Introduction
The current law of the Church of the Province of Aotearoa, New Zealand and Polynesia defines the church’s nature as a constituent member of the Anglican Communion.Footnote 2 At the same time, the Anglican Church’s constitutional structure and laws, as well as its general laws, reflect its place in New Zealand’s secular constitutional structure and history.
The current (1992) Constitution of the Church in New Zealand has a comprehensive statement of its reasons for existence.Footnote 3 The Constitution itself provides a justification for these internal laws.Footnote 4
In the Anglican Communion, generally, further laws regulate the churches’ relations with the State and with non-members. The sources of these laws are different in countries which have — or have formerly had — established churches; yet, even in New Zealand, the Church and State are not as completely legally separate and distinct, as they may, at first, appear.
Churches, in their relationship with the State, may be classified as established, quasi-established,Footnote 5 dis-established, or non-established. All but the first are normally based on the principle of consensual compact (or ‘voluntary compact’ as it is called in the inaugural 1857 and the current 1992 constitutions), in which it is the voluntary membership of the Church, which alone imposes binding or mandatory obligations upon members.Footnote 6 The Church in New Zealand may be broadly regarded as non-established; yet, for several reasons this fails to fully explain the true nature of the Church in this country. In part, this is because the State may be still characterized — or at least was until comparatively recently — as de facto Christian,Footnote 7 in the sense that it is a ‘Christian Society under the aspect of legislation, public administration, legal tradition and form’.Footnote 8 It is, to quote from a writer on the somewhat dissimilar American situation, ‘a nation whose predominant institutions, including government, reflect Christian pre-suppositions and Christian morality’.Footnote 9 This has led to a continuing legal relationship between Church and State, as had the very forms through which the Church regulates its own affairs (such as trusts). The question of whether any state can be described as Christian — whether or not the Church officially established — is a more difficult question, and one for which the answer depends very much upon the precise meaning of the terms used. Nor is it clear whether the influence of the State has been intrusive and unwanted, sought and desirable, or an unavoidable reflection of evolving political life.
In this article, we will examine the sources of secular authority in the church — in particular secular legislation. We will also examine the founding of the church in New Zealand in the nineteenth century, and some aspects of the nature of its relationship with the State. The example taken is the Anglican Church. This is not unique in its treatment, except insofar as the breadth and depth of legislation which has been enacted. The Roman Catholic Church in New Zealand relied to a lesser extent upon secular legislation,Footnote 10 in part because of its post-Reformation tradition as a non-established Church in England, and in part because of its more fully developed canon law and a comparatively active judiciary.Footnote 11 The importance of this study lies in the fact that most Anglican provinces, and other denominations in the Commonwealth and beyond, share the same form of reliance on State laws as does the Church of the Province of Aotearoa, New Zealand, and Polynesia.
Dis-Established and Non-Established Churches and the Doctrine of Consensual Compact
The Church of England remains formally established by law in England.Footnote 12 Some of the other churches of the British Isles,Footnote 13 and those of the West Indies,Footnote 14 and India,Footnote 15 have been dis-established.Footnote 16 In some cases this was because of changing political circumstances, in others for more overtly theological reasons. Since the church was never formally established in New Zealand this category need not detain us longer.
