Benefits of clergy that are directly available under modern Australian law

who could demonstrate they were clerks by reading in this manner. Not quite as easy as it sounds, because in those days the Bible was in Latin. The good news was that, unless the judge took a particular fix against the accused, the same passage from the Psalms was always chosen. In modern translation, Psalm 51:1 reads:8

“Have mercy on me, O God, according to your steadfast love; according to your abundant mercy blot out my transgressions.”

This sentiment was obviously appropriate to the occasion. And because the ability to read the passage (or appear to do so) it enabled the convicted felon to escape the noose, that verse became known as the “neck verse”.

This legal fiction underwent many transformations over the centuries, as its justification morphed from a true clergy benefit into a shield available to all deserving first offenders. In 1691, even women were admitted to plead benefit of clergy, although they would wait three centuries longer before accessing any other aspects of clergy status in the Church of England. Felons invoking the privilege who were not genuine clergy would be branded on the thumb to ensure that if they offended a second time, they could expect no further mercy this side of the grave. Commencing from the time of Henry VIII, various offences were made “unclergyable” by Parliament. And by the reign of Elizabeth I, claiming the privilege only downgraded the punishment from death to a term of imprisonment.

Benefit of clergy continued to evolve before it arrived with the First Fleet on the shores of New South Wales as part of an Englishman’s “birthright” but it was formally repealed in New South Wales in 1828.

This excursus into benefit of clergy hopefully demonstrates how the legal and symbolic aspects of status can confer real benefits, how such matters change over time, and how a status can be abused. It also illustrates the State’s interest in clergy status and its proper usage.

Benefits of clergy that are directly available under modern Australian law

One hears whispers about clergy avoiding speeding tickets, on an alternative fiction that deems them always to be rushing to a wedding or funeral. But only a handful of genuine clergy privileges are recognised today. In New South Wales (but not Victoria), clergy may claim exemption from jury service9 and there is an offence of interfering with a member of the clergy when conducting divine service.10

In the context of the Marriage Act amendments relating to same sex marriage, Ministers of Religion have been permitted to decline to solemnise a marriage which conflicts with the “doctrines, tenets or beliefs” of their religion.11 The Anglican Archbishop of Sydney has advised his clergy that this interaction of state and church law not only permits clergy to decline same-sex marriages, but requires them to do so.12 This, on the basis that the Marriage Act requires Ministers of Religion to use a form of ceremony that is “recognised as sufficient for the purpose by the religious body of which he or she is a minister”.13 According to Archbishop Davies, since there is

8 New Revised Standard Version. It was Psalm 50 in the Latin Vulgate which followed the ordering of the Septuagint. 9 Jury Act 1977 (NSW), Schedule 2. 10 Crimes Act 1900 (NSW), s 56. 11 Marriage Act 1961 (Cth), s 47. 12 Letter to clergy 15 December 2017. 13 Marriage Act 1961 (Cth), s 45 (1).

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