Speech given by Mr S H Fraser, Law Agent (GAA 1997)



The issue of the ordination of women to the eldership is obviously a very significant issue in the life of the Church. But even more significant is the constitutional issue which this issue raises and which this Assembly now squarely faces with the proposed resolution of Mr Martin, namely that the Assembly declares that the ordination of women to the eldership is a question of doctrine and government. I refer to those sponsoring this motion as the Overturists, as this is their first step in supporting the Overture from the Victorian Assembly on this issue, being Overture (i).

The starting point should be to have a correct understanding of the constitution of the Federal Church. I emphasise the word Federal because it needs to be understood that what we have in Australia is unusual in terms of Presbyterian polity. As you are aware prior to the creation of the Federal Church there were six autonomous and independent State churches each governed by a General Assembly. That Assembly had supreme powers within the State.

The creation of the Presbyterian Church of Australia did not merely extend the pyramidical form of each State church to make one all-embracing whole: instead the nature of the added federal structure was such that it did not turn the State churches into provinces of the new whole, but left them intact except insofar as what was done led to interference with them. Hence the State churches continue as entities within the total constitution and their General Assemblies remain as supreme governing bodies in the respective States.

The constitution of the Federal Church is the Scheme of Union of 1901 which is divided into two parts. The Basis of Union deals with the doctrinal standards of the Church. The Articles of Agreement deal with the system of government of the Church. It is in the Articles of Agreement that one finds the establishment of the General Assembly of the Presbyterian Church of Australia and its constitution and powers. Article IV needs to be referred to in full. It provides as follows:

"The General Assembly shall have functions legislative, administrative and judicial; supreme with respect to the doctrine, worship and discipline of the Church, the mission as to heathen, the training of students, the admission of candidates to the ministry, the reception of ministers from other churches, Christian education, and home missions, and the publication of the NationalChurch Journal in so far as hereinafter provided."

It is only in these specific areas where the powers of the General Assembly are supreme (l note in passing not exclusive) that the General Assembly may direct the State churches.

Whilst the proposed motion of the Overturists does not specifically say so, the assumption must be that if the General Assembly declares the subject matter of the Overture as one of "doctrine" then the subject matter of the Overture falls within the supreme powers of the General Assembly in Article IV. It is interesting that the Overturists do not invite the Assembly to declare that the issue is solely one of doctrine. Rather they invite the Assembly to declare that the issue is one of doctrine and government. Now the term government does not appear anywhere in the Articles of Agreement.However it does appear in the Preamble to the Scheme of Union where it is stated that the various State churches:

holding the same doctrine, government, discipline, and form of worship.... agree to unite on the following basis

When in Article IV we find that the supreme powers of the General Assembly include doctrine, worship and discipline of the Church, the omission of government is deliberate.This is consistent with the long held view, and certainly one that was vigorously argued by the late Maxwell Bradshaw as Procurator, that the General Assembly does not have supreme power in the area of government. Whether this situation is logical or ideal I need not consider now - this is the situation which we have.

The Overturists are seeking to establish a novel proposition, which is that an issue may be at the same time both one of doctrine and one of government. Presumably they do so because they accept the view which has always previously prevailed that matters of government are not within the jurisdiction of the General Assembly of Australia. The Overturists do not seek to get around that principle by arguing that the admission of elders is not a matter of government, which it clearly is. Rather theyseek to get around it by the novel concept that an issue can be both government and doctrine at the same time.

I have an initial logical objection to the suggestion that an issue can be both doctrine and government. Simply as a matter of construction I suggest that Article tv of the Articles of Agreement is not intended to be read in that way and that the list of functions of the General Assembly of Australia is intended to list various items each of which are different from the other. After all, who would argue that there is no element of doctrine involved in, say, worship, or admission of candidates for the Ministry, or any of the other specific heads of power?

But more importantly if an issue of government can also be an issue of doctrine because there is a doctrinal element then would not the same apply to every issue whicharises in the Church? A Church by its nature deals with the things of God. Sometimes these issues might be quite spiritual, other times they might be quite practical. But there is always doctrine involved. The operations of a State social service committee might be dealing with practical help for the needy, but there is an element of doctrine involved. If the proposition is accepted that wherever there is an element of doctrine then the power of the General Assembly to be supreme in doctrine immediately applies, then we have transferred to the General Assembly of Australia supreme powers in the total life of the Church. This is a revolutionary concept and one which would effectively rewrite the Federal Constitution of the Church.