Most churches within the Anglican Communion (and indeed beyond it) are non-established, in that they are not formally recognized or supported by the State, do not enjoy a privileged position with respect to other churches, and were never in that position, vis-à-vis other bodies. The churches are, within the Commonwealth, broadly based upon the principles which eventually governed the status of the dissenters in England.Footnote 17 Thus, in the absence of formal regulation by the State, or the recognition by the State of church laws and institutions, the non-established Anglicans, like the non-conformists in earlier centuries in England, were governed on the basis of consensual compacts — or associations of co-religionists.Footnote 18
King Charles I, by Order-in-Council in 1634, placed all British subjects overseas under the ecclesiastical jurisdiction of the Bishop of London. The East India Company was responsible for the payment of salaries to a bishop and any archdeacons, if the Government appointed any.Footnote 19 By letters patent of May 2, 1814, the Bishop of Calcutta was appointed, and granted full power and authority to exercise a bishop’s spiritual and ecclesiastical functions as prescribed by ecclesiastical laws in England.Footnote 20 On May 27, 1824, this jurisdiction was extended to those lands under the Charter (rather than the Government) of the Company — then including Australia and Van Diemen’s Land.Footnote 21 In 1835, these lands were no longer mentioned in the letters patent of the Bishop, and so presumably passed back to the inherent jurisdiction of the Bishop of London.Footnote 22
Samuel Marsden’s involvement in New Zealand was largely through the Church Missionary Society, which was a voluntary society (with no establishment status within the Church of England). It is also notable that Broughton visited New Zealand in 1838–39 and undertook episcopal ministrations on the basis of his own episcopal authority, by virtue of his consecration rather than because of the legal status of the Church.Footnote 23
George Augustus Selwyn was appointed the first Bishop in New Zealand in 1841.Footnote 24 After the establishment of a colonial government in New Zealand in 1840,Footnote 25 letters patent, modelled upon those of the Bishop of Australia, of which New Zealand had been a suffragan,Footnote 26 erected the latter country into a see on October 14, 1842.Footnote 27 There was officially no voluntary compact at this time; but neither was the Church formally established. The status of the Bishop in New Zealand, in relation to the Bishop of Australia, was to change several times in the first 15 years.Footnote 28
The Bishop was not entirely without official support. The payment of half of Selwyn’s salary by the Colonial Office was one of the links back to the Government in England. He was also given the status of number three on the precedent list and was, for a period, a member of the Legislative Council. Gladstone, as Colonial Secretary in 1846, raised the possibility of ‘voluntary compact’, being a better method to settle the status of the colonial Church than legislation action.Footnote 29
In 1850, a group of New Zealand laity led by the Governor, Sir George Grey, wrote to Bishop Selwyn asking for the establishment of a formal church government.Footnote 30 Grey proposed a General Convention of bishops, in an Upper House, and elected deputies of clergy and laity in a Lower House. Neither house would be empowered to alter the doctrines or ritual of the Church of England, or the Authorized Version of the Bible.Footnote 31
Selwyn agreed with the broad basis of the proposal of Grey and the others.Footnote 32 This was not entirely surprising, since Selwyn attended an important conference of Australasian Bishops in 1850,Footnote 33 and was one of its leaders.
But Selwyn was not entirely sure of the possibilities regarding a constitution. In his 1853 Pastoral Letter, he wrote that he ‘was still looking to England to gain “the consent of the heads of the State and of the Church in England to some form of Church Constitution adapted to our circumstances and wants” ’.Footnote 34 Only when the three attempts to define the legal status of the Church by parliamentary legislation failed (1852, 1853, 1854) — and with the necessary English legal advice that the Church could constitute itself as a voluntary compact — did Selwyn finally feel he could go ahead on that basis.
The instrument by which the broad aim outlined in 1850 was to be achieved was the 1857 Constitution, which was not however enacted by Parliament or expressly consented to by the Crown.Footnote 35 Meanwhile, attempts during 1852–54 to obtain an Imperial Act for the Church in Australia had failed.Footnote 36 In part, this was due to reluctance by the Imperial Parliament to legislate for those parts of the empire which had their own legislature, a stage just reached in New Zealand by this time.Footnote 37 But it was also due to the belief that an attempt was being made to obtain exclusive privileges for the Church of England.Footnote 38 The irony was that ‘Establishment’, by this time, meant that the colonial Church had more restrictions upon it than the Roman Catholic Church, or ‘non-conformists’,Footnote 39 and few, if any, advantages. The debate about whether and when the Church of England was established in Australia, and when it was no longer established, is beyond the scope of this article. There is a degree of disagreement about this question, unlike the situation in New Zealand.
