Introduction
This paper considers the scope of s 6 of the Constitution of the Anglican Church of Australia (ACA) 1962, which provides:
This Church will remain and be in communion with the Church of England in England and with churches in communion therewith so long as communion is consistent with the Fundamental Declarations contained in this Constitution.
Section 6 has received very little, if any, attention in the writings of canon lawyers or in the Opinions of the Appellate Tribunal, the national tribunal constituted to hear and determine appeals from any determination by the Special Tribunal or an appeal from a diocesan or provincial tribunal and to deal with references in any matter relating to the powers of General Synod and involving questions of faith, ritual, ceremonial, or discipline matter in the Church.
The proper interpretation of s 6 has become important consequent upon the statement released by the Most Revd Dr Laurent Mbanda, Chairman of the Global Fellowship of Confessing Anglicans (GAFCON) on 16 October 2025, purportedly on behalf of the GAFCON Primates,Footnote 1 declaring that the Anglican Communion will be reordered (GAFCON Statement). In essence, the declaration asserts that there is ‘only one foundation of communion’, being the Holy Bible, which contains the ‘inerrant’ word of God. It cites Art 2 of The Jerusalem Declaration as ‘reflecting Art VI of the Articles of Religion’ in support of that proposition and asserts that those in the Anglican Communion who do not abide by Resolution I.10 of the 1998 Lambeth Conference (advising against the legitimizing or blessing of same-sex unions or ordaining those involved in same gender unions) have ‘abandoned’ the inerrant word of God. For that reason, the declaration rejects the Instruments of Communion, ‘which have failed to uphold the doctrine and discipline of the Anglican Communion’. It exhorts all Provinces of the Global Anglican Communion to remove any reference to being in communion with the See of Canterbury and the Church of England.
The GAFCON Statement has prompted the need to interrogate what it means to say that the ACA is ‘in communion’ with one or other church and to ask further whether, by operation of s 6, the ACA is, constitutionally, always in communion with the Church of England in England (CofE).
The Problem
The ambiguity in s 6 arises largely from the absence of punctuation. As a matter of grammatical structure, s 6 can be read in the following ways. First, the coordinate conjunction ‘and’ links the two ideas that the ACA remains in communion with the CofE and also with churches in communion with the CofE, the latter churches being qualified by the condition introduced by the subordinate conjunction ‘so long as’, namely that communion with such churches remains consistent with the Fundamental Declarations –
This Church will remain and be in communion with the Church of England in England.
And with churches in communion therewith so long as communion is consistent with the Fundamental Declarations contained in this Constitution.
Alternatively, the subordinate conjunction ‘so long as’ can be read as conditioning both the CofE and churches in communion with the CofE –
This Church will remain and be in communion with the Church of England in England
and with churches in communion therewith
so long as communion is consistent with the Fundamental Declarations contained in this Constitution.
The question is one of statutory construction, as to which, in Australian secular law, the applicable principles are well established: see, in particular; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd Footnote 2 ; Certain Lloyd’s Underwriters v Cross Footnote 3 ; and SZTAL v Minister for Immigration and Border Protection. Footnote 4 Those principles require close consideration of the text and the context and purpose of the text. In SZTAL, the High Court of Australia said:
The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. (Emphasis added.)
Construction
There is no reason why those same principles should not be applied to the construction of canon laws. Indeed, Principle 8 of The Principles of Canon Law Common to the Churches of the Anglican Communion Footnote 5 is consistent with the approach of the High Court to the construction of secular law statutes. It provides that laws should be interpreted by reference to their text and context and are to be understood according to the proper meaning of their words. Principle 8 provides further that if the meaning of a law remains in doubt, recourse may be had to ‘analogous texts, the purpose and circumstances of the law, the mind of the legislator, the jurisprudence of church courts and tribunals, the opinion of jurists, the principles of canon law and theology, the common good and the practice and tradition of that church and of the universal church’.
