The Taliban meets Oliver Cromwell

A critical consideration of the Discipline Ordinance 2006

Of the Anglican Church of Australia Sydney Diocese

Louise Greentree[1] argues that the movement that is presently informing the church legislative program adopted by the Anglican Church of Australia Sydney diocese demonstrates how yet again misplaced zeal coupled with self-righteousness and judgmentalism leads to abuse of the ordinary parishioner. She says that the Discipline Ordinance 2006 of Sydney Diocese (as well as it’s predecessor in 2002 to a lesser extent)and a departure from the mission of the church has led to a culture of sanctimoniousness and enforcement of discipline and conduct issues against those who should be given pastoral care not public humiliation and abuse. The diocesan apologists cry ‘child abuse’ to justify a range of measures that have nothing to do with child abuse. In one case those very apologists have condoned child abuse because they did not recognise it.

In any event the Ordinance provides a cumbersome and ultimately ineffective process to respond appropriately to all allegations, let alone those of child abuse, which are best left to the professionals – the Police and State organisations equipped and empowered by State legislation to deal with that scourge. Diocesan processes should not be used to try to cast a wider net than that of the State authorities by the application of faulty processes that breach the principles of natural justice and fair process, and apply an ersatz criminal law system even to private ‘sin’. There are two main areas of false ‘doctrine’ that are operating in the design and administration of this legislation in its latest form. First, it is not the case that parishioners, or clergy, who are sinners in respect of such matters as unchastity, drunkenness or willful failure to pay debts are by that reason many times more likely to commit acts of child abuse. Second, nor is it the case that clergy and congregations must achieve perfection on this earth, and those who fall short of perfection should be removed from the church, banned, shunned, and denied the pastoral care that sinners obtained at the hands of Jesus so many years ago. Is it that the church in Sydney diocese has forgotten how to minister to its parishioners and now can only subject them to humiliating and abusive processes?

The Taliban: ‘The Taliban are a Sunni Islamist and Pashtun nationalist movement that ruled most of Afghanistan from 1996 until 2001 … While in power, the Taliban implemented the “strictest interpretation of Sharia law ever seen in the Muslim world”, and became notorious internationally for their alleged mistreatment of women … they faced public flogging in the street, and both men and women faced public execution for violation of the Taliban’s laws.’[2]

Oliver Cromwell (1599 – 1658): ‘Oliver Cromwell rose from the middle ranks of English society to be the Lord Protector of England, Scotland and Ireland, the only non-royal ever to hold that position. He played a leading role in bringing Charles I to trial and execution; he undertook the most complete and the most brutal military conquest ever undertaken by the English over their neighbours; he championed a degree of religious freedom otherwise unknown in England before the last one hundred years; but the experiment he led collapsed within two years of his death, and his corpse dangled from a gibbet at Tyburn. He was – and remains – one of the most contentious figures in world history.’

‘Cromwell had been converted to a strong Puritan faith.’

‘Cromwell wanted to build a godly commonwealth, and he rode roughshod over those who got in his way – raising taxation without consent, overriding a law he has helped to make in 1651 which protected ex-royalists from further penalty, imprisoning without trial those he believed to be planning subversion of his regime.’[3]

The English Puritans: ‘It was during the reign of Queen Elizabeth I (1558-1603) that the Puritan movement was born. … At first the Puritans received the name puritan because they sought to purify the National Church of England. In later times they were called puritans because of the purity of life that they sought. They set out to reform the Church of England. Their desire was to conform the national Church to the Word of God in government, worship and practice.’[4]

Some issues of the history and ‘culture’ of the Anglican Church in Australia, Sydney diocese[5].

The Church of England in the new colony of Australia did not inherit the intertwining of State and ecclesiastical law that the parent church in England enjoys and therefore ecclesiastical law in the civil Courts is not automatically enforceable in State Courts:

The Church of England was the first church of the fledgling colony cum convict punishment block. An evangelical minister of the Church of England was sent out to start what was going to be the ‘official’ and ‘established’ Christian church of the colony and no doubt it was never envisaged that it would not be the same as the ‘parent’ church in England, enjoying State legislated force and effect for the ecclesiastical courts and canons dealing with such things as discipline of clergy. However, a running dispute in the late 1820’s – 1830’s between a worshipper at St. James’ Church King Street, one Edward Smith Hall and the Archdeacon, Thomas Hobbes Scott over the occupation of a pew in that church went to the Supreme Court in two notable cases which led to what developed as a line of judicial decisions that the Church of England in Australia was not an established church in the sense of the parent church in England, and that at best those cases could only be decided on contract law, not ecclesiastical law.

A later attempt by the then bishop of the church in the colony, Bishop Barker, in 1861 to defend in the civil court a claim of a writ of prohibition against him in relation to a church inquiry into the behaviour of a ‘dissident’ clergyman cemented the decisions that in fact the bishop enjoyed that role in the colony ‘only over those who voluntarily submit to his jurisdiction’ and without the powers that a bishop would have in England[6]. Dickinson, ACJ looked to the provisions of s42 of The Australian Courts Act (9 Geo IV c83) which provided that the colony adopted English law only ‘so far as the same can be applied’. In this it was not capable of application because there was none of the statutory parishes, tithe system and so forth that were part of the established church in England.

There was also a burgeoning commitment to religious freedom. In the words of Wise J, comparing the positions of the members of the Church of England in the colony with those of the Presbyterians: ‘… how could a colony, open alike to Englishmen and Scotchmen (sic) be governed by a law which should be applicable to only a portion of its inhabitants?’ This was effectively the nail in the coffin of the incorporation of Church of England ecclesiastical law into the common law.[7]

Notwithstanding this, and notwithstanding doctrinal authority[8], there was soon established in Sydney diocese a ‘culture’ of taking even ecclesiastical matters to the Supreme Court of NSW once it was established.