Meanwhile, on June 13, 1857, at a General Conference held at Auckland, the BishopsFootnote 40 and many of the clergy and laity of the Church in New Zealand,Footnote 41 including missionary clergy, agreed to a Constitution for the purpose of associating together by voluntary compact as a branch of the ‘United Church of England and Ireland’.Footnote 42 The Constitution declared the Doctrine and Sacraments, which the Church held and maintained,Footnote 43 and provided for a General Synod.Footnote 44 ‘[F]undamental provisions’ (mentioned under ‘PROVIDED THAT….’) were entrenched in the Constitution as a means of safeguarding the doctrinal and liturgical integrity of the Church in its connection with the mother-Church in England. Fundamental provisions could not be changed, thus preserving the identity of the Church as part of the wider Church of England.
In accordance with the then still current imperial practice, the bishop received a letter patent from the Crown when he became a metropolitan in 1858. However, following the example of the South African bishops, this was surrendered in 1865.Footnote 45
Thus, in New Zealand, the legal basis for the Church was consensual compact, rather than legislative enactment,Footnote 46 although specific parliamentary Acts were needed to provide for trusts and similar ancillary institutions.Footnote 47 At least until 1865 the royal supremacy was acknowledged, but thereafter, under the influence of wider imperial developments, this became largely inapplicable.Footnote 48
The ‘Christian’ influence on New Zealand in the nineteenth century was pervasive. But they were partially countered by the determined effort of many parliamentarians to avoid privileging any one denomination over another. That is reflected in a number of parliamentary debates. These include the opening of sessions with prayer, the refusal to accept responsibility for Bishop Selwyn’s stipend when the Colonial Office discontinued payment, and the 1877 Education Act with its ‘secular’ clause.Footnote 49
In New Zealand, by contrast to the situation in Australia, the Church early assumed independence, and was comparatively less concerned with the nature of the underlying basis of authority — at least until its constitutional debates and reforms of the late twentieth century. Broughton’s episcopal acts in New Zealand, and Selwyn’s calling of synods in 1844 and 1847 were on the basis of inherent episcopal powers through consecration. These actions challenged the supreme authority of the Crown. Selwyn himself engaged in a long consultative process both in New Zealand and in England between 1847 (his second synod) and 1857.Footnote 50 Selwyn was very cautious in moving until he was clear from his consultations in England that the Church could go ahead on the basis of voluntary compact.
The Applicability of Pre-Existing Canonical Systems
Not only is it necessary to ascertain the nature of authority in a colonial Church, it is also necessary to establish precisely what pre-settlement English laws applied, and what their effect was. Various devices are employed by churches to ensure the binding effect of church laws and the rights and duties conferred by them.Footnote 51 These devices may be applied to clergy, lay officers or the lay membership generally. They include overriding principles containing general statements that the law of the Church is binding, and declarations, promises or oaths by which an undertaking is made to assent to or conform to the law of the Church or the decisions of its tribunals. There may also be provisions requiring compliance with executive directions (typified by the doctrine of canonical obedience).Footnote 52 The most ancient of these are the canons, which were preserved, at least in partially pre-settlement form, in at least some overseas churches.
Unlike in England, in most of the overseas churches canon law is binding on the laity, at least those laypersons who are members of the Church.Footnote 53 However, whether this is legally binding — in the sense that it is justiciable in the secular courts — or merely morally binding, or enforceable in the Church courts or tribunals, is a further issue.Footnote 54 The question remained, however, as to just what comprised the canon law. In the Protestant Episcopal Church of the United States of America, English ecclesiastical law continues for some purposes only,Footnote 55 and English canon law does not now apply in Australia.Footnote 56 Since these churches are consensual bodies, these pre-settlement laws are not automatically enforceable. The applicable canon law was generally that new canon law created by the provincial or national churches, or their dioceses. Indeed, as the diocese may have their own canon law, there is considerable scope for differences across a single province.
