thanksand appreciation. The matters that come before them are oftencomplex, and when the issues are contentious, it would be a rarething that their opinion would please all parties in the Church.Nonetheless, it is the contention of this article that the AppellateTribunals Opinion on this matter is wanting.

The Legal Argument for Diaconal Administration5. In a private submission to the Tribunal I argued that Question 3

should be answered in the affirmative, namely, that the words ofthe service did allow for deacons to administer the Lords Supper.My argument rested upon the revised words in the 1985 Service,which itself was a self-styled radical revision, an alternative to theconservative revision of the Ordinal that was published in AnAustralian Prayer Book (AAPB) in 1978. The 1985 service departedfrom the text of both AAPB and BCP with expanded functions forthe deacon, notably with respect to preaching and the adminis -tration of baptism and Holy Communion.

6. Unlike the Ordinal of BCP, the deacons responsibilities in the


1985 service were not delineated separately with respect to eachsacrament (baptise infants in the absence of the priest; help thepriest in the distribution of the Holy Communion), but werecoupled together in the expression to assist in the administrationof his holy sacraments, without any further qualification concerningthe presence or absence of the priest.

7. On three occasions the service makes reference to the responsi -bilities of the deacon with respect to the administration of theLords Supper.

From the bishops instruction: You are to be faithful in prayer, and take your place with bishop,priest and people in public worship and at the administrationof the sacraments.

In the bishops questions:Will you take your part in reading the holy scriptures in thechurch, in teaching the doctrine of Christ, and in administeringthe sacraments?

In the bishops authorisation:Receive this sign of your authority to proclaim Gods word andto assist in the administration of his holy sacraments.

8. This effectively expanded the function of the deacon to allow thedeacon to preach Gods word (where in BCP the deacon required aspecific licence to preach); to baptise not only infants, but candidatesof any age, and regardless of whether the priest was absent or not;and to assist in the administration of the Lords Supper in thesame way that the deacon assisted in baptism, namely to conductthe service in its entirety, under delegated authority of thepresbyter. However, the administration of the sacraments couldonly be conducted under the aegis of the priest, whom the deaconwas to assist. For further detail of the argument see my submission


at http://sydneyanglicans.net/ministry/seniorclergy/bishop_davies/articles/submission_to_appellate_tribunal_by_bishop_davies.

The Majority Opinion of the Appellate Tribunal 9. The premise of the majority opinion is that the 1985 service could

not have changed the function of a deacon, because the Book ofCommon Prayer prescribed that only the priest could administer theLords Supper and this represents the historical practice of theChurch (notwithstanding the fact that deacons did administer theLords Supper in the early church). They claim that there are no newwords in the 1985 Service expressly authorising a deacon to presideat the Eucharist. Furthermore, the official line taken by the churchis that deacons cannot celebrate the Holy Communion and it wouldbe strange if the General Synod changed this inferentially (33).

10. This is a surprising opinion, as three years earlier, the AppellateTribunal declared that a change in the definition of canonicalfitness for those who are to be consecrated bishops, allowed forwomen to become bishops. Yet there was no express authori -sation for such a change in the process for electing a bishop,notwithstanding the newly worded definition of canonical fitnesswhich only concerned the confirmation of an election. Yet thisnew understanding most certainly reflected a dramatic andunprecedented change of practice in the Church. Indeed, formore than a decade no one opined that the definitional change incanonical fitness in the Constitution would have allowed womento become bishops. Furthermore, when the Diocese of Sydneyagreed to the change in definition, it expressly declared that thechange did not mean that women could be consecrated bishops.

11. Why then did the Appellate Tribunal not apply the same logic,namely the lack of words expressly authorising diaconal adminis -tration, when it addressed the reference on women bishops, where


there existed a similar lack of express authorisation? The followingcomments on diaconal administration reveal the Tribunals relianceupon the context of the canon rather than the actual words of thecanon.

(a) This is an unlikely intention of General Synod (32);

(b) the official line taken by the church is that deacons cannotcelebrate the Holy Communion and it would be strange ifthe General Synod changed this inferentially (33);

(c) the rubrics in the Book of Common Prayer Service plainlyindicate priestly presidency of the Eucharist(34);

(d) the deacon is to take his or her place in the service ofHoly Communion the traditional place of the deacon(36).

Yet strangely, if one were to apply these comments and theprinciples underlying them to the reference on women bishops onecould easily have come to different conclusions on that reference.

12. Consider the novelty of women bishops. At no time in the historyof the Anglican Church of Australia were women admitted to theepiscopacy. Scripture does not sanction women becoming bishops,indeed there are strong arguments that the teaching of the New Testament allows women to be made deacons but not to beordained presbyters/bishops.

13. On the other hand, there is no sanction in Scripture prohibitingdeacons administering the Lords Supper. Furthermore, despitethe Appellate Tribunals unsubstantiated claim that the Council ofNicaea prohibited deacons from administering the Lords Supper,a careful reading of Canon 18 reveals that deacons were onlyprohibited from administering the Eucharist to prieststhere isno prohibition of deacons administering the Lords Supper to laypersons!


14. The Tribunals opinion claims to affect the future interpretationof the rules of the church which is not just a matter of legalism,but a matter of fairness and protection of the ordinary membersof the church (23). Yet the narrow interpretation of the newdefinition of canonical fitness of bishops provided no protectionand was manifestly unfair to a large number of church memberswho hold conscientious objections to women bishops.

15. What logic did the Appellate Tribunal use to deny deacons theirrole of assisting the presbyter in administering the Lords Supper?Here is an example. The bishop authorises the deacon with thewords: Receive this sign of your authority to proclaim Godsword and to assist in the administration of his holy sacraments.However, the Tribunal argued that assist in and assist by arematerially different.

[T]here is a real difference between assist by and assist in []a child may assist his or her father in washing the car, but it is adifferent matter to say the child assisted by washing the car. Inthe present context the deacon is to assist in the administration.(58)

Presumably this illustration, provided by one of the writtensubmissions but endorsed by the Appellate Tribunal, considersthat if a child were to assist in the washing of the car, the fatherwould also be in attendance and no doubt joining in the washing(or taking the lead). However, if the child were to assist bywashing the car, only then could the father be absent and the carbe washed entirely by the child. This purports to be an illustrationof the deacons role as one who assists in rather then assists bythe administration of the sacraments, and to which the Tribunaldeclared: We cannot see any answer to this submission. (60)

16. Yet if we change the illustration from washing a car to baptisingan infant, and change the child/father duo to a partnership of


deacon and presbyter, what would we find? We would find thatthe deacon could not assist by washing, but only assist in thewashing of baptism. In other words, the deacon could not conductthe sacrament of infant baptism unless the presbyter were atleast present or in some way involved in the baptism. This reducesthe argument to an absurdity, for it necessarily contradicts theOrdinal of BCP, which specifically authorises deacons to baptiseinfants in the absence of the priest!