The Church of England in Australia – now the Anglican Church in Australia – in its present form is the creature of a Constitution Act (passed by State legislatures) that came into effect on 1 January 1962. But individual Synods remained the only law-giving body of each diocese. Amongst many other things, in each diocese there was a system of church tribunals to deal with the two main areas of conflict: on the one hand, matters of faith and ritual, and on the other hand, matters of clergy discipline. And yet there has been a steady stream of approaches to the civil Courts, particularly in NSW inviting them to be involved in disputes which lay firmly grounded in doctrinal differences of opinion. An example is the case of Scandrett v Dowling where an application for an interim injunction preventing Bishop Dowling from ordaining women priests on 5 February 1992 was granted by the Supreme Court of NSW.

Also, the Anglican Church in Australia in several dioceses has enforced through the civil Courts a line of Church of England decisions to the effect that Parish clergy are not employees (other than of God). This ‘fiction’ has been maintained notwithstanding the fact that Parishes pay the stipend (not salary) to the parish clergy minus PAYE tax installments. Each diocese maintains ‘employment’ –related legislation that recommends the amounts to be paid as stipend and allowances and administers superannuation contributions, long-service leave and holiday pay and entitlements, sick leave and so forth.

A particular consequence of this has been that, coupled in Sydney diocese with tenure, that is, appointment for life to a parish unless the clergy resign or retire or move to another parish before death, it was necessary for a way to be provided for dealing with conduct issues and incompetence (through age or infirmity) of the clergy in order to provide another avenue of ‘sacking’ these non-employees from their parish. Until 1999 – 2001 when Sydney diocese set up a process (very detailed and time-consuming) for the removal of clergy from their parish notwithstanding the absence of fault, the only way to remove clergy was through the processes of a hearing of a ‘charge’ against clergy by a diocesan Tribunal, applying fair process and considering evidence that at the very least had some sort of relevance to the ‘charge’, even if the Tribunal exercised the right of all Tribunals and arbitrations to dispense with strict compliance with the rules of evidence. In relation to ‘wrongdoing’,[9] until the development of the Church Discipline Ordinance 2002 (the predecessor or the Discipline Ordinance 2006) parish clergy were brought before a Tribunal charged with an ‘offence’ –

• That they had been convicted of a crime; or
• That they had acted in a manner that brings the church into disrepute (including such activities as committing adultery and failing to pay debts.)

Employees would be dealt with in terms of their employment conditions, whether incorporated into a formal contract or not. In other words – they could be sacked after following due process within their workplace. Parishioners who committed crimes or misdemeanors were counseled by their clergy. Those whose activities landed them in prison were counseled and comforted by prison chaplains and visited by concerned Christians.

Volunteers in church activities who held an ‘appointment’ by the Rector to such positions as heading the music ministry or running the children’s program held those positions at the pleasure of the Rector, and they could be relieved of those duties without the necessity for any explanation either privately or publicly.[10] Other volunteers – the ones who serve and wash up the morning teas and suppers after the services, those who arrange the flowers, sweep the paths, join a gardening ‘bee’ and so forth – these faithful people who work hard but who are not in any position of leadership or ‘power and trust’, if or when they strayed, the rector would counsel and advise as well as pray for them.

Those who were elected to unpaid positions in the parish by the annual general meeting (called ‘Vestry’ in this diocese), such as a member of the Parish council or a warden, could also be dealt with by the Rector in the clear case of ‘misconduct’, and counseled to resign.[11]

The 2002 Church Discipline Ordinance set up a highly structured process and applied it not only to members of the clergy but also to volunteers and other church members who fell within the definition of an ‘Other Person’. The process, with some slight ‘tweaking’, and the definitions appear also in its successor, the Discipline Ordinance 2006 Sydney diocese.

On the day that the Governor-General Dr. Peter Hollingworth was forced to announce his resignation due to an inadequate response to child sex abuse in the Diocese of Brisbane when he was Archbishop of Brisbane there was horror and shame in every one of the Anglican dioceses that make up the National Church, and steps were already being taken to formulate church legislation to try to ensure that this would not happen again: no child abuse, nor an inadequate response to complaints.

There were other days of shame in individual diocese also.[12] A number of dioceses have entered into settlements with abused persons and in other cases the Courts have awarded financial damages to those who were abused. In addition there have been Police prosecutions of some of the notable child abusers who have received gaol terms. Other alleged abusers have committed suicide or fled overseas before a case could be tried. This has created a heightened ‘awareness’ of the nature of child abuse and grooming, and led to the development of a national protocol, the Code of Conduct ‘Faithfulness in Service’ which was adopted by the National Synod (the National Church ‘Parliament’) in October 2004 and ‘enacted’ in each diocese, along with model legislation setting up the processes and tribunals to deal with such cases which was recommended to each diocese to enact for their own[13]. Each diocese has so enacted such legislation but with adaptations that have been introduced in individual dioceses after debate in each local Synod.

The Sydney diocesan ‘culture’ of a litigated response to such cases has extended to other matters and it has led to the formulation of diocesan legislation that sets up a variety of processes involving mimicking Police investigation, case appraisal by a Director of Public Prosecutions, and instituting a charge and prosecution before a church tribunal for a wide range of so-called ‘offences’ moving well beyond child sex abuse.