Even consensual associations are subject to the secular power, even if ‘the…Church of England…is not a part of the constitution in any colonial settlement’.Footnote 57 The Queen in Parliament has authority ‘over all persons in all causes, as well ecclesiastical as temporal, throughout her dominions supreme’, for Parliament can legislate for the Church as it can for any part of society. This is a consequence of the Reformation and the development of parliamentary supremacy,Footnote 58 and was recognized by Selwyn and Grey,Footnote 59 and later in the Constitution of the Church.Footnote 60 However, since 1857 the Church in New Zealand made its own canons, which have supplanted and replaced the pre-existing canon law of the Church of England.Footnote 61
The Anglican Church in New Zealand
The Church in New Zealand may be classified broadly as quasi-established in the sense that whilst having the status of a contractual society, there are close legal links between the Church and State. The authority of internal Church law rests, at least in part, upon the existence of secular legislation, and secular legislation expressly and directly regulates some of the temporal affairs of the Church.Footnote 62
Several parliamentary statutes ‘declare and define the Powers of the General Synod of the Church of the Province of New Zealand’,Footnote 63 they govern the alteration of the formularies of the Church,Footnote 64 and they regulate its trust property,Footnote 65 its (former) missionary diocesesFootnote 66 and its clergy pensions funds.Footnote 67 The secular courts may intervene to ensure compliance by the Church with its own internal law and with State law applicable to the Church.Footnote 68 In New Zealand, the secular courts will enforce the constitution and rules of churches,Footnote 69 though they will be reluctant to intervene in church matters unless there are valid and strong reasons for doing so.Footnote 70
However, even where a statute has been passed specifically relating to a church or religious organization and its property, this does not involve parliamentary recognition of the institutions and procedures established by the rules of the Church. The institutions and procedures are still seen as private or domestic.Footnote 71 But even though the institutions may be private, nevertheless they are relying, for at least a part of their legal authority, on the laws of the State.
Even within its own jurisdiction the authority of the Church is limited. With respect to its fundamental provisions, ‘it shall not be within the power of the General Synod, or of any Diocesan synod, to alter, revoke, add to, or diminish any of the same’.Footnote 72 In New Zealand, this law is fundamental in the sense that it is unalterable by the Church acting alone — though it may be altered in accordance with the provisions of an Act of Parliament.Footnote 73 The limitation on the legislative competence of the Church was stated in qualified terms. It was not comparable to the superficially analogous limited competence of the (colonial) New Zealand Parliament; rather, its origins lay much deeper. The Constitution states that the fundamental provisions (including the Book of Common Prayer, the Form and Manner of Making, Ordaining and Consecrating of Bishops, Priests and Deacons, and the Thirty-nine Articles of Religion) might not be altered.Footnote 74
However, it is also stated that
2. PROVIDED THAT nothing herein contained shall prevent the General Synod from accepting any alteration of the above-named formularies and Version of the Bible as may from time to time be adopted by the United Church of England and Ireland, with the consent of the Crown and of Convocation.Footnote 75
This suggests that there was some residual authority inherent in the Church of England — perhaps associated with the royal supremacy — to alter fundamental constitutional provisions (if not doctrine), which the local church might follow. This may probably be taken to not extend to doctrine per se, as synods, in the history of the Church, were seen as not having authority to determine doctrine, and had only local authority, and the Church of England asserted no wider authority.Footnote 76 The qualification may, therefore, be taken to refer to the Church of England’s authority to maintain order and discipline in liturgy and worship.
The Church of England Empowering Act 1928 (NZ), passed to allow the Church in New Zealand to make changes in its fundamental provisions so that it would not imperil its ownership of property. It provides for the alteration of the formularies contained in the Constitution. Section 3 provides that:
It shall be lawful for the Bishops, Clergy and Laity of the Church, in General Synod assembled, from time to time in such way and to such extent as may to them seem expedient, but subject to the provisions in this Act contained, to alter, add to, or diminish the Formularies, or any one or more of them, or any part or parts thereof, or to frame or to adopt for use in the Church or in any part of the Province or in any Associated Missionary Diocese new Formularies in lieu thereof or as alternative thereto or of or to any part or parts thereof and to order or permit the use in public worship of a version or versions other than the Authorized Version of the Bible or of any part or parts thereof:
Provided that the provisions of this section shall not empower or be deemed to empower the General Synod to depart from the Doctrine and Sacraments of Christ as defined in clause one of the Constitution.Footnote 77
The procedures to be followed include gaining the consent of a majority of diocesan synods, a delay of at least a yearFootnote 78 and the holding of General Synod elections before the enactment comes into force.Footnote 79 This procedure is similar to the legislative process for secular legislation, yet differs because law in the Church depends for its authority upon identification of the divine will rather than the consent of the governed.Footnote 80 There is also an attempt at ensuring that law is truly a manifestation of the divine in human law, so far as this is possible.