By way of example, there is a similarity with which, in our Australian constitution, the Federal Government has been able in recent years to exploit its external affairs power to become involved in State matters. It has done this because of the availability of United Nations treaties which deal with subject matter which under our Australian constitution belongs to the States, such as criminal law. The Overturists would see a similar expansion of the powers of the General Assembly by arguing that ail matters arising under Scripture constitute the doctrine of the Church through Clause 1 of the Basis of Union and not just its confessional statement in Clause 2.

If the Assembly agrees as it should that it is not open to it to take such a revolutionary interpretation of its own powers then that naturally raises the question as to what limit there is on the power with respect to doctrine. I think we should start by going back to those words in the Preamble to the Scheme of Union which refer to the State churches holding the same doctrine, government, discipline and form of worship. So far asI can tell the State churches all had as their constitutional documents the various documents of the Westminster Assembly of Divines. The key documents are those which I have listed in my amendment to the notice of motion namely the Confession of Faith, the Directory for Public Worship, and the Form of Presbyterial Church Government and the Ordination of Minsters.

I see the same concepts in the first book summarising the constitution of laws in the Church of Scotland being the Collections Concerning the Government of the Church of Scotland by William Stuart of Perdivan written in 1708 to 1711. In his preface he states as follows:

“l have divided these collections into four books. The first treats of Church Government, which principally concerns Her Office-bearers and Judicatories. The second is concerning the Worship of God and Sacred Things with what relates to the maintenance thereof. The third and fourth books treat of Church Discipline.”

The second edition of Mair’s Digest ofChurchLaws was printed in 1895. It was no doubt the main reference work used by the framers of our Federal Scheme of Union. The opening sentence of that book is as follows:

"The Constitution of the Church of Scotland might be said to consist of those principles or laws which may not be departed from in its doctrine, government, discipline or worship."

This same distinction has continued as the foundational basis for PresbyterianChurches. If you look at the introduction to the current edition of Cox's Practice and Procedure in the Church of Scotland you find that after a brief historical summary the author refers to the "main principles of the constitution" under the headings of doctrine, government, worship and discipline.

The doctrine of the Church is found in the Confession of Faith as referred to in Clause 2 of the Basis of Union which includes also the declaratory statement which makes reference to a number of doctrinal matters. The Confession of Faith deals with general Christian doctrine. It is on the basis of the Confession of Faith read in the light of the declaratory statement that we, as ministers and elders, subscribe to the doctrine of the Church. This is the doctrine which we are required to accept under the formula as provided for in Clause 6 of the Basis of Union. You should note that Clause 6 of the Basis of Union, after requiring acceptance of the subordinate standard with the explanations given in the declaratory statement as a confession of faith, further requires the subscriber to accept:

a. the purity of worship practiced in the Church, and

b. the Presbyterian government thereof.

Accordingly the clear distinction between doctrine, worship and government is maintained in Clause 6. The subscriber is finally required in Clause 6 to "assert, maintain and defend the doctrine, worship and government of this Church". The doctrine of the Church must be a known entity. If this General Assembly has the power to declare anything that it likes to be doctrine on the basis of the supreme standard then the certainty of knowing what constitutes the doctrine of the Church is abandoned. The doctrine must, consistently with the Basis of Union, relate to the doctrine as found in the subordinate standard. An office bearer can be charged with heresy for not accepting this doctrine. But I have difficulty seeing how a charge for heresy could be made out against anyone who can sign the formula yet does not accept some issue outside the confessional standard which is declared by the General Assembly to be doctrine, yet heresy in the nature of it is rejection of accepted doctrine.

If support is needed for this reasoning I refer to a major enactment by the General Assembly of the Free Church of Scotland in 1851. After the Disruption of 1843 that Church prepared a statement of position which was adopted in full by the Assembly. Its first sentence is as follows:

"When it pleased Almighty God, in His great and undeserved mercy, to reform this Church from Popery by presbyters, it was given to the Reformers, amid many troubles, to construct and model the constitution of the Church, in doctrine, worship, discipline, and government, according to the word of God, and not accordingly to the will of earthly rulers".