In Communion
It is useful at the outset to understand what it means to be ‘in communion’ with another church. In his Foreword to the second edition of The Principles, Archbishop Welby observed that the Anglican Communion is found in over 165 countries and forty-three provinces, representing more than 2000 languages and cultures.Footnote 6 The current articulation of the Principles can be traced back to 2001, following the publication of Professor Doe’s book in 1998, ‘Canon Law in the Anglican Communion: A Worldwide Perspective’.Footnote 7 Although not binding on churches within the Anglican Communion, as Gillian Davidson noted in her dissenting opinion in re Wangaratta Blessing Service, the fact that The Principles emerged from the work of 30 lawyers from 17 provinces makes them at least persuasive.Footnote 8
Part II of The Principles is concerned with the Anglican Communion, of which the Anglican Church of Australia is a member. The introductory words speak of the Anglican Communion being ‘held together by “bonds of affection”’ with a legal underpinning, ‘reinforcing the relationships between the churches that are linked historically with the ministry of the See of Canterbury’. Principle 10 describes the fellowship of the Anglican Communion as follows:
Principle 10: The fellowship of the Anglican Communion
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1. The Anglican Communion is a fellowship of churches within the One Holy Catholic and Apostolic Church, characterized by their historic relationship of communion with the See of Canterbury.
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2. The churches of the Anglican Communion are duly constituted national, regional, provincial churches and dioceses, and uphold and propagate the historic faith and order as typified in the Book of Common Prayer 1662 and its derivatives authorized in the several churches of the Communion.
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3. The relationship of ecclesial communion within the Anglican Communion is based on the communion of a church with one or more of the following: (a) the See of Canterbury; (b) the Church of England; (c) all the churches of the Anglican Communion; (d) all churches in communion with the See of Canterbury; (e) all churches which profess the apostolic faith as received within the Anglican tradition. (Emphasis added.)
The instruments of communion are explained in Principle 11.
Principle 11: The instruments of communion
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1. Each church acknowledges its adherence to Holy Scripture as containing all things necessary to salvation, the Apostles’ and Nicene Creeds, the sacraments of baptism and Eucharist, the historic episcopate, the threefold ministry of bishops, priests and deacons, and common patterns of worship.
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2. Each church recognizes that the churches of the Anglican Communion are bound together, not juridically by a central legislative, executive or judicial authority, but by mutual loyalty maintained through the instruments of Anglican unity as an expression of that communion.
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3. The relationship between member churches is governed morally by the conventions of the Anglican Communion and juridically by the law of each church.
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4. The unity of the Anglican Communion is served by four instruments of communion, namely the Archbishop of Canterbury, the Lambeth Conference, the Primates’ Meeting and the Anglican Consultative Council.
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5. The instruments of communion enjoy such binding authority within a church as may be prescribed by the law of that church.
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(Emphasis added.)
Principles 12, 13 and 14 deal with autonomy and interdependence, mutual respect and mutual hospitality, respectively.
Context and Purpose
Against this background, it is necessary to examine the context and purpose of s 6 in order to discern its meaning.
The Ruling Principles, of which s 6 is one, immediately follow the Fundamental Declarations, which state the following:
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1. The Anglican Church of Australia, being a part of the One Holy Catholic and Apostolic Church of Christ, holds the Christian Faith as professed by the Church of Christ from primitive times and in particular as set forth in the creeds known as the Nicene Creed and the Apostles’ Creed.
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2. This Church receives all the canonical scriptures of the Old and New Testaments as being the ultimate rule and standard of faith given by the inspiration of God and containing all things necessary for salvation.
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3. This Church will ever obey the commands of Christ, teach His doctrine, administer His sacraments of Holy Baptism and Holy Communion, follow and uphold His discipline and preserve the three orders of bishops, priests and deacons in the sacred ministry.
Justice Bleby has opined that the Fundamental Declarations ‘represent the fundamental truths of the Apostolic faith’ as compared with the Ruling Principles, which ‘represent the particular Anglican developments of those truths’.Footnote 9
In addition to s 6, which has already been set out above, the Ruling Principles provide, relevantly:
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4. This Church, being derived from the Church of England, retains and approves the doctrine and principles of the Church of England embodied in the Book of Common Prayer together with the Form and Manner of Making Ordaining and Consecrating of Bishops, Priests and Deacons and in the Articles of Religion sometimes called the Thirty-nine Articles but has plenary authority at its own discretion to make statements as to the faith ritual ceremonial or discipline of this Church and to order its forms of worship and rules of discipline and to alter or revise such statements, forms and rules, provided that all such statements, forms, rules or alteration or revision thereof are consistent with the Fundamental Declarations contained herein and are made as prescribed by this Constitution. Provided, and it is hereby further declared, that the above-named Book of Common Prayer, together with the Thirty-nine Articles, be regarded as the authorized standard of worship and doctrine in this Church, and no alteration in or permitted variations from the services or Articles therein contained shall contravene any principle of doctrine or worship laid down in such standard.