17. If the Appellate Tribunals illustration were to have any merit, itwould have required the authorisation of the bishop to read: assistby the administration of baptism and assist in the administrationof the Lords Supper. However, the new ordination service fordeacons did not differentiate the role of deacons in baptism fromtheir role in the Lords Supper. Instead the service combined bothbaptism and the Lords Supper, where he or she assists in theadministration of the sacraments.

18. Furthermore, the 1997 Opinion of the Appellate Tribunal expresslycontemplated the possibility of the deacons assisting the priest,under delegation, in the administration of the Lords Supper. MrJustice Handley states it clearly in the following words.

Section 3 preserves the threefold ministry which emerged inthe Church in Apostolic times or shortly afterwards. Theministries so preserved are not defined by their functionsaccepted in the English Reformation settlement in the 16thcentury. On this issue I agree generally with the opinions ofJustice Young1 and the Bishop of Bathurst.2

The role of the deacon, as defined by the Ordinal, is to assistthe priest. If the priest was present at a communion service he(or she) would preside and the deacon would be relegated tothe role of an assistant to the presiding priest. The situationwould be otherwise if the priest was sick, on holidays, awayfrom the parish on duty, or conducting services elsewhere. Insuch circumstances the deacon could assist the priest in fulfilling


his/her ministry to the parish by conducting communionservices that the priest could not conduct personally.

The duties of deacons referred to in the Ordinal includebaptising infants in the absence of the priest so that the othersacrament of the Church can be celebrated by a delegateduring the absence of the priest. However, the role of anassistant is not limited to situations in which the rector isabsent. An assistant priest could assist the rector by conductingan entire communion service although the rector was present.In these circumstances I see no reason to construe section 3 asdenying to the Church the power, if it saw fit, to expand therole of the deacon as an assistant to the priest in charge of theparish, to enable the deacon to preside at communion, certainlyin the absence of the priest, but even if the priest is present.3

19. It is difficult to understand the logic of the 2010 AppellateTribunals opinion in the face of this evidence. Rather than allowthe words of the service to speak for themselves, they haveinvoked the sixteenth century understanding of the limitations ofthe diaconate to apply to the 1985 service, notwithstanding theplain import of the words and the changes effected by authorisingthe deacon to assist in the administration of the sacraments.

20. Yet as Lord Mersey, in an oft-cited passage from Thompson vGoold & Co [1910] AC 409 at 420, says:

It is a strong thing to read into an Act of Parliament wordswhich are not there, and in the absence of clear necessity it is awrong thing to do.4

Similarly Pearce & Geddes state:

Of course, courts can never literally read words intolegislation, any more than they can fill gaps disclosed inlegislation, as part of a process of interpretation.5

21. In a number of dioceses in Australia, the custom of local priestsor non-stipendiary priests is a departure from the historic practice


of full time stipendiary priests. In the BCP Ordinal the priest ischarged by the bishop to give yourselves wholly to this office,whereunto it hath pleased God to call you: so that, as much aslieth in you, you will apply yourselves wholly to this one thing,and draw all your cares and studies in this way. Yet the practice ofnon-stipendiary priests, who lack the normal level of theologicaltraining required of presbyters, and who are engaged in secularemployment is somehow acceptable in the Anglican Church ofAustralia, without the benefit of any canon authorising suchpractice, but diaconal administration of the Lords Supper is not.

22. A significant counter example to the Appellate Tribunalsmethodology is the Solemnization of Holy Matrimony Canon 1981.That canon is widely recognised across the Australian Church asauthorising deacons, if they are nominated by their bishop as anauthorised celebrant according to the law of the Commonwealthof Australia, to solemnise marriages. Although not all bishopsagree to deacons solemnising marriage, the majority of deaconsin Australia are authorised celebrants. However, if one looksclosely at the canon there is no express authorisation of thedeacon to undertake this ministry, despite its being a departurefrom the BCP, which only allows priests to solemnise matrimony.Rather it is the words of the canon that indicate a deacon is soauthorised when it states that marriage can only be solemnisedby a minister registered on the nomination of this Church as anauthorised celebrant according to the law of the Commonwealthof Australia. These words are capable of including deacons, but is it an express authorisation of diaconal solemnization ofmatrimony, which has been widely practised since 1981? The Appellate Tribunal rejected the plain meaning of the wordsof the 1985 service, because they not only contravened the BCPOrdinal and the rubrics of the BCP Holy Communion but alsolacked express authorisation for deacons to administer the


Lords Supper. Yet if the same methodology were applied to theSolemnization of Holy Matrimony Canon 1981, then it would beillegal for deacons to solemnise a marriage, as the canon lacks theexpress authorisation for this practice. It would be interesting tohear the response of the Appellate Tribunal to such a question:would they follow their methodology for disallowing deacons toadminister the Lords Supper, or would they follow their method -ology for allowing women bishops, notwithstanding the contraryevidence of the tradition of the church and the well understoodpractice and rules established in the 1662 ordinal (106).

23. According to statutory interpretation, it is improper to imposeupon amending legislation a judicial construction that isunchanged from that which belonged to the original legislation,ignoring the import of what has been deliberately added to oromitted from that legislation.

When we see in Acts in pari materia by the very same Legislaturewords added to those used in a prior enactment, it would besetting at nought the clear intention of the Legislature to givethe latter enactment the construction judicially placed on theearlier enactment. To do so would be to read out of the statuteexpressions which must be held to have been deliberatelyinserted to make the new Act differ from the old.6

24. Similarly, Viscount Simon explained the importance of particularphrases used in legislation.

When the legislature enacts a particular phrase in a statute thepresumption is that it is saying something which has not beensaid immediately before. The rule that a meaning should, ifpossible, be given to every word in the statute implies that unlessthere is good reason to the contrary, the words add somethingwhich would not be there if the words were left out.7

The removal of any reference to the age of the baptisands (namelyinfants), the removal of the phrase in the absence of the priest


and the removal of any distinction between the sacraments interms of the deacons role as an assistant to the priest, areaccordingly significant omissions and additions which cannot beignored as making provision for a development of the role ofdeacon, which was not contemplated in 1662.