The ‘culture’ of a litigated response applies whether through the civil courts or through church tribunals. The only alternative form of dispute resolution offered in this form of church litigation is conciliation, much the same as that offered by such bodies as the Administrative Appeals Tribunal (NSW); nor do they contemplate a pastoral response, that is where the rector of the parish counsels and warns, prays with and advises anyone whose behaviour has come under such diocesan legislation. This is because the framers of the diocesan legislation would seem to have been focusing on the detection of, response to and eradication of child sex abuse and grooming – grave criminal offences – but at the same time bringing in legislation that is far more wide-reaching than that. The kind of ‘offences’ that can bring a person satisfying a wide definition of a ‘church worker’ both employed and volunteer (not just an ordained person) under the ambit of the discipline legislation includes the same matters from which clergy could have been ‘charged’ under earlier legislation, such things as failure to pay one’s debts and marital unfaithfulness, the former a matter for State Courts, and the latter not an offence in the wider community. It can be argued that the application of penalties for this ‘wrongdoing’ to ordained clergy is appropriate because of the nature of their ordination vows; but the operation of the church legislation has been extended to church employees and volunteers, with, predictably, a devastating effect on people who are in fact ordinary parishioners.

Whereas the State and Federal courts dealing with the civil and criminal jurisdictions have been founded on the protections of due process and the principles of natural justice, the church tribunals and associated non-tribunal processes increasingly have denied such protections for the proper administration of ‘justice’.

It is also problematic that the diocesan legislation crosses into the areas of State criminal law, including offences such as child abuse and grooming, as well as sexual offences against an adult, such as rape and harassment, stalking and the like. Here there is the possibility that a person who would have been acquitted under the State criminal system on the application of the proper standard of proof, after considering only relevant evidence properly introduced and tested under cross-examination, is charged under the church legislation which, when the case finally reached a tribunal hearing would be decided on a reduced standard of proof, and without the appropriate protection of due process and rules of evidence that at the very least confine the evidence to the relevant and material facts[14]. And in the meantime the case would be the subject of various pseudo-judicial pronouncements by the director of the PSU, the investigator and a Professional Standards Committee all of whom apply no discernible standard of proof at all, no appreciation of what the material and relevant facts are, and what is the nature of evidence required to support these material facts, no fair process, and which make their ‘decisions’ on the basis of vague, irrelevant, conflicting and even anonymous information.

It is notable that there has been a steady deterioration in the observance of due process and the principles of natural justice with a concurrent commitment to truth and justice. As the pieces of church legislation that are most highly offensive in this regard, the Discipline Ordinance 2006 and its predecessor the Church Discipline Ordinance 2002 have been conceived and drafted by lawyers within the Church this should be a matter of great concern to the ordinary parishioner and church member whether ordained or not, as well as to those lawyers and social commentators generally who deplore such undermining of the fundamental rights and protections of a civilized democratic society.

An examination of the Discipline Ordinance 2006 Sydney diocese

 The stated aim of this legislation is that it will make the church (buildings? parish? community?) a safe place for the ‘most vulnerable of our society’. It is argued that this is not achievable at all without making the church an unsafe place for its ordinary parishioners. This is so for three reasons.

1. The extended interpretation of the definition of persons to whom the 2006 Ordinance applies:

The 2002 Church Discipline Ordinance had the long title of ‘An Ordinance to provide a means for disciplining persons who fail to meet the standards of behaviour expected of ministers and persons holding positions in this church and, where appropriate, for ensuring that such persons do not pose a risk to the safety of members of the public.’

The definition of a position held by an ‘other person’ (that is, not a member or former member of the clergy) was defined to mean ‘any position of leadership within the diocese and without limiting the generality of the foregoing includes each of the following:’ and here follows a list of board members, office-holders including a churchwarden and parish councilor, and persons holding an appointment by a rector, or others in charge in the parish). Thus someone who held an appointment to lead music ministry (an up-the-front-ministry) or take responsibility for running the youth program (with access to young people who might be preyed upon) falls squarely within this definition.

However, this has changed in the 2006 Discipline Act. Instead of definitions of two classes of persons who could be the subject of complaints under the 2002 Ordinance, there is just the one, called a ‘church worker’. This represents an amalgam of the two. Thus ‘church worker’ means a person who – ‘(a) is or has been a member of the clergy, or (b) holds or has held any position of leadership within the Diocese and without limiting the generality of the foregoing, a position of leadership includes –‘ (here follows the same list of board members, office-holders including a churchwarden and parish councilor, and persons holding an appointment by a rector, or others in charge in the parish as under the 2002 Ordinance).

The interpretation of the definition of ‘church worker’ has been extended under the 2006 legislation to include even those parishioners who undertake voluntary activities for their parish that have nothing to do with positions of leadership[15] or power and trust[16]. Recently a person serving coffee after the evening service from his own coffee machine, not on any roster but just when he was there, and only standing behind a table with the machine on it in the foyer of the church in full-view of parishioners, has been included in this definition by a decision of the Chancellor of Sydney Diocese confirmed (unsurprisingly) by the members of a Professional Standards committee (which has no power, nor one would suggest, competence in legislative interpretation to make a binding determination)[17].

1. Application of church criminal system to lawful acts:

The 2002 Ordinance applied only to child abuse, and sexual misconduct ‘which would be regarded by right thinking members of the Church in this Diocese as disgraceful and inconsistent with the standards to be observed by a Christian.’ There is a further description of the sexual misconduct to which the Ordinance applies as that which ‘if known publicly would be productive of scandal or evil report’.