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5. Subject to the Fundamental Declarations and the provisions of this chapter, this Church has plenary authority and power to make canons, ordinances and rules for the order and good government of the Church, and to administer the affairs thereof. Such authority and power may be exercised by the several synods and tribunals in accordance with the provisions of this Constitution.
The Historical Context
Episcopal leadership in Australia commenced in 1836 when William Grant Broughton, who by Letters Patent dated 1836, was appointed the Archdeacon of the Archdeaconry of Australia, within the Diocese of Calcutta, and consecrated as Bishop of Australia in the Chapel of Lambeth Palance on 14 February 1836.Footnote 10 Broughton was subsequently appointed Bishop of Sydney and Metropolitan of Australasia in 1847.Footnote 11
In 1850, Broughton convened a meeting of the Australian bishops and Bishop Selwyn of New Zealand. The Minutes of that meeting record, inter alia, that an object of the meeting was to ‘consult together upon the various difficulties [caused] by the doubtful application to the Church in this Province of the Ecclesiastical Laws, which are now in force in England … [and] ‘to consider such questions as affect the progress of true religion, and the preservation of Ecclesiastical order in the several Dioceses of this Province’. The bishops recorded their opinion that the Constitutions and Canons of AD 1603-4 ‘form part of the established Constitution of our Church, and are generally binding upon ourselves, and the clergy of our respective Dioceses. Where they cannot be literally complied with, in consequence of the altered state of circumstances since the enactment of the Canons, we are of opinion that they must be, as far as possible, complied with in substance’.Footnote 12
At the Conference of Bishops held in Sydney from 23 November to 1 December 1868, attended by seven bishops (Barker of Sydney; Short of Adelaide; Perry of Melbourne, Tyrell of Newcastle, Tufnell of Brisbane; Thomas of Goulburn; Bromby of Tasmania), the Minutes record the first item of business as ‘the Present Relation of the Church of England in the Province of Australia to the Church at Home and the Best Mode of Maintaining such Relation’.Footnote 13 The bishops agreed to recommendations dealing with the Constitution of the Proposed General Synod. The object of such General Synod was stated to be ‘to maintain the relation of the Church in the Province of Australia to the United Church of England and Ireland, both at home and in the various Colonies; as well as to secure unity of doctrine and discipline between the several branches of the Church in that Province’.Footnote 14 Authorized functions of the General Synod were stipulated, which included, ‘To take measures for promoting inter-communion between the Church in the Province and other Reformed Episcopal Churches’.Footnote 15 It is clear therefore that, in 1868, a clear distinction was already being drawn between the CofE and other Episcopal churches.
The first Constitution for the then Church of England in Australia was settled by the First General Synod held on 10 and 11 October 1872 and was adopted on 23 October 1872. The Preamble records that it was expedient that the existing Dioceses, and others yet to be formed, within the limits of Australia and Tasmania be united for certain ecclesiastical purposes and to make provision for a General Synod of all such Dioceses of the Church ‘recently styled as the United Church of England and Ireland and now styled the Church of England in Australia and Tasmania’.Footnote 16 The powers of General Synod were set out in s 8 and included the following: ‘4. The communicating with the authorities of the Church in England and in the various Colonies on matters relating to the general well-being of the Church’; ‘5. The taking of measures for promoting intercommunion with other reformed Episcopal Churches so far as is consistent with the principles of the Church of England’; and ‘6. The regulating of the relations of the Church to the other branches of the Church of Christ’.Footnote 17
Purpose
Despite the adoption of its own Constitution, there remained a ‘legal nexus’ between the CofE and the Church of England in Australia and Tasmania. The General Synod of 1905 resolved to obtain legal opinion in both Australia and England on a series of questions relevant to understanding whether, and if so how, the legal nexus could be severed.Footnote 18 The tenth question enquired generally as to the status of the Church of England in Australia and Tasmania. For present purposes, the response can be summarized as follows:Footnote 19
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The Anglican Churches in Australia and Tasmania are not merely Churches ‘in communion with’ or ‘in connection with’ the Church of England, but are actual parts of that Church;
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It is an essential part of their [the Churches in Australia and Tasmania] Constitution that they are subject to the same laws as are binding on that Church in England [save for exceptional circumstances];
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Accordingly, in all matters of faith and doctrine, including conformity in public worship with the Book of Common Prayer, the Church in Australia and Tasmania must be regarded as regulated by the same standard as are in force in England;
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Tribunals constituted by Dioceses within Australia are lawfully constituted and the decisions of any one of them will be binding … being tribunals appointed by bodies, which, by their constitution, are part of the Church of England, it would be their duty to decide in accordance with the law of the Church of England as laid down by the English Courts and the Judicial Committee.