25. Geddes & Pearce also address this matter in the following manner.

In what circumstances should a court refuse to adopt aninterpretation of a legislative provision that is otherwiseacceptable on the basis that such an interpretation could alsoproduce an anomalous result? In Ganter v Whalland [2001]NSWSC 1101 Campbell J supplied an answer to this question.At [35] he referred to the language of Mason and Wilson JJ inthe Cooper Brookes case and the words of Jordan CJ in Hall vJones and at [36] he suggested that:

From the strength of the language which these judgesemployed to describe the sort of consequences which willcause a possible construction to be rejected, it is apparentthat an anomaly arising from what, on all tests ofconstruction, is the correct construction of legislation, itmust be a very serious one, before the court is justified inusing that anomaly as a reason for rejecting what otherwiseseems the correct construction. Were courts to act otherwise,they would risk taking over the function of making policychoices which properly belongs to the legislature.8

26. One of the great confusions of the Appellate Tribunal is theirmisunderstanding of presidency and administration. They do notappear to grasp the distinction, and Archbishop Aspinall onlyconfounds the issues by politely recognising Dr Davies linguisticpreference, but then proceeding to assert without justification,the terms minister, administer, celebrate and preside at orover a service of Holy Communion are used here interchange ably(90). Yet whereas the words minister and administer reflectthe language of he BCP, neither celebrate nor preside occur in


any authorised liturgy of the Anglican Church of Australia, nordo they occur in the canons of our Church.

27. The deacons office is that of an assistant, or in the words of theBCP Ordinal, an inferior office. While the Tribunal makes muchof the fact that the wording of the ordination of presbyters is verydifferent from that used in the ordination of deacons, the reasonis obvious. The presbyter, as incumbent, is the leader of thecongregation, who oversees (or presides over, if we were to usethis term) the congregation. All ministry that the deaconperforms is by way of assistance to the presbyter. The deacon isresponsible to the presbyter and his or her ministry is in thatsense derivative. Thus deacons do not preside over the baptismof infants, the presbyter is the president and the deacons onlybaptise at the behest of the presbyter. Taking the place of adeacon is a recognition of this principle. The deacon is never thepresident, but the deacon can administer the sacrament. In thesame way a deacon can clearly administer a complete sacrament(namely, the baptism of infants) by way of delegation andassistance. My argument is that that service authorises thedeacon not only to assist in baptism but also to assist in the LordsSupper. Thus when the Tribunal frequently denies the view thatthe deacon cannot preside at the Lords supper, it unhelpfullyconfounds the terms, as I agree with this conclusion, but do notagree that presiding should be equated with administering, foronly the latter can be delegated.

28. Moreover, the Tribunal cites the use of the word priest in therubrics of the BCPHoly Communion as if to suggest that in someway this is decisive for disallowing deacons to administer theLords Supper. Yet such an opinion seems to be unaware that theword priest is also used in the rubrics of the BCP Service ofInfant Baptism. Yet the Ordinal does allow the deacon to baptiseinfants in the absence of the priest. Thus the authorisation of the


Ordinal supersedes the rubrics of the service. This principle ofrubrical heirarchy is therefore inherent in the BCP, and it is onthis principle that it is argued that the wording of the 1985ordinal can likewise supersede the rubrics of the BCP. The samemay be said concerning the reading of the Gospel in the HolyCommunion service, which according to the rubrics of BCP isreserved only for the priest, yet the Ordinal authorises the deaconto read the Gospel.

Archbishop Aspinalls Opinion

29. Archbishop Aspinall, in a separate but complementary opinion,also makes much of the fact that since BCP only authoriseddeacons to baptise infants, and claims that one should not readthe 1985 service as if it were allowing deacons to baptise those ofany age. This may come as a surprise to many readers to learnthat it is improper (if not illegal) for deacons to baptise teenagersand adults, despite this practice over many years in a number ofdioceses across Australia.

30. His argument fails at a number of points. It first fails to recognisethat the authorisation for deacons to baptise only infants was notbecause it was improper for deacons to baptise adults, but becausethere was no adult baptism service available in 1662. Thealternative service to infant baptism was the baptism of those ofRiper Years, not an adult baptism. Why so? Because during thethirteen years of the Commonwealth of England Anabaptistpractices had so infected the church, that a service which wasplanned for temporary utility in England was prepared, not foradults (as all adults would have already been baptised in theseventeenth century established church) but for those up to theage of thirteen (quaintly described as those of Riper Years). ThePreface to BCP indicates that the service was not so necessary in


times past but had become so due to the licentiousness of the latetimes. It also recognised it would be a useful service for baptisingnatives on the Plantations, but once the anomaly of unbaptisedmembers of the Church of England had been remedied, the normof infant baptism would return. That the Ordinal was not express -ing a theological statement that deacons could not baptise adultsis clearly refuted by its reference to Philip as a member of theorder of deacons, who baptised the adult Ethiopian eunuch (Acts 6:5; 8:38). Rather, it was expressing the perceived lack ofnecessity for deacons to baptise persons other than infants, oncethe anomaly introduced during the years of the Commonwealthhad been erased. Yet times had changed by 1985. A permanentdiaconate was contemplated as well as women assuming andremaining in that office. Hence, despite Dr Aspinalls claim to thecontrary, the radical revision of the Ordinal in 1985, by theomission of any reference to infants was expanding the age of thebaptismal candidates, in light of the changed conditions, asreferred to in the report from the Liturgical Commission inpresenting the canon to the General Synod.

31. However, another aspect to the authorisation of deacons tobaptise candidates other than infants is the Canon ConcerningBaptism 1992. It is widely recognised that this canon allowsdeacons to baptise candidates of any age. Indeed this is thewidespread practice in many dioceses for 20 years, although it isalso true that some diocesan bishops do not allow deacons tobaptise adults, notwithstanding the canon being in force in theirdiocese. However, it should be noted that the canon does notexpressly authorise deacons to baptise, rather it speaks of theminister, which in context is the ordained minster (includingdeacons), in the same way that the Solemnization of HolyMatrimony 1981 includes deacons (see paragraph 22 above). Withthe lack of express authorisation and the weight of the BCP


Ordinal, on Dr Aspinalls reasoning, it would appear that theCanon Concerning Baptism also does not permit deacons to baptisecandidates other than infants. For he declares concerning therestriction to diaconal baptism of infants only: That specifi -cation is provided by the well understood context: the customarypractice and rules established in the 1662 ordinal (106).

