Attorney-General (NSW) (Ex rel McLeod) v Grant

High Court of Australia|1976-07-01|Before: Murphy JJ, Gibbs J

For the reasons given I hold that the General Assembly had power under s. 15 to approve of the Proposed Basis of Union 1971, provided that the procedure laid down by Pt III had been observed. It must then be considered whether there was a failure to observe that procedure, by reason of the fact that the General Assembly held a second vote of communicants and took the result of that vote into consideration in resolving to approve of the Proposed Basis of Union 1971.

If the words of Pt III are construed literally, and are not read as subject to a condition which they do not themselves state, it is clear that the procedure which they lay down was completely observed. The words "the final vote" in s. 15 plainly enough refer to the final vote on the question whether the proposed basis of union should be approved, rather than to the vote to enter into union. The final vote to approve the Proposed Basis of Union 1971 was taken in the General Assembly on 1st May 1974. It was approved by more than three-fifths of the members present. The Proposed Basis of Union 1971 had previously been remitted to State General Assemblies and presbyteries under the Barrier Act procedure and had been approved by a majority of State Assemblies and at least three-fifths of presbyteries. Before the final vote was taken communicants had been given an opportunity to answer the questions set out in s. 16 and to enable this to be done the General Assembly had, on 4th May 1973, initiated the procedure prescribed by s. 17 which had thereafter been followed. Everything required to be done by ss. 15, 16 and 17 of Pt III had been done. But the appellant submits that because an earlier vote of communicants had been taken pursuant to the resolution of 15th December 1971 the final vote of the Assembly was invalid. It was rightly said that the result of such a vote must have been regarded by the framers of Pt III as of importance for the purposes of the deliberations of the General Assembly, as well as in the determination of the disposition of property under s. 18. It was submitted that once the General Assembly had approved of a proposed basis of union, the rights of minorities were to be determined by reference to the vote taken before that approval was given, and that it was not competent to the General Assembly to take another vote, at least without rescinding the approval already given. In support of this argument reliance was placed on the word "first" which appears in s. 15 and on the fact that s. 17 provides a procedure for taking one vote and not a succession of votes. It was further submitted that s. 15 envisages that the questions whether a proposed basis of union should be approved and whether the church should enter into union should be considered more or less contemporaneously. As to this submission it may be said at once that although in fact in the present case both these questions were considered on the same day there is no indication in Pt III of any intention that the two questions should be considered contemporaneously, and even if such an intention did appear this would not seem to advance the argument that there was no power to take a second vote.

The fact that s. 17 is expressed in the singular affords no support to the view that only one vote may be taken. Section 17 deals with the method of arranging and conducting any vote, and is naturally expressed in the singular, because in relation to any one vote any procedure required is to take place only once, e.g. only one date is to be prescribed for the purging of the communion rolls and for the close of voting respectively. The requirement in s. 15 that the proposed basis of union shall "first" be remitted means only that this shall be done before the proposed basis of union is approved, and does not suggest that a remit may only be made once. Of course it is right to say that s. 18(b) refers to one particular vote of communicants taken "prior to the date of the final vote of the general assembly approving such union" but it does not follow that only one vote may be taken. It is the vote held "before the final vote is taken" in the General Assembly approving the proposed basis of union that is material, and if more than one vote of communicants has been taken before that time there is no difficulty in reaching the conclusion that it is the latest vote - the vote immediately preceding the final vote in the General Assembly - that matters.

The consequences of construing s. 15 as permitting only one vote to be held before any particular basis of union is approved would in some possible situations render the provisions of Pt III unworkable. If a vote of communicants indicated strong opposition to a proposed union, and in consequence a resolution to approve the proposed basis of union was defeated in the General Assembly, it would be impossible subsequently ever to take another vote of communicants before again approving that proposed basis of union, even if, after a lapse of time, there was a change of opinion within the church and overwhelming support for union upon that basis. Similarly, if after a vote of communicants had been taken the General Assembly approved a proposed basis of union, but no union came about because the other church concerned decided not to enter into it, and if subsequently the other church repented of its decision and renewed attempts to bring about a union, it would not be possible to take another vote of communicants and again approve the basis of union. The appellant suggested that it might be possible to take a second vote if the approval of a proposed basis of union had first been formally rescinded, but it is difficult to see any reason why the rescission of an approval should make any difference if the appellant's argument is correct; no such rescission could alter the fact that the earlier vote had been taken. If the provisions of Pt III are ambiguous the inconvenient results that would follow from adopting the construction suggested by the appellant might properly provide a reason for rejecting that construction.