Internally, the Church can exercise coercive power or imperium, as well as persuasive power or dominium, often derived from secular authority.Footnote 81 The imperium includes Acts of Parliament, statutory regulations, canons and synodical orders.Footnote 82 The dominium includes policy documents, regulations, directives, codes of practice, circulars, guidance, and guidebooks.Footnote 83 These have only moral or persuasive force,Footnote 84 and do not depend upon secular authority. The Church uses some secular laws, and legal procedures such as Acts of Parliament, but it is not to be inferred thereby, that it has a right to do so greater than any non-public association or person.Footnote 85 The use of secular law by the Church is not surprising, given its frequent use in the post-Reformation history of the Church.
Although the supremacy of the State in all legal matters — for it is scarcely less than that — is not asserted over the Anglican Church in New Zealand, in that the State does not interfere in religious matters, yet religion is not altogether ignored by the State. Nor is the position of the State ignored by the Church.
The sixteenth century (re-)iteration of royal imperium over matters religious as well as secular was to have a continuing effect upon the law of the Church; effects which may still be seen in twenty-first century New Zealand,Footnote 86 although the Church is not, and never has been, established in New Zealand.Footnote 87
The Treatment of the Anglican Church in Statute
The New Zealand Bill of Rights Act 1990 (NZ) recognizes that everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and hold opinions without interference.Footnote 88 It also provides that everyone has the right to manifest his or her religion or belief either individually or in community with others, in worship, observance, practice, or teachings, and either in public or in private.Footnote 89 The effect of this Act is principally confined to the actions of public bodies,Footnote 90 which are prevented from infringing this freedom of opinion. Thus, they are both precluded from imposing its doctrine or practices upon unwilling individuals, but are equally protected against suppression.
The provisions of the laws of the Church are not generally justiciable in a secular court,Footnote 91 except to the extent that they are involved in a matter concerning church property governed by statuteFootnote 92 or otherwise within the jurisdiction of secular courts — and this latter varies between jurisdictions.Footnote 93 The courts have been reluctant to deal with theological matters.
But there are a great number of statutes which regulate aspects of the Anglican Church’s life and work in New Zealand.Footnote 94 Many of these are concerned with the property that the Church acquired since the nineteenth century, and are similar to many others enacted for the benefit of particular churches or other organizations.Footnote 95 In practice, the secular courts will become involved in church disputes where the interests of justice so require.