32. Dr Aspinall also criticises me for claiming that the 1985 serviceauthorises deacons to preach in a way that the 1662 Ordinal didnot. In 1662 a deacon could be ordained and licensed, but notnecessarily licensed to preach. Under the 1985 Service it doesnot specify that the deacon needs to be specifically licensed topreach, for the bishop gives him a New Testament, saying:Receive this sign of your authority to proclaim Gods word. InBCP the bishop outlines the duties of the deacon, including thewords: to preach, if he be admitted thereto by the Bishop.Likewise, at the ordination the bishop says: Take authority toread the Gospel in the Church of God, and to preach the same, ifthou be thereto licensed by the Bishop himself. The conditiondoes not express the condition in the words: if thou be licensedby the Bishop (which would be a tautology, as no deacon canexercise any ministry without a licence from the bishop). Ratherit adds the word thereto, indicating that the licence needsspecifically to include the authority to preach, before the deaconcould preach Gods Gospel. Under BCP, the bishop could exercisehis discretion to license the deacon without any authority topreach. The difference in the 1985 service is that the bishopcannot exercise any discretion to prevent a deacon frompreaching. Accordingly, in the 1985 service the bishop instructsthe deacons: preach the word of God in the place to which youare licensed. The distinction between BCP and the 1985 serviceis clear, despite Dr Aspinalls claim to the contrary.


Bishop Brains Minority Opinion

33. Although Bishop Brain expressed a minority opinion in the 2007Opinion concerning women bishops, he recognises this precedentfor allowing the plain meaning of the words to determine theintention of the legislation, even when weighed against thehistorical context in which the legislation is passed. Accordinglyhe defends the affirmative answer to Question 3.

34. However, Bishop Brain raises a number of other practices acrossthe Anglican Church of Australia that if not commonplace, havebecome accepted practice, with Episcopal consent, but withoutGeneral Synod approval (124). He then lists three such practices:

(a) the reservation of the sacrament (not just for extendedcommunion in nursing homes) for use in parishes withoutpriests (against the Article);

(b) the practice of giving newly ordained priests a chalice aswell as a Bible at ordination (against the rubric); and

(c) the praying of certain words prior to consecration thatwould imply an offering by the priest of bread and wine asworks of our own hands to God (against the order of ourservices).

35. Bishop Brain then goes on to say:

I raise these issues to ask the question: do we want theAnglican Church of Australia to be a Church that operates as afellowship-grace model or one that functions on a litigiousantagonistic model? (125)

Conclusion

36. It is difficult to predict how the synod of the Diocese of Sydneywill react to this advisory opinion of the Appellate Tribunal. Asthe then Primate, Archbishop Rayner, stated in his Presidential


Address to the 1998 General Synod:

[W]hat the Tribunal has handed down is an opinion, as distinctfrom a determination. A determination such as would be madein response to a reference concerning the validity of aparticular piece of legislation, has a definitive effect, whereasan opinion is advisory []

Some of us will be pleased with the majority opinion of theAppellate Tribunal, others will agree with the minority. Myhope is that we shall not retreat into separate bunkholes on theissue, but that we shall see our conflicting views as anincentive to pursue vigorouslyand togetherunderlyingquestions such as these:

How binding on the church are developments in doctrineand practice which occurred after New Testament times?How do we distinguish sound from unsound developments?

How are we to understand the relationship between wordand sacrament?

What are the respective ministries of clergy and laity?

Often our conflicting answers to questions like that of laypresidency [or diaconal administration] reflect differingunderlying assumptions which need to be articulated andexamined if we are to grow towards a common mind.

37. We conclude, as we began, with an expression of appreciation tothe members of the Appellate Tribunal for their work on thisreference. Although we respectfully disagree with their conclusions,it is the task of us all to continue to grow towards a common mind,no doubt including robust debate, but also with charity and grace.

ENDNOTES

1 In my view it is impermissible to define the orders of bishops and priest and deacons interms of function. Nor is it correct to interpret the section, as the assessors do, by forbiddingthis Church from altering the basic functions of bishops, priests or deacons. Young J, 1997Appellate Tribunal Opinion Concerning Diaconal and Lay Presidency, at 27.


2 [I]t is a highly dubious matter to contend that the Fundamental Declarations demandthe retention of any particular practice of the primitive church, including any primitivepractice of who may be permitted to preside at the eucharist. Clearly the intention of theFundamental Declarations here, as a knowledge of our contentious Constitutional historywill bear out, is simply to preserve Apostolic Faith and Doctrine. Nothing is said aboutpractice. The Bishop of Bathurst, ibid, at 81.3 Handley J, ibid, at 22.4 Cited in Pearce & Geddes, Statutory Interpretation in Australia, 6th ed, at 2.28. If a gapis disclosed, the remedy lies in an amending Act and not in a usurpation of the legislativefunction under the thin guise of interpretation. Lord Simmons in Magor and St Mellons RDCv Newport Corp [1952] AC 189 at 191, also cited by Pearce & Geddes, ibid. 5 Ibid, at 2.29. Pearce & Geddes also cite at 2.29 the opinion of Kirby J in James Hardie& Coy Pty Ltd v Seltsam Pty Ltd (1998) 159 ALR 268 at 288: Lord Diplocks approach tostatutory construction now prevails, not only in England, but also in Australia andthroughout the common law world. Today, unless driven to the result by unyielding words,no judicial satisfaction is to be derived from concluding that the manifest target of legislationhas been missed.6 Craies on Statute Law, 5th ed, 1952 at 133, cited approvingly by the New South WalesArbitration Commission in Bridge v Mattis [1953] 52 AR (NSW) 49 at 56-7, cited by Pearce& Geddes, Statutory Interpretation in Australia, 6th ed, at 3.33. 7 Hill v William Hill (Park Lane) Ltd [1949] AC 530, at 546-7.8 Pearce & Geddes, Statutory Interpretation in Australia, 6th ed, at 2.36.

THE CONSTITUTION, THE APPELLATE TRIBUNAL AND OTHER THINGS | 35

4The Constitution, the Appellate

Tribunal and other thingsRobert Tong

In this chapter I set out under several headings some short notesto help the reader reflect on the statement by the Sydney Synod thatthe Lords Supper in this Diocese may be administered by personsother than presbyters.