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(Emphasis added.)
In 1916, General Synod appointed a committee to consider whether the existing legal position of the Church in Australia was satisfactory as a permanent basis for Church fellowship. The Committee reported that it was not, and two contrasting courses of action were proposed: the promulgation of a draft of a new constitution or amendments to State Constitution Acts.Footnote 20 Discussion of the proposed solutions continued at the General Synod of 1921. A central committee was appointed to produce a ‘uniform document which … most nearly expresses the common mind of the Church in Australia’.Footnote 21
Chapter I of the draft bill contained the Declarations. These are instructive for present purposes. Section 2 provided:
The Church of England in Australia is a part of the Holy Catholic and Apostolic Church and is in communion with the Church of England in England, and this Church will not by its own act or will sever communion with the Church of England in England, nor with other national regional or provincial Churches maintaining communion with that Church.
(Emphasis added.)
Unlike s 6 of the Constitution, s 2 makes it clear that the Church of England in Australia would always remain in communion with the CofE, and that the extent to which it also remained in communion with other Churches depended on their remaining in communion with the CofE.
The remaining sections of Chapter I assert the adherence of the Church of England in Australia to (a) the Nicene and Apostles’ Creeds as the basis of faith; (b) the scriptures of the Old and New Testaments; (c) the Book of Common Prayer and the form and manner of making, ordaining and consecrating Bishops, Priests and Deacons in use in the CofE; (d) the Christian doctrine, sacraments and orders; (e) the authority of the Church to make canons, ordinances and rules for the order and good government of the Church.Footnote 22
The Declarations were reconsidered at the Constitutional Convention which began on 12 October 1926. The wording of s 2 was revised to read:
This church being a part of the One Holy Catholic and Apostolic Church and in communion with the Church of England in England will ever remain and be in communion with the Church of England in England and with national regional or provincial churches maintaining communion with that church, so long as communion is consistent with the solemn declarations set forth in this chapter.
(Emphasis added.)
The revised Draft Bill was passed at the 1926 General Synod. It was then referred to the Dioceses. All except Sydney accepted the draft.Footnote 23
As is notorious, it took almost another 40 years of consideration by various synods and committees before the Constitution was agreed. The debates revolved around three major issues: liturgical change, altered relations with other denominations and development of the Church in any way other than that specified by English law and structures.Footnote 24 The consequences of the ‘Red Book’ caseFootnote 25 for the development of the Church in Australia, which might have been expected to bring the opposing sides together, did not achieve that outcome in the immediate aftermath of the decision. By the 1950s, there remained contention over a proposed schedule of permissive variations to the prayer book and disquiet about the constitution of the Appellate Tribunal.Footnote 26
What does not ever appear to have been controversial was the Church’s relationship with the CofE as it had been expressed in s 2 of the Draft Bill of 1926, although discussions concerning the nature of the ‘Anglican Community’ and its continuing links back to the mother Church had continued over the decades.
At the Lambeth Conference in 1930, a paper was presented by Bishop Palmer (who had lately been Bishop of Bombay) in which he commented that the ‘Anglican Communion may be said to have come to self-consciousness with the summoning of the Lambeth Conferences’.Footnote 27 He observed that whilst the expression ‘Anglican Community’ has the advantage of brevity, the more correct expression as had been used in the documents of the 1867 and 1878 Lambeth Conferences is ‘the Churches in communion with the Church of England’.Footnote 28 As his discussion explicated, the term ‘Anglican Communion’ tends to lead one into error in thinking of the Anglican Communion ‘as a world-wide “Church” with certain peculiar tenets, like the Baptists or the Methodists’. Instead, drawing on one of Dr Pusey’s Spiritual Letters, Palmer explains a matter he describes as being ‘of the highest importance’, that
the Church of England (which is clearly indicated on the title page of the Book of Common Prayer) … is the Catholic Church in England adapting itself indeed to English temperament and creating and maintaining English usages, but nothing less than the Catholic Church, except in the one respect that it is only that part of the Catholic Church which is in England.
Importantly, Palmer recognized that this statement implied ‘a theory of the Catholic Church which is ancient and well-known’, being that which was current in the age of the Great Councils. Thus, the Catholic Church ought to be understood as ‘a federation of the Churches of the different regions’ with each region having ‘some natural unity … geographical, ethnical, historical, or political’. His Prefatory Note concludes with the observation that if the ‘Anglican Communion’ stands for anything, ‘stands for the purest traditions of the undivided Church…’.