Examining just a small selection of the Acts which have conferred secular legal powers upon the organs of the Anglican Church, we see several common elements. For example, Anglican Church Trusts Act 1981 (NZ), a private Act, is described in its long title as:
An Act to widen the powers of trustees under trusts in connection with the Church of the Province of New Zealand and the Church of the Province of Melanesia and to provide for the administration of such trusts.Footnote 96
More importantly, the preamble explains the rationale for the Act:
WHEREAS there is real and personal property in New Zealand held on trusts for and in connection with the Anglican Churches in New Zealand and Melanesia: And whereas the powers of the trustees in relation to the investment of the trust assets are limited by the instruments creating the trusts: And whereas it is desirable to consolidate and extend the powers conferred on trustees by the Church of England Trusts Act 1913 and its amendments and to give greater powers of investment to the major Trust Boards holding property for the said Churches: And whereas there are trusts held for religious or charitable purposes in connection with the Anglican Church where it has become impossible or impracticable or inexpedient to carry out the trust objects or purposes, and by reason of the limited assets of the particular trusts or for reasons of expense it is desirable to provide a means for varying the trusts in addition to the means provided by the Charitable Trusts Act 1957.Footnote 97
This Act is, therefore, to give the church institutions greater flexibility than was then enjoyed by the general public in respect of trusts,Footnote 98 for instance in the range of funds in which it could investment. This is one field which is commonly the subject of secular legislation enacted for the benefit of the Church.Footnote 99
The Church of England Tribunal (Validation of Election) Act 1934 (NZ) was of historical interest in that it was ‘An Act to validate the First Election of the Tribunal elected under the Church of England Empowering Act 1928 (NZ), to hear and determine Appeals under that Act’.Footnote 100 In 1931, the first election of an appellate tribunal under the Act of 1928 was disrupted by the series of earthquakes referred to in the Hawke’s Bay Earthquake Act 1931 (NZ). The proceedings of the General Synod were to some extent disorganized by reason of these earthquakes, and the first election of the Tribunal was not held in accordance with the Act, but was held at the session of the General Synod, which took place at Napier in 1934.Footnote 101 The Church of England Tribunal (Validation of Election) Act 1934 (NZ) is purely a validating Act, to ensure that the validity of the election should not be questioned on the ground that the provisions of the Act had not been complied with.Footnote 102 Yet, it is significant that recourse should be had to secular authorities, and shows the extent to which the Church’s procedures were influenced by (secular) legalistic concepts.Footnote 103 The great majority of other Acts are concerned with the temporal goods of the Church, and regulate trusts and property.
The Church is not, however, exempt from regulation by general legislation. Thus, the Church is bound by the general prohibition on discrimination on the grounds of religious belief.Footnote 104 It is unlawful for an employer, or any person acting or purporting to act on the employer’s behalf, to refuse or omit to employ a qualified applicant by reason of the applicant’s religious or ethical belief.Footnote 105 It is also unlawful to discriminate on the grounds of sex, or on a number of other grounds, in employment, the provision of goods or services, access to public facilities housing and in education. But the Human Rights Act 1993 (NZ) allows for the different treatment of people based on sex, where the discrimination is for the purpose of an organized religion and is required to comply with the doctrines, rules, or established customs of the religion.Footnote 106 ‘Religion’ is, moreover, defined broadly.Footnote 107
Some special statutory provisions are made for the personnel of the churches. ‘Ministers of religion’Footnote 108 are prohibited by statute from disclosing in any proceeding a confession that was made to the minister in his or her professional character, except with the consent of the person who made the confession.Footnote 109 However, any communication made for criminal purposes is not privileged.Footnote 110
Whilst only a minority of marriages in New Zealand are today conducted in a church, the names of ministers of religion that have been sent to the Registrar-General of Births, Deaths and Marriages by any of the religious bodies referred to in the Marriage Act 1955 (NZ) are entered in the list of marriage celebrants.Footnote 111 There is no requirement for separate civil and religious weddings, as the churches’ own ministers will normally be authorized — as marriage celebrants — to conduct marriages.