But the 2006 Ordinance goes further. It is not confined to child abuse or sexual misconduct. The Ordinance has lumped everyone under the same strictures of good behaviour as was applied only to members of the clergy under the Offences Ordinance 1962, which include the following: unchastity; drunkenness; habitual and willful neglect of the duties of the person’s position after written admonition in respect thereof by the appropriate church authority; willful failure to pay just debts; conduct, which is defined as disgraceful if committed by a person holding the position against whom the allegation is made, and which is productive or if known publicly would be productive of scandal or evil report; sexual abuse; child abuse; or conviction in NSW of an offence which is punishable by imprisonment for 12 months or more. Thus the Ordinance not only applies to criminal acts but also to non-criminal, particularly (but not exclusively) sexual activity, not only by clergy (for whom it is a breach of their ordination vows) but also by ordinary parishioners. Thus it applies a criminal law system to activities that the State does not recognise as criminal.

1. Failure to protect fundamental rights as does a proper criminal law system: The fundamental rights and the checks and balances of the State criminal system are not (indeed cannot be) provided by the church legislation. This becomes particularly evident when comparing the operation of church legislation with those fundamental principles of the State legal system:
2. No Independence of ‘Police‘, ‘Prosecution’ and ‘Judges’: Under the church legal system there is no independence of police, prosecution and judicial functions.

1.1 The Professional Standards Unit The Professional Standards Unit and the position of Director which the church legislation sets up does not enjoy the same independence and respect that accrues to the Department of Public Prosecutions, although it attempts to deal with the process in a similar way. The Unit is staffed by the Director and another4 persons who are all employees of the secretariat. As a unit of the diocesan secretariat, there is no pretence at independence. Also, and this is a matter of great concern, there is no provision for the strong professional ethical framework that applies to the Department of Public Prosecutions and the work of its prosecutors. It would seem that the Director regards himself as having the responsibility to make some limited review of the complaint that comes to him, and indeed the legislation envisages that the matter could be referred by him to conciliation without further investigation.[18]

1.2 The private investigator: Under church legislation, the ‘police function’ is carried out by a private Investigator who is paid by the diocese. The investigator has no powers to enter private premises, remove personal property for forensic examination (nor access to other than private forensic laboratories), nor to detain and question – in short all that the investigator can do is go into the parish and interview people, encouraging the collection of yet more gossip and innuendo. The investigator’s report is usually simply a reiteration of the original complaints (sometimes ‘beefed up’ after the complainants have had the opportunity to adjust their story to meet the matters disclosed by the accused person), and the denials. The investigator does not have power nor access to the tools of investigation to go further. In the highly-charged emotional atmosphere of a parish where allegations have been made (and there is no privacy here – everyone knows about it, in confidence from their ten best friends), the work of the investigator can be a negative influence. Another problem with the work of the investigator is that there is an attempt to use ‘judicial-style language’ to add gravitas to the recommendations that preface the report.[19]

1.3 The Professional Standards Committee purports to exercise a judicial function: The maintenance of a highly trained judiciary which is safeguarded from interference in its decision-making by the authority – government or church is of great importance because it exercises judicial functions. It makes decisions on the evidence (or allows a jury to do so) and pronounces judgment or sentence. In the church system it is a matter of grave concern that all complaints other than those referred to conciliation will initially be ’decided’ by an untrained committee of three persons or more – up to six persons in a recent case – drawn from different disciplines. It is hardly likely that any of them, other than those who are trained lawyers, will have the necessary understanding of principles of justice and fair process. In fact this committee process is the very antithesis of fair process. The church has created a situation where decisions can be made by, and ordinary people subjected to a ‘finding‘ of culpability and the imposition of a form of ‘penalty’ by, untrained people purporting to exercise a judicial function. Only some cases will be referred by the committee to a properly constituted Tribunal where there may be some attempt to provide fair process and to act judicially in an appropriate manner[20]. The ‘penalties’ of the committee are in some cases rather ridiculous: if the ‘offence’ is so minor as to warrant admonishment or a re-education process (shades of the Chinese Cultural Revolution), then surely it should have been dealt with pastorally? What is the status of these ‘penalties’? Is there some file kept on parishioners so that it is known that certain people are not to be trusted to polish the brasses because they once kissed their neighbour?[21]

1.4 Failure to provide an adequately funded public defendant service The State provides funding to assist those who cannot afford highly-priced solicitors and barristers to advise them and present their defense. In Sydney diocese an amount of $1,500 is made available to those unfortunates who are caught up in this system. The average lawyer charges some $300 per hour or more. The quantity of documentation (much of it containing irrelevant and therefore inadmissible material) can be enormous, and the process can last between 1 and 2 years, and these factors soon exhaust the amount offered towards costs. If the matter goes to a Tribunal hearing there is a further offer to pay legal costs calculated upon a scale determined by the diocese. The need to approach the State civil law system in defamation actions to correct the abuse of those improperly accused under the church system involves up-front payments of many thousands of dollars (usually only partially recovered when, as is often the case, the diocesan insurers settle the matter before it comes to a hearing).

