Clergy Status in the Age of the Royal Commission
wrongdoing. There is a clear perception of some ontological hierarchy as between the clergy and laity that needs to be corrected. Canonical clergy discipline for ecclesiastical offences A key aspect of any status is the entitlement to formal processes before it may be removed involuntarily. It has been observed that “[d]iscipline of the clergy is a subject of perennial interest...[and t]he subject has a long history.”71 Orders do not confer perfection or immunise from discipline, either in the sight of God or man. But over the years many barriers have shielded clergy from effective accountability. Back in the heady days of clerical power after the murder of Archbishop Beckett, lay persons could not, as a general rule, initiate or even testify in disciplinary proceedings against clergy, ostensibly out of fear of vexatious accusations. All proceedings were in the court of the bishop (or Ordinary, as he was called in that context) and all decisions were in his hands, with ultimate appeal to Rome.72 There were (and still are) extensive layers of secrecy (especially but not exclusively under Catholic canon law processes), in marked contrast to the civil law’s core principle of open justice.73 Under canon law, clergy discipline involves what are called ecclesiastical offences and adverse outcomes are called “sentences” in the Anglican polity and “penal sanctions” in the Catholic polity. For Anglican clergy in Australia, the Church Constitution has modified the inheritance of English canon law by limiting “sentences” for such offences to deposition from orders, prohibition from functioning, removal from office and rebuke. Involuntary deposition from Anglican Holy Orders for ecclesiastical offences is effected by a bishop but may only be imposed pursuant to the sentence of a church tribunal following trial in a tribunal identified in the Constitution.74 The Constitution requires each diocese to have a tribunal with jurisdiction to hear charges against clergy. The bishop’s so-called “prerogative of mercy” is however preserved, subject to a duty to consult with the tribunal.75 Ecclesiastical offences recognised under the Anglican Church Constitution include breaches of faith, ritual, ceremonial or discipline,76 an offence of unchastity, an offence involving sexual misconduct or an offence relating to a conviction for a criminal offence punishable by imprisonment for twelve months or upwards.77 The Offences Canon 1962 adds drunkenness, habitual and wilful neglect of ministerial duty after written admonition in respect thereof by the bishop of the diocese and wilful failure to pay just debts. It also treats as an offence “conduct, whenever occurring, which would be disgraceful if committed by a member of the clergy, and
71 72 73
74
75 76 77
R M Helmholz, “Discipline of the Clergy: Medieval and Modern” (2002) Ecclesiastical Law Journal at p 189. Ibid. As to the “open justice” principle in Australian common law, see, eg John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344 (Spigelman CJ). As to secrecy in Catholic canon law, see, eg Kieran Tapsell, op cit. Cf T S Eliot’s observation that “The Church of England washes its dirty linen in public....In contrast to some other institutions both civil and ecclesiastical, the linen does get washed” (Essay, “Thoughts After Lambeth” 1930). See Holy Orders, Relinquishment and Deposition Canon 2004 for the current arrangements within the Anglican Church of Australia. It is currently in force in most dioceses but will be replaced by the Holy Orders (Removal from Ministry) Canon 2017 when it comes into force in the dioceses. Constitution, s 60 (2). All four of these terms are defined, after a fashion, in s 74 of the Constitution. Constitution, s 54 (2) and (2A). There must be a link between the member of clergy charged and the diocese: see s 54 (2A).
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