Palmer sketched the development of the Anglican Communion from the Protestant Episcopal Church of America and other Dominions and Colonies, observing that at the time, the Church of Australia was ‘in the process of liberating itself from the legal nexus’ with the CofE. Referring to the missionary churches being organized in Japan and China, Palmer cautioned that if these United Churches come into being, they ‘will have little or no trace of Anglicanism about them’. He proposed a ‘Constitutional Ideal’ of the Anglican Communion. It included, in summary:
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The Church of England is the Catholic Church in England for those who are resident in England;
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Those Churches most like the CofE, founded in the Colonies of Great Britain, must interrogate whether their purpose is the same, i.e., to be the Catholic Church for the people of their lands, and not merely one of many sects;
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Where the Church of England is the only Catholic Church in a particular land with the express aim of expounding the whole Catholic truth and life, it may call itself the Church of that land, e.g., the Church of India;
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In countries where the Catholic Church is represented already by a Church which is the Church of that country, persons in communion with the CofE have no right to form a Church claiming territorial jurisdiction;
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The largest available body of opinion on questions as to whether any proposed action by a Church is compatible with its moral obligation to be bound by the sovereignty of Christ and to live within the fellowship of His Body is the Lambeth Conference, which only gives advice; therefore, uniformity cannot be expected in the Anglican Communion; that all Churches in communion with each other should be represented at the Lambeth Conference;
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The establishment of a court of theological experts is desirable;
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A standing secretariat under the Archbishop of Canterbury should be established to contribute to the common mind of the Church.
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(Emphasis added.)
The extent to which Bishop Palmer’s ideal directly influenced the development of the Constitution is not known, but it is clear that several themes are to be found in subsequent drafts. The 1946 Revised Draft contained s 5 in the same terms as had been accepted at the 1926 General Synod.Footnote 29 The Preface to the 1946 Revised Draft anticipated that the Archbishops and Bishops of the acceding Dioceses would consent to a declaration in terms, inter alia, ‘desiring to remain … in unity and in grateful and faithful fellowship with the Mother Church in England and with the whole Anglican Communion …’.Footnote 30
The 1954 Revised Draft of the Constitution of the Church of England in Australia prepared by the Constitution Committee in accordance with the directions given by the Committee at its meeting in November 1951 contains s 6 precisely in its current form.Footnote 31 There does not appear to be any readily accessible minutes of that meeting in November 1951 that might explain the revised wording.Footnote 32 Although various other provisions of that Draft were subsequently amended, s 6 was not.
The Preface to the Constitution, which was ultimately approved by the General Synod on 6 October 1955, provides some useful context.Footnote 33 Bishop Francis de Witt Batty of Newcastle, on behalf of the Constitution Committee, explained:
The Committee has endeavoured, in the spirit of the framers of our liturgy, and of the revisers of the Book of Common Prayer of 1662, so to order those portions of the Constitution which relate to the doctrine and worship of the Church of England as ‘to keep the mean between two extremes’; to make provision, on the one hand, for such reasonable alterations in our existing formularies as the circumstances of the time may demand; and, on the other, to exclude from such alteration anything that might ‘strike at some established Doctrine, or laudable Practice of the Church of England’.
It is apparent from the extract of the Preface set out above that the constitutional framers were at pains to preserve the ‘established Doctrine and laudable Practices of the Church of England’. This suggests that, in 1955, no substantive change to the revised wording of s 5 was intended.
Conclusion
As Bruce Kaye has observed,Footnote 34 the Constitution ‘lays out an English pedigree’. He points to the statement in the Ruling Principles that the Church ‘retains and approves the doctrines embodied in the Book of Common Prayer and the ordinal’. While noting also that the Constitution permits the Ruling Principles to be interpreted in the light of the long history of English Christianity and the experience of the Church since colonization, Kaye opines that ‘Rightly understanding the principles embedded in these documents means seeing them as particular statements in a particular time and place’. He says that by incorporating this historical principle in the constitution, it is made clear that ‘this Church is part of the long narrative of English history and the continuing history in Australia’.
The historical context of s 6, and its purpose revealed by the many synodical debates since the beginning of episcopal leadership in Australia, leads to the conclusion that, under the Constitution, the ACA is and remains always in communion with the CofE.
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