2. There is no fair process in the church system of reception of the complaint, preliminary ‘finding’ by the Director PSU, investigation, and consideration by the PSC: The comments above deal also with the second axiom: entitlement to fair process. Clearly this is not the case in the church criminal law system. The closest that there is to fair process is in the Tribunal system, but under the 2006 amendments only some cases will be referred to a Tribunal and the Professional Standards Committee will be ‘vetting’ all the cases and dealing with many of them, according to whatever principles they may decide to apply and without judicial competence. But subject to this: where the PSC has made some recommendations, and concluded that subject to these the matter should not be referred to the Tribunal, unless the accused person accepts those recommendations within 14 days of being notified of them, then the PSC must state in the letter that the charges will be referred to the appropriate Tribunal, and the Archbishop must then appoint a person to bring the charges.
3. It ignores the principle that a person is innocent until proved guilty: In at least three cases, where in the end result the original accusations have failed either completely or (as in the case we have been looking at) dwindled to very minor, the PSU of Sydney diocese been spectacularly unsuccessful in enforcing this principle, if indeed it does exist in the church parallel criminal law system. In the Belinda Goodenough case, the gossip that ran through the parish was extraordinarily malicious and inventive, and as a result she was forced to take defamation proceedings to obtain an appropriate public apology from the rector and the diocesan hierarchy. In another case, where accusations of an affair were made not by the young woman named as the alleged lover, nor by the assistant minister’s wife but by others in the parish many months after he and his wife had left the parish, and the accusations were dismissed by the ‘experienced lawyer’ engaged to look at the case before it was referred to a Tribunal under the 2002 Ordinance, the parish gossip machine was rampant and the case was widely discussed throughout the parish, including the addition of ostensibly confidential material disclosed by the woman employed as a counselor in the parish who had counseled the wife at one stage and in defiance of all professional conventions of trustworthiness and confidentiality.

In the case we have considered where there are now only the alleged four incidents of ‘low level unintentional sexual harassment’ to be considered by a Tribunal, not only has the accused person been relieved from his ‘ministry’ of providing a decent cup of espresso coffee to parishioners but he and his wife and children have been ‘banned’ from coming to church, on the grounds (stated in a letter to the wife from the Assistant minister) that the presence of her and her children would make it unsafe for the young woman accuser. In this case there has been rampant gossip and the wife and her children have been ‘shunned’ in the streets by parishioners who should not only know better, but also should be counseled by the leadership as to their appropriate Christian responses. Unfortunately the Christian leadership in this parish at the time did not provide appropriate Christian responses. One or two of them telephoned clergy of other Christian denominations in the area to ‘warn’ them against offering Christian fellowship and support for any of the family. The important thing to note is that all these things occurred before the diocesan investigation had even commenced^[22].

4. It ignores the proper standard of proof of ‘beyond reasonable doubt’ for criminal acts: the legislation provides that the standard of proof shall be ‘on the balance of probabilities’. The architects and supporters of the legislative scheme say that in clear cases of child abuse and other criminal activities, they will refer the matter to the Police. So this legislation is going to be applied in the case of such accusations to those matters where the Police will decline to act (for want of evidence, or lack of a prima facie case perchance?), in order to give the church a chance to bring home the accusations against a person who could be found not guilty under the State system.
5. Intention: The issue of ‘mens rea’ – that is the intention to perform behaviour that is abusive, is entirely absent in this main case we have been discussing^[23]. The church legislation recognises unintentional behaviour as culpable, as in the ‘low-level unintentional sexual harassment’.
6. ‘Conviction’ on the evidence only: The case study discussion above also clearly demonstrates the way in which the church legal system violates the right of an accused person under State law only to be ‘convicted’ on evidence that has been admitted in accordance with rules of evidence in relation to the crime for which they stand charged, and they cannot be convicted simply on the basis of gossip, innuendo, anonymous accusations or even ‘trial by media’. Another problem is the power of the PSC to consider other ‘offences’ when coming to a recommendation. Like other aspects of this legislation there is a looseness of drafting that permits this to mean whatever the PSC wants it to mean.[24] In any event, taking into account other offences in relation to sentencing in the State Courts is carried out by way of disclosure after the judgment has been made, not as part of the material for the judgment. The disclosure is also of the record of proven offences as well as any that the accused asks to be taken into account. They are not vague, unsubstantiated, unsubstantial, and in one case anonymous, allegations that have not been tested in an appropriate manner.[25]

Violation of the right to remain silent and protection from self-incrimination: The diocesan Discipline Ordinance 2006 purports^[26] to make it an ‘offence’ if an accused person does not cooperate with the investigation, and answer all questions put by the investigator truthfully and promptly. Firstly, it purports to give the investigator the ‘power’ to ‘require’ the accused person to cooperate, even where that person is neither clergy nor employed by the parish or any church organisation. This is nonsense as the next clause demonstrates: it is only clergy and employees who can be then ‘charged’ with the ‘offence’ of refusing to cooperate.

Therefore this constitutes a representation of a non-existent power over volunteer parishioners. It is dishonesty such as one would not expect a church with its stated values to perpetrate. In the case of clergy and employees, they would be advised to take legal advice promptly, offer no explanations and no cooperation with the church system, and take their chances with the State legal system. For all the reasons set out above they cannot expect a professional investigation and fair process from the church under this present system.

Where parishioners and other church members have been dealt with harshly and inappropriately by the diocese through these processes under the church Ordinances, the diocesan response is so inadequate (if there is any at all) that there is no choice but for the parishioners and other church members to approach the civil courts themselves for redress.

Parishioners and other church members most frequently are forced to institute actions in respect of defamation. This is a trend that will accelerate should the church continue down this path. And as a recent case demonstrates, claims for post-traumatic stress as a result of abusive behaviour in a parish (in this case as a result of virulent gossip and shunning behaviour over false claims of child sex abuse) may also be an accelerating trend.

