It’s a funny thing …
About the Sydney Anglican Disciplinary Tribunal
Part 3
Drew and Pippa are warned that they cannot obtain justice from the Disciplinary Tribunal.
By Louise Greentree[1]
Introduction
It’s a funny thing about the Sydney Anglican Disciplinary Tribunal: judging from the comments made by the Deputy President in Drew’s case over the last four directions hearings, it is clear that he is warning Pippa and Drew and their team that they cannot expect the Disciplinary Tribunal members to ‘do justice’ (to quote from Micah 6). And in this, he is entirely correct. There are the ambiguities and just plain bad drafting of the Discipline Ordinance 2006, delineated by the Deputy President himself over the course of the four directions hearings and which I have examined in Part 2: first, that it is a waste of time and money when the Tribunal can only make a recommendation to the Archbishop, who can make an executive order in those terms or any other executive order that he sees fit; second, that a person cannot clear their name with Disciplinary Tribunal hearing, they need to go to the Supreme Court to do this; third, that the issue of jurisdiction is unclear and badly drafted. Then there is the issue of the stressfulness of responding to a case brought by the PSU, as well as the expense far and beyond the measly amount that is payable by the diocese. This raises a lot of pressure on the respondent to just settle to get out of there. This is hardly a just and fair process, appropriate to a Christian organisation such as the Sydney Anglican Church.
Now we have to add two more reasons.
The first is the demonstrated partiality of at least two of the three members of the Tribunal towards the diocesan case which makes doing justice well-nigh impossible.
The second is the impossibility of this case continuing because of two other influences: the first is the involvement of the Archbishop himself, following on the reports from highly regarded Christians that what they observed in the directions hearings was appalling, inappropriate and totally unchristian; and second, the letter written by complainant 1 (C1) direct to the Deputy President (who on earth told him this was an appropriate thing to do?) which compromises what independence could possibly be perceived to exist between the deputy President, C1 and the PSU
I have been consulting with various people who have been present at the directions hearings that have taken place in Drew’s case and I am most interested in the way in which these have been conducted. It seems that the Deputy President (acquiesced to by the other tribunal members whether by silence or strident support) wants us to believe that there is not and never will be justice to be had from him and his colleagues in Drew’s case.
The Deputy President of the Disciplinary Tribunal is at the time of these directions hearings Acting Judge the Hon. Peter Young AO QC, a man who has had a distinguished legal career in the secular world rising to judicial office. But here, serving as a private individual in the ‘sacred’ world, he is portraying to Drew, Pippa, their legal representatives and all of their supporters that the quasi-judicial process of the tribunal under his deputy presidency lacks commitment to doing justice through objectivity and demonstrated freedom from any possible inference of bias and influence. Instead, he is doing his best to discourage Drew and Pippa from expecting anything other than a travesty of justice.
Of course, this can be seen as evidence of his commitment to support the PSU in the case rather than any personal commitment to injustice per se.
As I examined in Part 2, ever since the first directions hearing he has been trying to force them to walk away from the case by emphasising the deficiencies and outright incompetency of the process. For, example, he has told them that it is a ridiculous waste of money when the worst that the Archbishop can do is to bar Drew from working in the diocese for 5 years. But if Drew walked away without there being an appropriate settlement of the case resulting in withdrawal of the charges the Deputy President and his colleagues would be able to bring down a decision on the charges, condemning Drew’s entirely innocent actions in his absence without the need to give reasons based on the evidence and church law. Thus they would be able to appear to justify the unjustifiable: the lies, bullying, intimidation and abuse that have characterised the way the case has been handled by Lachlan Bryant, Peter Barnett, and almost every other person in the diocesan organisation involved apart from the Archbishop of Sydney the Most Rev. Glenn Davies.
It is true that the Disciplinary Tribunal is a sham[2].
Shame on the diocesan officers, PSU directors, senior clergy, diocesan committee members and others associated with the drafting and implementation of the mind-bogglingly ineptly conceived Discipline Ordinance 2006 and the Church Discipline Ordinance 2002 that preceded it.