The constitution

In 1787, the Home Office appointed the Reverend Richard Johnson asChaplain to the new penal colony of New South Wales. The evangelicalEclectic Society and John Newton played a part in securing theappointment. Thus Christianity in its official Anglican expressionarrived with the First Fleet as part of the apparatus of government.Johnsons official position in the Colony was unique: while a clergymanof the Established Church he was on the payroll of the government andhe was a military chaplain appointed by commission in the same wayas the other senior officers. Johnson and his immediate successorchaplains also held the office of civil magistrate. These early chaplains


were under the spiritual jurisdiction of the Bishop of London.In 1824 an Archdeacon of New South Wales was appointed as part

of the diocese of Calcutta. In 1836 the Diocese of Australia waserected and William Grant Broughton consecrated as bishop. In1850, Broughton, as Metropolitan of Australasia and Bishop of Sydney,convened a conference1 with the other bishops in Australasia:Selwyn (New Zealand 1841), Nixon (Tasmania 1841), Short(Adelaide 1847), Perry (Melbourne 1847), and Tyrrell (Newcastle1847). The local organization of the church was a paramount topicfor discussion. Was it legally possible to convene a synod to makelocal rules or was local legislation necessary? In the end the churchin some states obtained legislation (eg Victoria & New South Wales)others (eg South Australia & Queensland) agreed to proceed byconsensual compact. Among other things, the bishops agreed thatthe Canons of 1604 would apply as far as local conditions permitted.

Overshadowing the conference was a decision of the Privy Council.2

George Gorham was an elderly clergyman who was suspected by hisBishop, Phillpotts of Exeter, of not holding the correct doctrine onbaptism. Gorham did not subscribe to the doctrine of baptismalregeneration. He was indicted for heresy and found guilty by anecclesiastical court. He appealed to the Judicial Committee of thePrivy Council and was acquitted. The Archbishops of Canterbury andYork sitting as Assessors concurred with the conclusion. The decisionreverberated around the English and colonial church. The centralconcern: is the Church an autonomous body deciding its owndoctrine and laws or, is it dependent on the State to decide thesequestions? The 1850 Bishops Conference resolutions were signed byall six bishops except for the resolution on baptism where theevangelical Perry issued his own statement.

In the decades following the 1850 conference there were a numberof law cases concerning the Church of England in the Cape Colony inSouth Africa which went on appeal to the Judicial Committee of thePrivy Council sitting in London.3 These cases had a seminal effect on


how the colonial churches of the British Empire made arrangementsfor self government. In summary, the Privy Council held that TheChurch of England, in places where there is no Church established bylaw, is in the same situation with any other religious body in nobetter, but in no worse position; and the members may adopt, as themembers of any other communion may adopt, rules for enforcingdiscipline within their body which will be binding on those whoexpressly or by implication have assented to them.4 This meant thateach colonial church had to make their own arrangements for thediscipline of clergy.

Before 1961, the Anglican Church of Australia (ACA) was known asthe Church of England in Australia and Tasmania. It was, according tothe Nexus Opinions, legally part of the Church of England.5 TheNexus Opinions were answers given by Australian and English KingsCounsel on questions originally posed by the General Synod of 1905about the legal relationship between dioceses in Australia andTasmania with the Church of England in England. Generally speakingevangelicals were willing to live with this arrangement. Partly this wasdue to their belief that the place of the Book of Common Prayer wasprotected and that the canon law of the Church of England outlawedthe ritual practices of the Oxford movement. But, the pressures for anautonomous Australian church could not be denied.

The present constitution of the ACA was 40 years in the makingwith many drafts and synods both General and diocesan. The story iswell told by John Davis in Australian Anglicans and their Constitution.The document is usually referred to as the 1961 Constitution becausethat is the year the several state parliaments passed the necessaryenabling acts. The constitution is clearly a compromise document.Throughout the period of its development, an underlying fear was thatthe staunchly Anglo-Catholic dioceses such as Newcastle, Adelaideand Brisbane would out vote Sydney and force the introduction ofunreformed ritual practices in church services. From the other side,there was the fear that Sydney would insist on unadorned 1662 Prayer


Book worship. The final form of the constitution preserves the primacyof the diocese over the General Synod.

The compromise in the constitution is twofold. The 1662 Bookof Common Prayer became constitutionally the only authorizedservice book for the Australian Church, however Section 4 of theconstitution gives power to a diocesan bishop, on a request from aparish, to authorize variations. This allows ritual practices which arevariations to BCP to be authorized at the diocesan level.

Secondly, safeguards are built into the canon making process.Normally canons of General Synod take effect within a month ofpassing. However, any canon of General Synod which deals withritual ceremonial or discipline does not become part of the law of adiocese until adopted by ordinance of that synod. Any canon adoptedcan later be excluded.

Additionally, if a canon states that it affects the order and goodgovernment of a diocese, then that canon requires adoption by adiocese before it takes effect in that diocese. Where a canon does notcontain that statement, a diocese can form the opinion that the canonaffects the order and good government or church trust property of thediocese. If the Standing Committee of General Synod agrees with thisopinion the canon does not take effect in the diocese. If the GeneralSynod Standing Committee does not agree with the opinion of thediocese, they refer the question to the Appellate Tribunal for decision.

The 1961 Constitution created a new entity known as the Churchof England in Australiawhich changed its name to the Anglican Churchof Australia in 1982. The text of the 1961 Constitution is set out as aschedule to acts of parliament of the various states and territories ofAustralia. The various State and Territory covering acts are similarbut not identical. This means that the reach of the constitution mayvary from state to state. In New South Wales, the Court of Appealheld in Scandrett v Dowling6 that the 1961 Constitution was bindingin respect to property. That is, the court would uphold propertydecisions made pursuant to provisions of the constitution. Other


provisions of the 1961 Constitution were, in the words of the court,obligations binding in foro conscientiae but without contractual force.The South Australian covering act has a provision which allows theAdelaide Diocese (and the Diocese of The Murray which was createdout of Adelaide) to withdraw from the General Synod constitutionalarrangements.