After a long historical narrative, the enactment reaches the Westminster documents and states:

"These several formularies, as ratified, with certain explanations, by Acts of Assembly in 1645, 1646 and in particular 1647, this Church continues till this day to acknowledge as her subordinate standards of doctrine, worship and government:- with this difference, however, as regards the authority described to them, that while the Confession of Faith contains the creed to which, as to a confession of his own faith, every office-bearer in the Church must testify in solemn form his personal adherence; the Directory for Public Worship, the Form of Church Government, and the Directory for Family Worship, are in the nature of regulations, rather than of tests - to be enforced by the Church like her other laws, but not to be imposed by subscription upon her ministers and elders."

Not only does this illustrate the clear distinction between doctrine and government, but also the dangers which can arise from blurring this distinction. Is there a risk that, in the future, ordination vows will be treated as extending to government rather than doctrine? Could it in the future be heretical to be of the opinion, for example, that women should be eligible to be elders?

The matter can be tested in another way. Clause 3 of the Basis of Union provides that:

"Any proposed revision or abridgment of the subordinate standard of the Church, or restatement of its doctrine shall first be subject to a barrier act procedure.

The Overturists are not seeking to apply any Barrier Act procedure. They seek this Assembly to make a decision here and now that women are excluded from the eldership on grounds of doctrine. They therefore must argue that the proposed Overture is not seeking a restatement of the doctrine of the Church. Yet the resolution before us is that the matter be declared to be one of doctrine. They would need to argue that doctrine in the Articles of Agreement means something different from "doctrine" in the Basis of Union. Frankly I think this would be untenable.

Consider the Barrier Act point a little further. It has become fundamental to Presbyterian practice that Barrier Act procedure apply to major changes in the life of the Church. I extract the following words from the actual Barrier Act of the Church of Scotland of 1697:

"Considering the frequent practice of former Assemblies of this Church, and that it will mightily conduce to the exact obedience to the Acts of Assemblies, that General Assemblies be very deliberate in making of the same, and that the whole Church have a previous knowledge thereof, and their opinion be had therein, and for preventing any sudden alteration or innovation, or other prejudice to the Church, in either doctrine or worship, or discipline, or government thereof, now happily established: do, therefore, appoint, enact and declare, that before any General Assembly of this Church shall pass any Acts which are to be binding rules and constitutions to the Church, the same Acts be first proposed as Overtures to the Assembly, and, being by then passed as such, be remitted to the consideration of the several Presbyteries of this Church, and their opinions and consent reported by their Commissioners to the next General Assembly following, who they may then pass the same into Acts, if the more general opinion of the Church, thus had, agree thereto."

What is proposed by the Overture could well be described as a "sudden alteration or innovation in either doctrine or worship or discipline or government" of the Church. Now the fathers of the constitution of the Presbyterian Church of Australia did not provide a Barrier Act procedure for the exercise of powers under Article IV but they did provide a Barrier Act procedure for a restatement of the doctrine of the Church in the Basis of Union. Surely it must have been everyones’ intention that a major change of doctrine should be subject to Barrier Act procedure. Now that leaves the Overturists in a difficult position. Either they have to argue that the issue, being one of doctrine, has to be remitted under the barrier act procedure of Clause 3 of the Basis of Union, which could invoke Clause 4 which gives rights for dissenting congregations. Alternatively the Overturists have to argue that the General Assembly can make a major change in an area of doctrine which does not require any Barrier Act procedure at all and which is clearly contrary to the intent of the Barrier Act.

It may well be timely for the Church to consider just what meaning is to be given to the word "doctrine" in Article IV. But in my view it would be both wrong and reckless to adopt the Overturists' view of doctrine simply to achieve an ulterior motive, namely to prevent the entry of women to the eldership. Where one draws the line on the meaning of doctrine could be difficult. My amendment refers to the Westminster documents and the historic understanding the Church in this issue. The issue is one which was briefly considered by the Code Committee over the last few years as we were reworking new Articles of Agreement for submission to this Assembly. My preference would have been to have "doctrine" in Article IV qualified to refer to the express doctrine of the Church and linked to the subordinate standard in the Basis of Union. However difficulties of defining this and reaching agreement meant that the Code Committee decided to leave the issue for the wisdom of General Assemblies in the future. I hope that this confidence in the wisdom of the General Assembly is not misplaced.

The procedures adapted by the Overturists suggest that they are approaching the issue of women in the eldership in the same manner as the issue of women in the ministry. But there are two critical distinctions. I should point these out because you may well be wondering where, if you rely to my comments, the position is left with the existing barrier to women in the Ministry.