And the Disciplinary Tribunal’s proceedings so far in Drew’s case have been shambolic largely due to this man’s behaviour. He uses both his utterances and his appearance during the conduct of these directions hearings to try to force Drew and his legal team to give up hope of anything remotely approaching a competent, careful and courteous consideration of the issues central to the case that the PSU has brought, which are: in what way, if at all, can Drew’s actions and activities with complainant 1 (C1) when aged some 15 and a half years old until aged 18 and throughout that time working part-time as Drew’s assistant in the youth ministry be characterised as ‘disgraceful if performed by a youth minister and which caused or, if known, would have caused a scandal’, as there is NO issue of child abuse or child sex abuse[3]? How can a competent quasi-judicial process make a finding that ordinary unexceptionable actions and activities could possibly be disgraceful, especially as they were known about at the time and did not cause a scandal?
How does this man do this?
First: he engages in verbal intimidation. He uses over bearing language and gives a display of apparently unreasoning ill-temper to cut short and dismiss arguments by the solicitor acting for Drew and, in later directions hearings the barrister for Drew. He even verbally harassed the solicitor’s wife at the beginning of the second directions hearing demanding, without any authority to do so, that she give an undertaking not to report the proceedings or make her notes available to anyone leaving the hearing (on the spurious basis that it was a closed hearing) or else get out of the hearing room. How stupid! Of course she was going to make her notes available not only to her husband but to anyone else she wanted to. And she was not the only person storing up in her mind the shenanigans going on in this tribunal.
Second: demonstrating something approaching the biological condition of aposematism (go on – look it up in Wikipedia: briefly, the use of bright colours by animals, birds, fish and insects to warn potential predators to leave them alone because, either, they are poisonous or bad-tasting, or they are neither of these things but just pretending to be). As he engages in the ’warfare’ that seems to be his preferred method of dealing with legal argument in the Disciplinary Tribunal, his appearance changes and his face colour becomes empurpled. Coupled with his enraged comments this reminds one of the behaviour of some fish which puff up and change colour in what is intended to be a threatening manner, but is in reality a defensive mechanism when approached by another fish higher up the food chain. Consistently overriding with rudeness the attempts of the respondent’s lawyers to conduct the case with calm reasonableness, his face colour changes from florid to puce, raising in those to whom this verbal onslaught is directed the fear (or hope?) that any moment now he will collapse with a stroke or coronary occlusion. They hope (fear?) that the diocesan Registrar Mr. Douglas Marr, who is present as Registrar for the tribunal, has an ambulance on speed dial.
It is all very shocking, both from the point of view of one’s respect for the man himself and his colleagues and for the church. In addition, the Deputy President’s behaviour – his displays of choleric ill-temper and discourtesy – is precisely that particularly deplored by writers of several parts of the Epistles in the Bible as unworthy of Christians[4].
Why is he doing this?
We think it is because he and his colleagues of the Tribunal want to serve the Anglican Church organisation instead of serving God, who is the God of truth and justice. Instead, they seem to be serving the flesh-and-blood office-holders and employees of the human organisation: the church that through its’ flawed personnel and their incompetence, arrogance, dishonesty, deviousness and deceit has so completely brought calamity upon Drew and Pippa and their four children, even though Drew is a man who has done nothing wrong.
What is more, the Deputy President and his Tribunal colleagues have tried to serve the flesh-and-blood organisation by using or acquiescing to the use of intimidatory and bullying tactics notwithstanding statutory declaration evidence in front of them that Drew came close to committing suicide because of bullying and intimidatory tactics used by Lachlan Bryant and Peter Barnett. Why do they risk forcing Drew into the same position? Do they want to appear at a Coroner’s Inquest where they will be subjected to a searching examination of their own and their colleagues’ behaviour in the Tribunal? Do they want to be the cause of a woman and her four children being left a widow and orphans? Is this what Christ-like behaviour is?