The offence of blasphemy remains in the Crimes Act 1961.Footnote 112 It is an offence punishable by up to one year’s imprisonment for any person to publish blasphemous libel.Footnote 113 It seems that this provision will apply only to attacks on Christian beliefs.Footnote 114 Whether a particular published matter is or is not a blasphemous libel is a question of fact. To express in ‘good faith and decent language’ a religious opinion of any sort is not an offence. In New Zealand, unlike England, the law regarding blasphemy is confined to published matter.Footnote 115 In the only reported New Zealand case on the scope of the offence, the judge’s direction to the jury asked whether on the basis of community standards the words had exceeded the bounds of propriety and reached contemptuousness, reviling, and insult.Footnote 116
In a number of respects, while no particular religious denomination is preferred, religion as such — particularly Christianity — receives a favoured treatment. This includes direct aid, immunities, regulation of cemeteries, school and hospitals, and in the recognition of religious practices by the State.Footnote 117
It can be seen from the above that the Anglican Church and (perhaps to a lesser extent) other religious denominations enjoy a special legal status in New Zealand, especially in respect of property holdings and investments. The Anglican Church is not an established Church, but it does, often in common with other recognized churches, enjoy certain legal rights not enjoyed by other corporate bodies — though it is only special in contrast to the other churches in the scale and scope of its use of secular laws.Footnote 118 Many of these owe their origins to the extensive grants of land to the Church of England during the nineteenth century, particularly in the southern province of Canterbury.Footnote 119
Ironically, perhaps, the advance of humanism, and oft-times militant secularism (and even anti-Christian sentiment) in modern western society, is especially noticeable in New Zealand. Thus, it might be questioned whether it is a Christian, post-Christian, or non-Christian State. The legal relationship of the Anglican Church and the State doesn’t seem to have had a significant impact upon that.
Conclusions
The concept of the deliberate and complete separation of Church and State, so influential in many parts of the world,Footnote 120 was never dominant in New Zealand, since the two developed together during the colonial period. Belief in this full separation is alien to both the secular laws and church practice. Civil law cannot be separated from Biblical law, for the Biblical doctrine of law includes all law, civil, ecclesiastical, societal, familial and all other forms of law. The law of Western civilization has historically been Christian law, and the links remain important, for both Church and State. The ecclesiastical law of the Church of the Province of Aotearoa, New Zealand and Polynesia is partly created by the State.
The Church is neither established nor dis-established, but rather the Anglican Church in New Zealand may be classified broadly as quasi-established in the sense that whilst having the status of contractual societies, there are close legal links between the Church and State. The authority of internal church law rests, at least in part, upon the existence of secular legislation, and secular legislation expressly and directly regulates some of the temporal affairs of the Church.
It may be argued that the Anglican Church is no more established than any other church. Wood argues that by the end of the 1850s, the privileges which had been enjoyed by Anglicans, compared with other denominations, had virtually gone.Footnote 121 But this relationship was much more than a question of ‘privileges’. The quasi- or pseudo-establishment status of the Anglican Church in New Zealand has much to do with the way in which it has assumed and sometimes been given the ‘establishment’ role, for example on state occasions. While the identity of the Church, particularly in relation to its property, is regulated by secular law, it could be argued that this does not make it quasi-established. However, it is argued that the extent of the relationship between Church and State is more complex, and inter-dependent.
The laws of the Church are made by the Church itself, and its members are bound to one another by consensual compact. But several parliamentary statutes ‘declare and define the Powers of the General Synod of the Church of the Province of New Zealand’,Footnote 122 and they govern the alteration of the formularies of the Church.Footnote 123 To be spiritually autonomous, the Church must show that, as the organic body of Christ, it has the capacity to determine truth from error, that it is possessed of a Doctrine of the Church.Footnote 124 The freedom of the Church to conform to the universality of the whole Church is at once limited by the dependence, in form if not substance, on secular statutory provisions for altering fundamental provisions of the Constitution, and by an assertion that General Synod can ‘develop doctrine’.Footnote 125
The result is that, although the Church is free to regulate its own doctrinal and liturgical laws, and is a purely a voluntary association, it is not unknown to the law.Footnote 126 While this means that certain of the formularies of the Church may not be altered without following a process enacted by Parliament, this is not necessarily wrong, per se, for it imposes upon the Church an external check. This prevents precipitate changes, and encourages mature deliberation and consideration.
However, there are inherent tensions in the ‘quasi-Establishment’ of the Anglican Church of New Zealand relying on the secular State, especially when the State is at times militantly post-Christian, or non-Christian. The role of the State hasn’t been intrusive or unwanted, because direct regulation has been sought by the Church itself and therefore thought to be desirable. But the indirect consequence of this interdependent relationship hasn’t necessarily been wholly beneficial for the Church, when the organs of the State itself are anti-Christian or post-Christian.