Sydney diocese is an extremely wealthy diocese. Also, there is a preponderance of lawyers, including barristers and Judges, who are active in the Anglican Church and, dare one say it, in some of the disputes.[27] This enables it to have access to those senior lawyers who are its members and it uses its power and ability to pay for expensive legal advice in a manner which can operate to intimidate and discourage the parishioner from pursuing legal proceedings, even where the case is a strong one. In this it would appear that at least some diocesan officers rejoice and are complacent. [28] In the case of Dr. Goodenough pleas to the Archbishop for an explanation fell on deaf ears, and she received from the Archbishop’s Executive Officer Dr. Phillip Selden such responses as ‘the matter is closed’, that there is nothing to be gained from ‘further discussion’ and that she put ‘the issue behind her.’[29]

Whenever any form of criticism of the scope of the ‘offences’ under the legislation (far beyond child sex abuse), and the scope of the persons who can be investigated and ‘charged’ under the legislation (far beyond ordained clergy and employees) and the ineptitude as well as injustice of the processes established under the legislation, the chief architects of the legislation cry ‘child sex abuse’.

When the Melbourne diocesan news journal, the Melbourne Anglican in its November 2007 issue published a letter from a Wendy Hunter , in which she lamented the church’s over-response to ‘sexual offences’ and pointed to the need to provide for responses that distinguished between different kinds of ‘inappropriate behaviours’, there were responses published in the same issue, from the Director of the Professional Standards Unit and two members of the Professional Standards Committee all of Melbourne diocese supporting the legislation. When the writer submitted a response to those responses to the editor of the Melbourne Anglican she received only the reply that the article would be submitted to the Melbourne Archbishop and the Director of the PSU, and nothing more was heard.

In November 2007, the Synod of the National Anglican Church in Australia approved the creation of a National Register of clergy and church workers merely accused (not convicted) of child abuse or sexual misconduct. The Age newspaper published an editorial about that proposal on 23 October 2007 ‘Protect the innocent, ignore the unfaithful’ which commented on the dangers of unproven accusations to the civil liberties and reputation of anyone whose name was placed on the register. In response, the Chair of the Professional Standards Commission, Garth Blake SC wrote in a letter published in The Age on 26 October 2007 ‘…while some may argue that civil rights of accused people may be breached, many hundreds of thousands of others would put first the safety of the truly vulnerable in our society.’ When the independent church newspaper ‘Market Place’ published the writer’s paper decrying the blacklist and pointing out who, under the church’s expanded definition of ‘church worker’ might find their name on it in relation to unproven allegations, such as a young woman who was a volunteer member of the youth ministry accused of having an affair with an assistant minister (not even his wife supported the allegation), the response was again threefold, a letter and an article from the Sydney diocesan Director of the PSU and another article from Garth Blake SC.[30] Clearly there are people who have a strong reaction to the legislation as a tool of preventing child abuse. Yet, as this paper has demonstrated, the 2006 Ordinance goes so very far beyond that.

 What is the real significance of this wide-reaching legislation?

If you have church legislation that you can apply to almost everyone in the congregation who has ever lifted a finger within the building; where anyone can formulate a complaint to the Director PSU based on whatever inadequate allegations occur to them and in respect of even private ‘sins and misdemeanors’ such as ‘drunkenness’ or ‘willful failure to pay just debts’; where, especially in cases where hysterical gossip and ‘cultish’ reactions such as banning and shunning are initiated by the ordained leadership and approved by senior clergy; where the complaints will be laboriously and painfully investigated and sent to a PSC and then to a Tribunal, either on the recommendation of the Committee or because the accused person does not accept the recommendations of the Committee falling short of this, all taking 18 months to 2 years or more: then what you have a demonstration of is not so much a desire to prevent and punish child sex abuse but an evident desire to gain ‘power’ over the ordinary members of the congregation.

And, which is even more concerning, if possible, is the demonstration of a two-stranded form of theology: the first, contained in the assertion made by Garth Blake SC that someone who is guilty of one of these much lesser ‘sins’ is at risk of committing the most atrocious criminal acts of child sex abuse. This is not supported by any research. The second is the theology of perfection on this earth. This is particularly beloved of extremist groups. In Christianity it is a mark of a cult, not orthodox theology: it says that only those who have achieved perfection now are worthy to be saved, and worthy to worship with like-minded people in the church. Those who are deemed by the leadership to have fallen short of this standard of perfection must be banned from the church; they must be subjected to the humiliation and psychological abuse of being the subject of rampant malicious gossip, their families must either separate from them (in order to stay in the church) or suffer banishment also. What is interesting is that only certain ‘sins’ are selected for banishment. Such sins as bearing false witness against your neighbour, as well as others committed in secret by members of the leadership, including failure to observe their ordination vows, these are not.

This is a travesty of the Christian gospel, which preaches that all are sinners and fall short of the standard required by God; it preaches that those who do sin and repent sincerely will be forgiven by God. But not, apparently by members of the church under this warped theology.

Returning to the description of Oliver Cromwell and the English Puritans with which this paper began. The English Puritans were called puritans in later times ‘because of the purity of life that they sought. They set out to reform the Church of England. Their desire was to conform the national Church to the Word of God in government, worship and practice.’ Oliver Cromwell ‘wanted to build a godly commonwealth, and he rode roughshod over those who got in his way’.

The example of Oliver Cromwell demonstrated that this is not the way to go about reforming the church, not by declaring a war on parishioners.

 End Notes

[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.

To read more articles concerning these issues go to www.anglicanfuture.org/louise and www.churchdispute.com To contact Louise email her on louise@greentreeaustralis.com

[2] Wikipedia citing various references including Rashid, Ahmed: (2000) Taliban: Militant Islam, Oil and Fundamentalism in Central Asia Yale University Press New Haven CT; and Goodson, Larry (2001) Afghanistan’s Endless War University of Washington Press. http//en.wikipedia.org/wiki/Taliban visited 7/05/2008

[3] Morrill, John: Oliver Cromwell www.bbc.co.uk/history/british/civil_war_revolution/cromwell_01.shtml visited 7 May 2008. Professor Morrill is Professor of British and Irish History, Cambridge University, UK and was President of the Cromwell Association for 10 years.

