The development of a constitution for the Anglican Church of Australia over a period of 90 years from 1872 to 1962 was complicated by different religious emphases in the dioceses and the particular social and legal environment in which the church was operating. In the nineteenth century, there were colonies stretched around the perimeter of a vast continent, developing in their own way: the nation of Australia did not come into existence until 1901.Footnote ¹

Reflecting the federal structure of the Commonwealth of Australia, the Anglican Church of Australia is ‘a federation of sovereign dioceses’ and ‘not the unification of the Church of England in Australia in one organic whole.’Footnote ² The constitutional arrangements of the Anglican Church of Australia are unique within the Anglican Communion:

These constitutional arrangements are contained in section 30 of the Constitution,Footnote ⁴ which so far as is relevant, provides:

Section 30 of the Constitution was considered for the first time since the commencement of the Anglican Church of Australia on 1 January 1962, in references to the Appellate TribunalFootnote ⁵ concerning the Special Tribunal Canon 2004Footnote ⁶ and the National Register Canon 2004Footnote ⁷ which were passed by the 13th General Synod in 2004. These references were determined in April 2007.Footnote ⁸

The Special Tribunal Canon 2004 concerns the Special Tribunal, which is created by section 53 of the Constitution. It has jurisdiction under section 56(6) of the Constitution to hear and determine charges against any member of the House of Bishops and any bishop assistant to the Primate in that capacity of breaches of faith, ritual, ceremonial or discipline or such offences as may be prescribed by canon. Under section 74(9) of the Constitution, ‘discipline’ is defined as the obligation to adhere to, to observe or to carry out, among other things, certain rules of ‘this Church’.

The Special Tribunal Canon 2004 does not contain any declaration that it affects the order and good government of the Church within a diocese. Part II of the Canon provides for the creation and appointment of, and the powers and procedures to be followed by, the Episcopal Standards Commission (ESC). Part III provides for the appointment and functions of the Director of the ESC. Part IV deals with the handling of complaints, their investigation by the ESC and the institution of proceedings by the ESC against a bishop. Part V provides for the method of appointing members of the Special Tribunal and for procedures to be followed by the Special Tribunal. Part VI provides for how a charge is to be brought before the Special Tribunal: it can only be brought by the ESC. Part VII provides for the suspension pending the hearing of charges of a bishop who is not the bishop of a diocese. Part VIII specifies certain procedures to be adopted by the Special Tribunal, and Part IX provides for the procedure to be followed on deposition from orders where such a recommendation is made by the Special Tribunal.

The National Register Canon 2004 was passed by the General Synod as part of its response to assist in preventing sexual misconduct in the Church. It does not contain any declaration that it affects the order and good government of the Church within a diocese. Under the Canon, there is to be created a national register of clergy and laypersons. Section 8 of the Canon provides:

The Primate made four references to the Appellate Tribunal concerning the Special Tribunal Canon 2004: one each pursuant to section 63(1) of the Constitution at the request of the Provincial Council of the Province of Victoria, and the Synod of the Diocese of Wangaratta, whether ‘proviso (a) to section 30 of the Constitution … preclude the Special Tribunal Canon 2004 of General Synod coming into force in a diocese unless and until the diocese by ordinance adopts it?’; one each pursuant to section 30(c)(iii) of the Constitution at the instance of the Standing Committee of the Diocese of Sydney and the Council of the Diocese of Wangaratta, whether the provisions of the Special Tribunal Canon 2004 affect the order and good government of the Church within those dioceses.

The Primate made a reference to the Appellate Tribunal concerning the National Register Canon 2004 pursuant to section 30(c)(iii) of the Constitution at the instance of the Standing Committee of the Diocese of Sydney, whether the provisions of the National Register Canon 2004 affect the order and good government of the Church within the Diocese of Sydney.

After considering a number of authorities in other contexts in which the word ‘affect’ had been construed, the Appellate Tribunal found that a narrow, rather than wide, interpretation of the word ‘affect’ is warranted in provisos (a) and (c) of section 30 of the Constitution:

The Appellate Tribunal found that the provisions of the Special Tribunal Canon 2004 affect the discipline of the Church in two respects (the obligations on a bishop under Parts III and VIII to cooperate with the ESC and not to mislead, delay or obstruct it, on pain of some harsher recommendation by the Special Tribunal than might otherwise be the case; the power under Part VII of the President of the Special Tribunal in certain circumstances to suspend one of these bishops from the duties of office pending determination of a charge). It followed that the Special Tribunal Canon 2004 is deemed to affect the order and good government of the Church within a diocese, and does not come into force in any diocese unless and until the diocese by ordinance adopts the Canon.

The Appellate Tribunal found that the provisions of the Special Tribunal Canon 2004 affect the order and good government of the Church within the Dioceses of Sydney and Wangaratta in one respect (the inability of persons within a diocese to promote a charge in the Special Tribunal against their diocesan bishop). It followed that the Special Tribunal Canon 2004 does not come into force in the Dioceses of Sydney and Wangaratta unless and until it is adopted by ordinance of the diocesan synod of those respective dioceses. The consequence of this determination is that one of four different procedures could be applicable to a charge before the Special Tribunal, depending on whether the diocese has adopted the Special Tribunal Canon 2004 or one of its predecessors. To overcome this problem, the Special Canon Tribunal Repeal Canon 2007Footnote ⁹ and the Special Tribunal Canon 2007Footnote ¹⁰ were passed at the 14th General Synod in October 2007.

The Appellate Tribunal found that section 8 of the National Register Canon 2004, which requires an employee of a diocese to perform a rather mechanical task of reporting to the General Secretary four times a year what he or she knows, does not ‘affect’ the order and good government of the Church within the Diocese of Sydney. It does not in any direct way influence, alter or shape how the Diocese is ordered or governed. To overcome problems in the application and scope of the National Register Canon 2004, the National Register Canon 2007Footnote ¹¹ was passed at the 14th General Synod in October 2007.

This determination of the Appellate Tribunal has clarified the powers of the General Synod. Provided that it does not in any direct way influence, alter or shape how a diocese is ordered or governed, a Canon of the General Synod will come into force within a diocese without diocesan adoption. This determination will assist in creating a greater degree of national coherence within the Anglican Church of Australia. National coherence is especially important in areas such as the Church's response to child abuse and sexual misconduct, where uniform and comprehensive policies and procedures in the 23 dioceses are critical to ensuring the physical, emotional and spiritual wellbeing and safety of all people with whom its clergy and church workers have contact.