The time is long over-due to rein in this behaviour and to look for people to sit on the tribunal who demonstrate the virtues of Christian behaviour with intelligence and courtesy.
In the eyes of Complainant 1 the Archbishop of Sydney has compromised the Disciplinary Tribunal process:
He has done this by interviewing Drew and Pippa about the case on 24 February 2015. Since the arrogant and rude display by the Deputy President at the second directions hearing Drew and Pippa have had invited guests attend the last two. Some of these guests, appalled and disgusted, told the Archbishop what they had seen and heard. They were highly critical of the Tribunal process as well as the behaviour of the Deputy President. The Archbishop tried to arrange a meeting between complainant 1, Drew and himself to try to mediate the issues and bring about a Christian resolution. Complainant flatly refused to comply with this request of the Archbishop. In doing this he is in breach of his ordination vows.
C1 has himself sabotaged the ability of the Disciplinary Tribunal (as presently constituted) to hear the case:
C1, in an act of breath-taking stupidity, then wrote directly to the Deputy President on 26 March 2015 (I wonder what happened in the intervening 8 days). It is an illuminating letter, as much for insights into this man’s character and personality as for his ignorance both of the operation of the Disciplinary Tribunal and the limitations of its’ processes and the paucity of the PSU’s case. As I examine more closely in another article to follow this one, the letter deals with several issues: firstly it ‘dobs in’ the Archbishop for seeing Drew and Pippa, and, secondly it says that the Archbishop’s offer to ‘mediate’ a meeting between complainant 1 and Drew was ‘distressing at so many levels’. He repeatedly rejected it. He blames that meeting for bringing about the idea of postponing the tribunal hearing to allow for settlement discussions.
He labels himself as a victim of the process. He says: ‘The idea of restarting a new process at such a late stage is an insult to everything I have endured over the past year and a half.’ This is an interesting reflection on his world view.
He complains bitterly about the delay.
Finally, he proposes that the Deputy President be the sole arbitrator of the case ‘so that a finding can be more quickly made’. I do not know why this would be suggested: not just for the irrationality of dispensing with two members (why is this perceived as a barrier to the case proceeding?), but for the irrationality of thinking that Drew and his legal team would agree to it for one minute. Also, his confidence that a ‘finding’ (presumably against Drew) will be made is not well placed.
And the sad thing is, if a speedy resolution was uppermost in his mind, then he should have accepted his Archbishop’s request to take part in a mediated discussion and settlement. The case would be over by now. And he would have rescued some involvement in the case to have his needs identified and addressed.
As it is, even if the case goes on, eventually, before a differently-constituted Tribunal membership, it will not be decided on the basis of C1’s ideas nor his concerns. It will remain out of his hands. Anything otherwise will be an abuse of process and extend the case, with attendant publicity, far wider that just this website where for the time being I have extended him the courtesy of anonymity. He has done himself a grave disservice in so many ways.
We did try to get the Tribunal members to deal rationally with the case
In the second directions hearing we invited the tribunal members to take a look at the prima facie case and we asked that it be dismissed for having been brought too many years later, compromising the integrity of the evidence that could be available, bearing in mind that members of the youth groups of 2001 – 2004 will have dispersed from the suburbs that fed into the parish.
Remember three things: firstly that the case relates to events in the period early 2002 to July 2004, but it was not commenced until 2013; and secondly, that it does not allege child abuse or child sex abuse, it requires the Tribunal to make a finding in respect of each of the incidents complained of that it was conduct that was ‘disgraceful when performed by a youth minister AND that it caused or, if known at the time would have caused a scandal’.
Fundamental to this sort of an application is the fact that the actual complaints were, in many cases, far too trivial to even be worth the time and cost of answering; that the others arguably could not be found to be ‘disgraceful behaviour’ if performed by a youth minister; and, thirdly, that in any event none of the actions is illegal, immoral, contrary to The Bible nor even contrary to church ‘law’ as contained in the Code of Conduct for Clergy, which predated Faithfulness in Service (which did not pass Synod until October 2004, and training programs were not commenced until 2005, well outside the period), nor contrary to the Church Discipline Ordinance 2002 which was applicable at the time. And, finally and most importantly, that none of the actions had any whiff of a sexual component, and none was alleged.