[4] Hulse, Errol The Example of the English Puritans from Reformation Today 153, Sept/Oct 1996                             www.puritansermons.com/banner/hulse 1.htm visited 7 May 2008. It is fair to say that they did not achieve their aims and instead they encountered bitter opposition and persecution. A number left for the American colony in due course to establish a peculiarly American form of Puritanism.

[5] The author is indebted to the information contained in the transcript of the Cable Lecture given by His Honour Justice Keith Mason on 9 September 2005 ‘Believers in Court: Sydney Anglicans Going to Law.’ Found on www.lawlink.nsw.gov.au/lawlink/Supreme_Court/II_sc.nsf/vwPrintI/SCO_mas… visited 19 May 2008.

[6] Ex parte The Rev George King (1861) 2 Legge 1307 at page 1311 quoted by Justice Keith Mason (now retired).

[7] At page 1324

[8] 1 Corinthians 6:1-6

[9] Putting aside, for the purposes of this paper, breaches of faith ritual and ceremonial or incompetence due to age or infirmity.

[10] To be fair, this could be perceived as problematic by some. A notable child abuser (who has now served a gaol sentence for his activities), being the very popular organist and choir master of a Sydney parish was permitted to continue in that position for some time after a number of parishioners and the Rector became aware of his activities with the boys of his choir and his Scout troupe. The parishioners set up a group of fathers who made sure the man was never alone with any of the boys (although there were obvious limitations on this). The Rector, fearing defamation proceedings, delayed sacking the man, and when he did so, did not give the real reason. The man then gathered supporters, ignorant of the real problem, to create an embarrassing backlash and walk-out by some valued parishioners.

[11] Before the introduction of these ordinances, in a Sydney parish a member of the Parish Council left his wife to reside with a young widow and her children, who were also members of the same church. The rector handled the matter with great pastoral sensitivity and to good effect: he contained the gossip and arranged for the ‘new’ family to attend a nearby Anglican church so that they continued to receive Christian pastoral support and counseling. The parish councilor resigned because he was no longer attending the parish church. His wife was able to continue to attend the parish church where her friends could offer her comfort and support. What the rector did not do was that which he might be forced to do under this legislation: he did not report the parish councilor to the Director of PSU to be investigated and dealt with, with all the accompanying distress to all the people involved including young children and many others as the parish would have fragmented over their treatment.

[12] Such as upon the resignation of the then Archbishop of Adelaide, Bishop Ian George in respect of the same issue – an inadequate response by both himself and his predecessor (during whose term many of the child sex abuse cases occurred) as the leaders of the diocese at the relevant times, not for personal wrongdoing.

[13] The National Church has no power or authority other than in an advisory capacity and cannot legislate for the individual dioceses. What it can do is recommend and its recommendations have some persuasive power at least in the issue of a proper response to child abuse.

[14] It is misleading to regard proper compliance with the rules of evidence as some sort of ‘let-out’ for a person who is ‘really guilty’ (whatever that means). In fact, the most frequently relied on rule of evidence is that of relevance: the requirement that the item of evidence that the court is being asked to consider is actually relevant to the ‘charge’. Other rules guard against the inevitable re-interpretation and embroidery that takes place when one person reports what another person said to them they saw (for example) rather than the court hearing direct from the person who saw the thing (the rule against hearsay). The rules operate to prevent at the very least the waste of the court’s time on irrelevant matters and even miscarriages of justice.

[15] Church worker means a person who – (a) is or has been a member of the clergy, or (b) holds or has held any position of leadership within the Diocese and without limiting the generality of the foregoing, a position of leadership includes – (here follows a list of board members, office-holders including a churchwarden and parish councilor, and persons holding an appointment by a rector, or others in charge in the parish).

[16] To use the terminology of the report leading to the introduction of the Code of Conduct ‘Faithfulness in Service’

[17] They just said they were comfortable with that interpretation of the legislation. However recent developments have required the Director PSU to produce evidence of an appointment by a rector to a position of leadership which neither the director nor members of the parish leadership are able to do because the actual evidence does not exist.

[18] In a recent case the Director disseminated a most unwise report prepared either by him or someone in his office to the parish leadership which stated, erroneously as it happened, that 70% of the allegations of child sex abuse, grooming and adult sexual abuse had been admitted by the ‘accused’. After the investigator found that 7 of the 13 alleged incidents (including 1 of only 2 which related to a period when the complainant was under the age of 18, being aged 14 and 16 respectively) were unsustainable, and the Professional Standards Committee rejected the second of the alleged under-age incidents as unsustainable, there are now only 4 alleged incidents over a period of 2 months when the complainant was aged 20, and now termed ‘low-level unintentional sexual harassment of an adult’ , which are denied by the accused man and which will have to be determined in a Tribunal hearing.

 

[19] For example: the Investigator sets out the ‘findings’ of the recommended charges that are said to be ‘sustained’ rather than ‘sustainable’ – a very different word with a different meaning. Those who are familiar with USA-style Court-room dramas will note that ‘sustained’ is a word used with judicial weight – as to whether an objection will be allowed or disallowed after making a judicial decision on the point. What the investigator is saying is which of the facts would be likely to ground a ‘charge’ that could be brought against the accused: that is, which of the charges would be sustainable on the facts available at the time of the investigation. As the legislated attempt to deny to the accused the right not to cooperate with the investigation is limited by the fact that it cannot be enforced against the non-clergy or employee, it is advisable for there to be no cooperation, until the accused has had a chance to see what depths of gossip and innuendo the investigator has been able to trawl.