It is true that in 1991 (Min 66) the General Assembly of Australia declared the issue of women in the Ministry to be a matter of doctrine, although there was no such resolution when the applicable Barrier Act procedure was commenced by the 1988 Assembly. What did the General Assembly mean by that statement? Did it mean that it was a matter of doctrine within Article IV? It did not say so but even if it did it doesn't matter. That decision of the General Assembly is what lawyers call obiter dicta. It is a decision which is not necessary for the subsequent exercise by the General Assembly of its powers. The founding fathers of the Constitution clearly intended that training for the ministry would operate on a national basis with a uniform standard of entry and training. Article IV specifically says that the General Assembly has supreme functions with respect to "the admission of candidates to the Ministry". The General Assembly therefore has an explicit and clear power in Article IV which confers upon the General Assembly authority to make decisions regarding the admission of candidates to the ministry. It was not either necessary or desirable for the General Assembly to have resolved that the matter was one of doctrine.

In any event the General Assembly did not even rely on Article IV. You have to go back to what occurred in 1974. When the General Assembly agreed to admit women to the ministry it did so by placing a new Article in the Articles of Agreement which had this effect. A matter of this kind, in the Articles of Agreement, is a matter of government. Certainly in the Westminster documents the ordination of ministers is part of the Presbyterial Form of Church Government. But I think the persons responsible for suggesting the new Article did so for another reason, which was that they came up against the Barrier Act problem which I have referred to above. The proposed change was a very important change and one which clearly should go down under a Barrier Act procedure. But where was the procedure? It wasn't a change in the doctrine of the Church for the purposes of Clause 3 of the Basis of Union because nowhere in the subordinate standard is the issue referred to, it being a matter of government. Furthermore Article IV does not have a Barrier Act procedure. The only Barrier Act procedure which could have been used was under Article Xlll to vary the Articles of Agreement. I suggest that those responsible proposed that the issue of women in the ministry be dealt with by a separate Article in order to use the Barrier Act provision dealing with amendments to the Articles. So when the General Assembly decided to reconsider this issue in 1988 by proposing to delete the words in Article Vlll what had authorised women in the ministry and replace them with a new Article, either approving or disapproving women in the ministry, it was not relying upon powers under Article IV. Article IV does not control what can be placed elsewhere within the Articles and an Article on any subject matter can be included provided that it complies with the Article Xlll Barrier Act procedure and does not constitute a revision of the standards of the Church or doctrine as referred to in Clause 3 of the Basis of Union.

Let me say in passing that the unnecessary declaration by the General Assembly in 1991 that the issue of women in the ministry was a matter of doctrine was the main problem we faced in the legal proceedings after the decisions which challenged the legal validity of the new Article. The challenge was that as the issue was doctrine it should have been remitted under Clause 3 of the Basis of Union which it was not. If the declaration had not been made it would have been a much harder argument to sustain. Fortunately, wenever got that far in the proceedings, because the Court upheld our submission that the plaintiffs lacked legal standing to bring the action because their proprietary interests were not at risk, as the Assembly had specifically protected the rights of existing female ministers and candidates. But do not assume that we would have won on the main issue if the judgement of the Supreme Court had reached that point.

But with the issue of women in the eldership there is no equivalent situation. There is no general power in Article IV dealing with eldership as there is for the admission of candidates to the ministry. What the Overturists should be doing, to give effect to their intentions, is seeking to have Article IV amended by the addition of a new power such as: "the admission of persons to the eldership of the Church"

If such a power were to be added by way of amendment to the Articles then the General Assembly could at that time make a determination on this issue. Alternatively the Overturists could follow more closely what was done with the issue of women in the ministry and propose a special Article, although in my view this is undesirable and should not have occurred with the women in the ministry issue. The Articles should provide the framework within which decisions and policies are determined and should not comprise actual policy decisions.

In summary there are ways within the constitution of the Church that the Overturists could pursue their objectives. But the way which has been proposed, namely to seek to have the issue declared to be one of doctrine, is unsound and if accepted would constitute a fundamental change to our constitutional position.

Moderator, I could have sought simply to challenge the competency of the motion but I have proposed an amendment as I felt it was better to make a positive statement to more adequately express what I hope is the mind of the Assembly on this matter for the guidance of the Church in the future. I urge commissioners to support this amendment.

Extracted by Bruce Meller from GAA BB 1997, pp. 138-143

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