The Deputy President, aided and abetted by Mrs. Brigden loudly trumpeted the application of a precedent case from NSW Criminal Law – in relation to a non-criminal law case in a private tribunal in which none of the allegations involved any criminal action. There was absolutely no obligation to ‘follow’ the precedent. It was seized upon in pursuance of the determination of these two tribunal members to support the PSU case.
What should they have done?
A wise, intelligent and Christian approach would have been two-fold. Firstly, in all the legislation that sets up State and federal Tribunals there is provision for referral to alternate dispute resolution, before the case is listed for a hearing. It is scandalous that there is nothing analogous to that in the Discipline Ordinance 2006, or its’ predecessor the Church Discipline Ordinance 2002, setting up the Disciplinary Tribunal.[5] However, this is a tribunal that, having no power or authority, can at least use whatever persuasion it has to counsel the parties to participate in a mediation while suspending the case until the process had been completed. A direction for a mediation of the case (by another person nominated as a Tribunal members but not dealing with the case or an independent trained mediator) would have been fruitful, even if only to remove the trivial complaints so the tribunal could concentrate on what few remained, and it could have brought the case to an early and satisfactory conclusion.
Secondly, the application could have been courteously dealt with, and perhaps in view of the triviality of the complaints and the absence of harm, the case could have been dismissed but the parties referred for counselling and reconciliation conferences.
Both approaches, applied consecutively, would have satisfied the need for members of a tribunal in a church organisation to temper legalism with appropriately Christian behaviour.
Final thoughts
In my series ‘Drew’s Adventures in Wonderland’ I pulled apart the Disciplinary Tribunal process and exposed it as a sham. In this series I have exposed the shambolic administration of the tribunal process by the Tribunal members. There is much to fault in both. Not just from the point of view of fair process which is compromised, not just by poor drafting but actual neglect to provide a process of integrity, but also from the point of view of poor behaviour and lack of wisdom as Christians administering a process for a Christian church.
I would hope that some wisdom would now prevail, although for reasons explored in other articles and to be explored in articles to come, I expect that this will not happen. However, I cast the seed. If it falls on fallow ground or on barren ground that is not my concern, other than to advise and try to protect whoever else contacts me because they are being harassed and bullied by church officers and clergy under defective church legislation and processes.
Endnotes
[1] Louise Greentree BA LLB LLM(Hons) ProfCertArb Admitted to the Supreme Court of NSW and to the High Court as a solicitor(now retired). Former partner of Sydney city firm of solicitors. Lately law academic with special interest in Legal Professional Conduct, Alternative Dispute Resolution and restorative processes. Professional training includes Real Justice Restorative Conferencing and Collaborative Law.
[2] See my series of articles ‘Drew’s Adventures in Wonderland’ on www.churchdispute.com
[3] There is no evidence from either of the complainants alleging child abuse or child sex abuse, the charges do not refer to it, and we have evidence of a conversation between complainant 1 and a highly respected churchwoman in which he admits that he never did think there was any sexual intent in such activities. Once you exclude child abuse, sexual or otherwise, then the conduct complained of needs to be well outside the parameters of normal behaviour to attract the designation ‘disgraceful’ no matter who has performed it. This would seem to be self-evident.
[4] Try Colossians 3: 8 ff; Colossians 4:6; Ephesians 4: 1-2;
[5] Time is long overdue to remove from the jurisdiction of the Disciplinary Tribunal any case alleging child abuse or child sex abuse, grooming and stalking – these are all crimes which need to be investigated by the Police and prosecuted by the State in the criminal courts. The assumption of jurisdiction by the churches in these cases has led directly to abuse of process and the intervention of senior clergy and church officers in cover-ups.