The Appellate Tribunal is constituted under Chapter IX of the Constitution of the Anglican Church of Australia.Footnote ¹ It has a membership of seven persons, comprised of three diocesan bishops and four legally qualified lay persons (section 57(1)). Its jurisdiction includes determining, and giving opinions as to, questions which arise under the Constitution (section 63(1)).

In its opinion given on 26 September 2007, the Appellate Tribunal determined two questions relating to the consecration or installation of a woman priest as a diocesan bishop in the Anglican Church of Australia.Footnote ² The questions had been referred to the Tribunal by the Primate at the request of 25 members of the General Synod pursuant to section 63(1) of the Constitution.

A statutory majority of the Appellate TribunalFootnote ³ decided that there was nothing in the Constitution of the Anglican Church of Australia that would prevent the consecration or installation of a woman priest as a diocesan bishop in a diocese which had adopted the Law of the Church of England Clarification Canon 1992, provided that the woman had been duly elected as the diocesan bishop and had had her election duly confirmed in accordance with the criteria for canonical fitness set out in section 74(1) of the Constitution. A majority, but not a statutory majority, decided that the consecration of a woman as an assistant bishop in a diocese, while not precluded by the Constitution, was precluded by the Assistant Bishops' Canon 1966 in its present form, so long as it remained in force in that diocese.

Two constraints had previously prevented the consecration of a woman as a bishop in the Anglican Church of Australia. The first was imposed by section 71(2) of the Constitution, which provides:

The second constraint was imposed by section 8 of the Constitution, when read with the original definition of canonical fitness as it related to a person elected as a bishop contained in section 74(1) of the Constitution. Section 8 provides:

The original definition of canonical fitness in section 74(1) provided: ‘… the qualifications required in the Church of England in England for the office of a bishop, at the date when this Constitution takes effect’. This definition was amended with effect from 5 June 1995 to provide:

At the time of the Reference on Women Bishops, most assistant bishops were appointed under the Assistant Bishops' Canon 1966, section 5 of which provides:

Not all dioceses had adopted the Assistant Bishops' Canon 1966. When it was passed, the interpretative guide was General Synod Rule XIX (Rule re Interpretation) which provided: ‘Section 74 of the Constitution shall apply to the Canons the rules and Standing Orders of Synod unless the context or subject matter thereof indicates the contrary.’

In 1991, the Appellate Tribunal held that ‘the law of the Church of England’ as at 1 January 1962 prohibited women from ordination to the diaconate or the priesthood or consecration to the episcopate, and that this rule of English ecclesiastical law was part of the inherited law of the several dioceses. Further, the Appellate Tribunal held that General Synod could abrogate the inherited law as to the gender of deacons, priests and bishops, relying on the mandate referred to in the concluding words of section 71(2) of the Constitution and its general legislative powers.Footnote ⁴

In 1992 the General Synod passed the Law of the Church of England Clarification Canon 1992. This Canon provides that any law of the Church of England that was applicable to and in force in the diocese immediately before adoption, and that prevented the ordination of a woman to the office of priest, ceases to be applicable to or in force in that diocese.Footnote ⁵

The leading opinion of the statutory majority was that of Justice Keith Mason.Footnote ⁶ He held (at paras 14–16) that the common law presumption that, in the absence of an indication that a reference to another piece of legislation was to be ambulatory, the reference is taken to be to the legislation in the form it took at the date when the referring legislation was made was applicable to the Assistant Bishops' Canon 1966. This meant that the original definition of canonical fitness in the Constitution continues to apply, and so it would not be possible for a female to obtain confirmation of canonical fitness under that Canon. This situation could only be overcome by amendment of the Canon or (in a particular diocese) by exclusion of the Canon by ordinance of the diocesan synod under section 30(d) of the Constitution.

Justice Mason (at paras 17–39) considered the appointment, election and confirmation of bishops in England as at 1 January 1962.Footnote ⁷ Canon law imposed a personal disqualification upon a woman being consecrated as a bishop. He then (at paras 40–42) considered the appointment of bishops in the Colonial Church.Footnote ⁸ Thereafter (at paras 43–49) he considered the election and confirmation of diocesan bishops under the Constitution. Canonical fitness included the qualification of being male.

At paragraphs 50–58, Justice Mason explained that, in dealing with the changed definition of canonical fitness as from 1995, the impact of an enacted law depends upon what it states, fairly construed, not upon what may or may not have been in the minds of those voting in the legislative body. The central issue was the operation of section 8 of the Constitution in the context of the new definition.

After dealing (at paras 59–97) with some unhelpful submissions, at paragraph 98 Justice Mason considered that it would be absurd to construe section 8 of the Constitution as if it envisaged that the validity of election depended on the pre-1995 criteria of canonical (un)fitness. He said (at para 100) that, as regards bishops, the original definition in section 74(1) overlapped with section 71(2)'s incorporation of the ‘Phillimore rule’Footnote ⁹ as part of the law of the Church of England inherited by the Australian Church in 1962. In view of this, it was impossible to envisage why the framers of the Constitution would have intended to allow the definition of ‘canonical fitness’ to be amended by constitutional processes (as happened) while intending that a ‘qualification’ incorporated indirectly through section 71(2) would continue to operate with different effect.

The President (Justice Peter Young) and the Deputy President (Mr M F Horton), while agreeing with most of Justice Mason's opinion, disagreed with his final paragraphs. Having regard to the factual matrix, the President (at para 12) found it impossible to reason from possible absurdities or from the imputed intention of the framers of the Constitution that an alteration to the definition of canonical fitness had altered the substantial law and had altered the fundamental rule continued in force by section 71(2). At paragraphs 17–26, he discussed the rules for appointment and confirmation of bishops in the Church of England.Footnote ¹⁰ The Right Reverend Peter Brain, Bishop of Armidale, concluded that the definition of canonical fitness in section 74(1) must be understood in accordance with the Pastoral Epistles that a bishop should be a male person.