[20] Although in the case of Drew and Pippa, there is no evidence of either in the conduct of the Disciplinary Tribunal, in particular the deputy president. See my articles on the Disciplinary Tribunal and ‘Drew’s Adventures in Wonderland’ on www.churchdispute.com

[21] In the same case, the PSC comprised six people who had to read and inwardly digest about 312 pages of mostly irrelevant material. There was only one witness of fact: the complainant herself. They added admonishment to their recommendations in respect of the only 4 alleged incidents of what they call ’low-level unintentional sexual harassment of an adult’ by unwelcome touching. The advisory team for the accused man is wondering what in fact the terms of the admonishment could be: for extending the kindness of his whole family to look after this mentally damaged and physically unwell young woman? But isn’t this what Christians are supposed to do?

^[22] There is reason to believe that the Director PSU has to bear some personal responsibility for the parish taking this extreme stance, having sent the unwise letter to the parish which contained ‘findings‘ he had made supporting a view that he had come to without proper consideration of the state of the evidence, as discussed before. It is certainly possible that the parish leadership have gone much further than he envisaged, but he is certainly powerless to reverse the damage that has been done to the family, which may yet manifest itself in life-long post-traumatic stress disorder similar to that suffered by those who have been sexually abused. In fact the response of the parish constitutes child abuse in itself within the definition in the Code of Conduct. In this case the diocese is laying down the grounds for court claims that may surface many years hence, after a child’s adult promise and adult life has been ruined.

^[23] Innocent non-sexual actions have been entirely misinterpreted and misrepresented by a young woman who suffers from Obsessive-Compulsive Disorder, a disability that is notorious for producing fantasy sexual complaints against, in particular, clergy. However, and this case illustrates another problem: there is no power for anyone to force the complainant to undergo psychiatric assessment. Also see ‘A Cautionary Tale’ and ‘A Cautionary Tale: the cover-up begins’ on www.anglicanfuture.org/louise for a full discussion of this case.

[24] The then rector’s wife made totally unrelated accusations some months later when it might have been that some reason would prevail in respect of the original complaint. She alleged that there were between 3 and any number (the parish gossip soon conflated it) female students of the accused man at the University where he had previously taught who had brought sexual harassment and abuse changes against him. The report of the investigator accepted this as a factor in his recommendations, and the papers contained signed statements by one woman and the then rector’s wife which had nothing to do with the main complaint. None of this material was kept from consideration by the PSC until after a view had been reached on the basis of relevant ‘evidence’ relating to the actual complaint but was read in conjunction with all the other material.

[25] The only complaint that is signed is one that is a prime example of ‘victim feminism’. This woman claims that he looked at her while she was a student among 15-16 others in a weekly tutorial that he was conducting. The writer has compared this with the Ormond College complaint considered by Helen Garner in her book ‘The First Stone’ in a paper ‘The First Stone Revisited’ on the website www.anglicanfuture.org/louise.

^[26] In Clauses 23 and 24

[27] One of the more recent examples is that of the involvement of the then Diocesan Advocate Mr. Neil Cameron in relation to a complaint against the then new incumbent of St. Swithun’s Pymble, the Rev. David Gilmour, in the early 1990’s. Mr. Cameron was a member of that parish. His wife was one of the nominators who recommended the Rev. Gilmour’s appointment to the parish, and who within a very short space of time then became a severe critic and was at the spearhead of the movement to remove him from the parish, although at no stage was any misconduct able to be alleged. Mr. and Mrs. Cameron and the small group they were part of just wanted the Rev. Gilmour to resign and leave the parish. As he had tenure and had not committed an offence, he could not be compelled to do this. Mr. Cameron was also at that time a partner of a leading firm of solicitors in Sydney which was instructed on behalf of the diocese in relation to civil proceedings against the luckless incumbent under a diocesan ordinance relating to incapacity due to age or infirmity (there was no sign of either in Mr. Gilmour). This litigation was unable to proceed in the Supreme Court in the long run for reasons that included the inappropriateness of reliance upon that ordinance. Subsequent Synods (a form of diocesan parliament) for several years were riven by questions about the case, with highly critical comments about its conduct, not least that the leading firm of solicitors received legal fees in six figures out of diocesan money for what proved to be a fruitless case.

[28] This comment arises from the diocesan report of the final settlement of a case for defamation brought against certain clergy of the diocesan hierarchy by Dr. Belinda Goodenough (a noted specialist pediatrician and generous volunteer in the parish children’s ministry) arising from an incident in respect of the PS to one email between her and the Rector Stephen Bainbridge in the Parish of South Coogee. The settlement was reported in the diocesan newspaper ‘Southern Cross’ in these terms: ‘The terms of settlement are confidential, but a small payment was made for a sum less than Dr. Goodenough’s legal expenses …’ Clearly they were not uncomfortable with costing an innocent person money to defend herself against a plague of unfounded gossip highly damaging to her professional and personal reputation that was generated by an unwise announcement by the Rector at a church service.

[29] Paola Totaro: ‘The email that ignited a parish war’ Sydney Morning Herald published 25 March 2006.

[30] Read ‘Overheard in Gloria Jean’ which can be found on the website www.churchdispute.com

Post filed under Anglican Church, Drew & Pippa, The Figtree Affair.