The Appellate Tribunal

A second issue of contention and compromise in the constitutionaldebates was the composition and function of an appeal tribunal. Clergydiscipline and heresy were the two main subjects of concern, the PrivyCouncil appeal cases from the Colony of Cape Town and the Gorhamdecision mentioned earlier provided concrete examples of theproblems. The Anglo Catholic position was that only bishops shoulddecide questions of doctrine and belief and accordingly bishops shouldsit alone or be a majority. The eventual compromise was a sevenmember tribunal comprised of three diocesan bishops and fourlawyers. A bishop and a lawyer elected by the House of Bishops, abishop and two lawyers elected by the House of Clergy and a bishopand two lawyers elected by the House of Laity. Questions of doctrineon which the Tribunal are agreed are referred to the House of Bishopsand a board of assessors for report. Interestingly, the Tribunal is notbound to follow any conclusion reached by the bishops or assessors.The expectation was that the Tribunal would have very little work.

The most easily understood function of the tribunal is acting as afinal court of appeal from diocesan tribunals, provincial tribunals andspecial tribunals (which hear charges against bishops) on matters offaith, ritual, ceremonial or discipline. Since 1961, there has been oneunsuccessful appeal from a clergyman on a discipline matter.

The constitution provides other ways a matter can come to theAppellate Tribunal. By section 29 they can be asked if a canon orproposed canon is inconsistent with the fundamental declarations or


ruling principles of the constitution. Whether a canon affects thegood order and government of the church within a diocese or thechurch trust property of a diocese are decisions for the Tribunal undersection 30. In recent years a number of canons have been referredunder this section. It is the provision in section 63(1) which has giventhe tribunal most of its work. That section allows any question arisingunder the constitution to be referred to the Appellate Tribunal fordetermination or opinion. The reference can be made by the Primate,by resolution of the General Synod, Provincial or a Diocesan Synodor by 25 members of the General Synod.

What is the character of the determination or opinion deliveredby the tribunal in answer to a question put to it under section 63(1)?For sometime now the prevailing view expressed in debate in theSydney Synod has been to characterize the reports of the tribunal madeunder section 63(1) as advisory opinions. This means that while dueand proper respect should be given to the tribunal and its work,answers given to questions asked are advisory and not binding. Thecontrary view is taken by the new President of the tribunal, amongstothers, and so the character and force of the answers remains acontested question.

Some other things

Recent questions posed to the tribunal go much further than theconstruction of words in the constitution. At a simple level, themixed composition of the tribunal requires lawyers to form views ontheological issues and bishops to form views on legal issues. But it ismuch more than that. Underlying assumptions in the constitution,whether political, legal or theological all form part of the mix inshaping any answer.

On most issues of high interest and before any formal referral tothe Tribunal, the bishops, in their role as diocesan bishops, may havealready addressed the issue. Also, most of the lawyers, as chancellors


or senior lawyers in their own diocese, may well have provided adviceon the question. Diocesan bishops are constitutionally members ofthe General Synod and most of the lawyer members of the tribunalare or have been elected representatives. They participate in themaking of legislation which will then be tested in the tribunal ofwhich they are members. There have been occasions when membersof the tribunal have entertained requests to stand down because ofperceived bias but so far no member has done so.

How final or binding is a decision or opinion? In a discipline casethe tribunal is limited to imposing one of the five sentences stated insection 60 of the constitution and even then the sentence is only arecommendation to the relevant bishop. While the bishop is boundto pronounce the sentence on the guilty clergyman, the bishop is atcomplete liberty to impose a lesser penalty or none at all. Hardly adecision which is final or binding! On the section 63(1) answers,there is no legislative obligation on the General Synod to follow theanswers and answers given by the Tribunal do not restrict the ambitof the legislative powers of the General Synod. Again hardly final orbinding. There is no General Synod apparatus to enforce answerswithout resort to the secular courts.7

On the wider canvas of Australian jurisprudence, and despitesome efforts, advisory opinions, as a present function of the judicialarm of government is almost unknown. With a domestic tribunal, afunction to interpret and construe the meaning of words in theconstitution of an association is of practical utility. However, if thisuseful constitutional provision is exploited to require answers toquestions which should be properly determined by the rule makingbody of the association the process becomes politicized so that thepersuasive power and moral force of advisory opinions is significantlyweakened and compromised.

Omitting the one discipline appeal, set out below are shortreferences to the opinions delivered by the tribunal. There is nouniform recording of the opinions or agreed method of citation.


Appellate Tribunal Opinions 1. 18 September 1972: On Section 4 of the Constitution relating todeviations from forms of service. s.63(1) referral by Primate at the requestof the Canon Law Commission and the Liturgical Commission

2. 25 September 1974: On the remarriage of divorced persons. s.31request by 34 clergy as well as s.63(1) referral by Primate

3. 22 December 1976: On questions related to AAPB. s.63(1) referralby Primate

4. 8 February 1980: On remarriage of divorced persons. s.63(1) referralby Primate

5. 8 April 1981: On 2 questions re proposed addition to Section 4 andSection 74 and alteration of Sections 27, 28, 29 and 30 of theConstitution directly or indirectly related to the Ordination of Women.s.63(1) referral by Primate.

6. 14 August 1985: On admission of women to holy orders. s.63(1)referral by Primate

7. 27 February 1987: On validity of Canon to authorize women deacons.s.30 referral by Primate

8. 6 June 1989: Opinion on s.17(5) and women deacons. s.63(1) referralby Primate

9. 2 November 1989: Opinion on the Ordination of Women to the Officeof Priest Act 1988 of the Synod of the Diocese of Melbourne (TheMelbourne Opinion)

10. 28 November 1991: Opinion on Eleven Questions Appertaining tothe Ordination of a Woman to the Order of Priest or the Consecrationof a Woman Bishop, (The Women Priests Opinion)

11. 7 March 1996: Reference concerning Diaconal and Lay Presidencys.63(1) referral by Primate


12. 24 December 1997: Questions on the conduct of church services.

13. 4 April 2007: Section 30 and Section 63(1) opinion re Special TribunalCanon 2004 and National Register Canon 2004

14. 26 September 2007: Opinion on Women bishops and the constitution

15. 8 March 2010 Section 30 opinion re National register Canon 2007;Special Tribunal Canon 2007 and Offences Canon Amendment Canon2007

16. 10 August 2010: Reference On The Legality Of The AdministrationOf Holy Communion By Deacons Or Lay Persons.

ENDNOTES

1 The conference is reported in Giles R, The Constitutional History of the Australian Church,Skeffington & Son Ltd, London, 19292 Gorham v Bishop of Exeter 1850 Moore's Special Reports 462. See Chadwick O, TheVictorian Church Part One 1829-1859, SCM Press Ltd, London, 1987 p 250-271 for backgroundand analysis.3 Long v Cape Town (Bishop of) (1863) 1 Moore NS 411;15 ER 756; Re Natal, Lord Bishop of(1865) III Moore NS 115;(1865) 16 ER 43; Bishop of Natal v Gladstone (1866) 3 Ch 1; TheBishop of Cape Town v The Bishop of Natal (1869) 6 Moore 2044 Long v Cape Town (Bishop of) (1863) 1 Moore NS 411; 15 ER 756 at 7745 Giles R, The Constitutional History of the Australian Church, Skeffington & Son Ltd,London, 1929 has a chapter on the nexus opinions.6 Scandrett v Dowling (1992) 27 NSWLR 4837 Scandrett v Dowling (1992) 27 NSWLR 483 at 542 citing Long v Cape Town (Bishop of)(1863) 1 Moore NS 411 at 461-462; 15 ER 756 at 774-775


5The theological necessity of

lay administration1Mark Thompson

The decision to refer the matter of lay and diaconal administrationof the Lords Supper to the Appellate Tribunal in 2009 involved anassumption that the questions surrounding this issue are primarilylegal rather than theological. After all, the Appellate Tribunal was setup to deal with matters of law. However, over the long years of debateon this subject, Sydney Anglicans have insisted that the criticalquestions are in fact theological and that our theology shoulddetermine our institutional structures and their legal expressionrather than the other way around. Enormous pressure has beenbrought to bear in order to dismiss this proposal as illegal, innovative,or unanglican, while the theological arguments put forward by Sydneytheologians in the course of the debate have not been engaged withseriousness. Nevertheless, some even in Sydney have asked whetherit really is necessary to move in this direction, especially given thestrident opposition that the mere mention of the subject seems togenerate in some quarters. The prior question is whether our currentpractice, including the absolute prohibition against anyone but a

presbyter administering the Lords Supper, is biblically andtheologically justified. It is the contention of this paper that aconvincing case can be mounted for the theological necessity ofchange in the direction suggested.

The theological necessity of this move arises from threeinterrelated facts. The first is the silence of the New Testament onthe subject of who should administer the Lords Supper in thechurches.2 There may well be a number of reasons for this. Theproclamation of the Lords death in the context of a memorial mealreceives only scant attention in the New Testament. Apart from thenarrative of the Last Supper in the Gospels, repeated in summary in1 Corinthians 11, there is very little said about the elements used, theprayers that are made, or who does what whenever the meal of thatnight is re-enacted in one way or other in memory of Jesusredemptive death for us.3 In other words, the question of who it iswho prays and distributes the bread and the wine on such occasionswould not seem to be an important one as far as the New Testamentis concerned. Our preoccupation with this question has other roots.

At one level we should admit that this silence cuts both ways. Whileinsistence upon a prohibition that cannot be found at all in the NewTestament is difficult to sustain, so too is an insistence that it is wrongfor any group so to order its life together that it designates certainmembers as appropriate persons to administer the Lords Supper(whether they be members of the local congregation authorised in someway or other, or those ordained to the presbyterate and serving in thecongregation). The silences of Scripture give room for freedom in theservice of love and edification and filling that silence with our own rulesand regulations (in either direction) is fraught with difficulty.

However, the chief difficulty arises when our practice is morerestrictive than the New Testament mandates. Such a restriction isoften theologised in unhelpful ways. When it is argued that only apresbyter may administer the Lords Supper, a distinction is oftenmade between presbyteral ministry and every other type of ministry.

THE THEOLOG ICAL NECESS I TY OF L AY ADMIN ISTRAT ION | 45


By virtue of ordination, the presbyter is given a special authoritywhich is necessary if the Lords Supper is to be authentic. Thepresbyter or priest stands in a special relation to God, able to standbefore God on behalf of the people and before the people on behalfof God. When such arguments are mounted, it is hard to avoid asacerdotal view of the presbyterate, an idea which undermines theunique priesthood of Christ and both the singularity and finality ofhis sacrifice on the cross. It is also hard to avoid the suggestion thatthis activity lies at the heart of presbyteral ministry. When others arepermitted to share in every other form of ministry exercised by thepresbyter (preaching, pastoral care, parish administration, leadingservices and even baptism) but are prohibited from administeringthe Lords Supper, the conclusion seems obvious that this is thedistinguishing mark of presbyteral ministry: this is the essence ofwhat it means to be ordained. Yet in the New Testament the ministryof the presbyter or elder is not in essence liturgical but pastoral. Theend result of an insistence on this prohibition, then, is confusion, oreven distortion, of the biblical pattern of ministry.

The second fact upon which the case for the theological necessityof this move is built is the relation of word and sacrament in the NewTestament and the Anglican formularies. As already observed, NewTestament teaching about the sacraments is rather limited.4

However, nowhere in the New Testament is Christian practiceseparated from Christian teaching. On the contrary, Christianpractice, both individual and corporate, is repeatedly anchored inChristian teaching and Christian teaching, it is insisted, must showitself in Christian practice. In both contexts in which the LordsSupper is discussed in the New Testament (the Gospels and1 Corinthians), participation is informed by teaching. It is verydifficult to sustain a separation between a teaching function and aliturgical function. Furthermore, at the heart of the apostolicrequirements for oversight or eldership in the congregation is afaithful adherence to the truth (in confession and in practice) and


the ability to teach it to others. The apostle did not identify a separateliturgical or sacramental function which would distinguish theministry of the elder from that of others. Eventually the AnglicanOrdinal would pick up this connection and seek to reflect it in thecharge to presbyters to be a faithful dispenser of the word of God andof his holy sacraments (AAPB).

This connection of word and sacrament, along with the prioritythe New Testament so obviously gives to teaching, renders deeplyproblematic any suggestion that a distinguishing mark of thepresbyter is the authority (and/or capacity) to administer the LordsSupper. It also raises important questions about a willingness toallow others to preach while insisting that only the presbyter mayadminister the Lords Supper. The encouragement of lay preachershas been a very welcome development over the last two centuries orso. It has enriched the life of the churches and given due recognitionto the fact that while presbyters must be gifted and capable teachers,they are not the only ones. However, if unordained people arepermitted to preach, with all the importance the New Testamentplaces on that function, why are they forbidden to administer theLords Supper? By retaining such a prohibition, do we not elevate theLords Supper above preaching the word of God? Is such a conclusionnot made all the more plausible by a willingness to allow laypeople tolead other parts of the liturgy, to pray and read the Bible, and yetrefuse permission for them to administer the Supper?

The separation of word and sacrament in this way raises furtherquestions about the nature of the church. It is possible to give greatimportance to the practice of baptism and the Lords Supper withoutsuggesting that these constitute the Christian gathering. Christianchurches are not, first and foremost, sacramental entities. They are,instead, gatherings of those God has called to himself to live togetherunder his word. Disciples of Christ are brought together by the Spiritto hear what God has to say to his people and to pray together to ourheavenly Father. In such a context the practice of baptism and the

Lords Supper is entirely appropriate and highly significant. However,every church gathering is an expression of the heavenly gatheringaround Christ (Heb. 12:2224) and an anticipation of the finalgathering of believers from a myriad of cultures, nations and languagesaround the throne of God and the Lamb (Rev. 7:910). Singling out theLords Supper as the indispensible core of Christian corporate life andinsisting that it may only be administered by those who have beenordained suggests that other occasions, in which Gods word is heardand believed and in which prayers are made to the Father who haspromised to hear us, but in which the Lords Supper is not conducted,are somehow deficient. So another result of this insistence on theprohibition against all but a presbyter administering the Supper isconfusion, or even distortion, of the biblical teaching about church.

Alongside the New Testament silence on the question of whoadministers the Lords Supper and its vital connection of word andsacrament in the life of the church, stands a third fact. The NewTestaments teaching on the nature of the Lords Supper itself drawsattention to the manner of our participation rather than the identityof the one who administers.5 The Last Supper was an anticipation ofwhat Jesus was about to do, couched in the context of the ancientPassover meal. He was to achieve a redemption that would cause theExodus to pale by comparison and it would be achieved by means ofhis broken body and his shed blood. Do this, Jesus said to hisdisciples, in remembrance of me (Lk 22:19). When the LordsSupper is mentioned in 1 Corinthians 11, once again the note ofremembrance is prominent (vv. 24, 25). Paul goes further, though,and speaks of how eating this bread and drinking this cup is in fact aproclamation of the Lords death until he comes (v. 26). The disorderin Corinth which he is addressing comes through unworthy eatingand drinking, not from an inappropriate person administering themeal (v. 28). He calls on those who participate to examine themselvesrather than to ensure that the one saying the prayers and distributingthe bread and wine has certain qualifications (v. 28).



Though questions remain for some, it is abundantly clear that inboth the New Testament contexts in which the Lords Supper ismentioned it is a congregational activity rather than a priestly activity.The validity of the Lords Supper does not depend on the personadministering it but on the attitude of those participating in it towardseach other and towards the atoning death of Jesus which is its properfocus. The proclamation of the gospel which Paul envisages as themeaning of the meal shared by the Corinthians, is a proclamation bythe congregation, not just by the individual who is leading the prayersand distributing the loaf and the cup. A similar point is made in theThirty-nine Articles of Religion, which insist that the efficacy of thesacrament depends not on the worthiness or otherwise of theminister but on Christs institution and promise (Article 26).

This biblical focus is compromised by our preoccupation with theidentity of the one who administers the Supper (or with the precisewords spoken or actions performed at the right moment). Thingsabout which the New Testament says little or nothing become centralin our practice and the more important things fade into thebackground. The insistence on only presbyters administering theSupper runs the risk of changing the character of the Supper, frombeing a corporate act of remembrance in which the critical factor is theattitude and focus of the participants in the light of Christs promise, tobeing something done for or on behalf of the congregation by aparticular person with distinctive qualifications and authority. Itbecomes an exercise in priestly ministry rather than an opportunity forall present to testify again of the mercy of Christ in which we trust fora full and complete salvation. The focus turns from the heart and mindof the recipients to the words and actions of the one administering. Atthis level too, the absolute prohibition of all but the ordained presbyteradministering the Supper brings in its wake confusion and distortion.

These three interrelated facts, the silence of the New Testament onthe identity of the one who administers, the connection of word andsacrament in the life of the congregation, and the New Testament

teaching on the nature of the Lords Supper generate pressure toabandon the exclusion of all but the presbyter from administeringthe Supper. An absolute prohibition has turned an exercise offreedom (the freedom of one group of Christians to order theircorporate lives in a way that does not compromise the teaching ofScripture) into a problematic opportunity for confusion anddistortion about the biblical pattern of ministry, the biblical teachingon church, and the biblical teaching on the Lords Supper itself. Suchconfusion is not merely hypothetical. It has been played out all overthe Anglican world. In this light, the call to abandon the prohibitionis both an act of love and a theological necessity.

These theological considerations (and others raised in the courseof the debate in Australia over the past thirty-five years) have beenvery largely glossed over by many who reject the suggestion that theprohibition we have been considering should be abandoned.Questions of order and legality have more recently been the focus ofattention. The reference to the Appellate Tribunal is further evidenceof this trend. For this reason it is important to draw attention againto the theological character of the debate in the diocese of Sydney.Our theology must determine our institutional structures and theirlegal expression rather than the other way around.

ENDNOTES

1 A fuller account, summarising the theological arguments that have been used over thecourse of the debates, is found in M. D. Thompson, Lay Administration: The TheologicalConsiderations, in The Lords Supper in Human Hands: Who Should Administer? (ed. by P. Bolt,M. Thompson & R. Tong; Camperdown, NSW: Australian Church Record, 2008), pp. 2135.2 This has been the conclusion of a number of reports from the Sydney DoctrineCommission, and it has been made by many others as well. T. Lloyd, Lay Presidency at theEucharist? (Grove Liturgical Studies 9; Bramcote: Grove, 1977), p. 29.3 There is some debate about what was in fact going on in 1 Corinthians 11 and the extentto which it mirrors the Holy Communion as it is structured by the Book of Common Prayerand later Anglican prayer books. That debate only marginally impacts the question we areconsidering (that of lay and diaconal administration of the Lords Supper). However, it isstriking that in a passage in which Paul is undoubtedly seeking to deal with disorder in thecongregational remembrance of the Lords death associated with some kind of meal, he



spends no time at all on the question of who should administer it.4 Part of the difficulty we have in this area may well arise from the attempt to bringtogether two practices attested in the New Testament (baptism and the Lords Supper),create a common category, sacraments, in w

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The Lord's Supper in Human Hands