In my opinion, however, Pt III on its proper construction is not ambiguous and does not have the effect suggested by the appellant. The power to enter into union may only validly be exercised if the procedure laid down in the provisions of Pt III is followed but it is not permissible to import further requirements not contained in the provisions themselves. According to the expressed will of the Legislature, if the General Assembly has by a three-fifths majority voted to approve of a proposed basis of union that approval will be valid if, before the final vote was taken, (1) the proposed basis of union had been remitted to State Assemblies and presbyteries under the Barrier Act procedure and approved by a majority of Assemblies and at least three-fifths of the presbyteries of the whole church, and (2) a vote of communicants had been taken in accordance with ss. 16 and 17. Provided that these things were done it does not matter that other things may have been done in addition, and in particular it is immaterial whether earlier remits had been made or earlier votes had been taken. The appellant's argument seeks to read into Pt III a requirement which its provisions do not contain.

It was further suggested that the resolutions passed on 4th May 1973 offended against Standing Order 83 of the Standing Orders of the General Assembly which is in the following terms:

No question which has been decided at one sederunt of a court can be reconsidered at a subsequent sederunt during the same session. At its third sederunt on 3rd May 1973 the General Assembly had decided to approve the Proposed Basis of Union 1971; at its fourth sederunt on 4th May 1973, during the same session, the General Assembly had resolved not to proceed into union, but to remit the Proposed Basis of Union 1971 again under the Barrier Act procedure, and to take another vote of communicants. The question decided at the third sederunt in these circumstances was not reconsidered at the fourth sederunt. There was no reconsideration of the question whether the Proposed Basis of Union 1971 should be approved; that question fell for consideration again at a later session, in 1974. But even if Standing Order 83 had been infringed and the resolutions passed on 4th May 1973 had been irregular, or even void, the remit in fact occurred and the communicants in fact cast their votes, so that the conditions of the exercise of the power given by s. 15 were in fact fulfilled.

For the reasons that I have given I consider that the Presbyterian Church of Australia had power to approve the Proposed Basis of Union 1971 and that it observed the prescribed statutory procedure in doing so. The challenge that has been brought to the resolutions of 1st May 1974 accordingly fails. I would dismiss the appeal but consider that it would be convenient to add to the orders made by the Court of Appeal a further order that the questions stated for the determination of the Court should be answered as follows: Question 1. Yes. Question 2. Yes. Question 3. Unnecessary to answer. Question 4. Yes.

The Presbyterian Church (New South Wales) Property Trust has given notice of cross-appeal from so much of the order of the Court of Appeal as ordered that the Trust should pay the costs of the relator, including the costs paid by the relator to the first defendant. It was conceded that the Court had a discretion to make the order that it did, but it was urged that the discretion had been wrongly exercised. The principles by which an appellate court is governed on an appeal from an exercise of discretion are familiar, and are stated for example in House v. The King [18] . It might be enough to say that, within those principles, no ground whatever has been made out for interfering with the exercise by the Court of Appeal of its discretion. However, it may be added that the case is one in which the destination of trust property of considerable value depended on the proper construction of statutory provisions whose meaning was at least open to argument, that if these proceedings had not been instituted it would have been prudent for the Trust to seek the guidance of the Court, and that it appears that when the matter was before the Court of Appeal the order for costs made by that Court was not opposed by the legal representative of the Trust. The cross-appeal should be dismissed.

I would dismiss the appeal with costs but would answer the questions stated as I have indicated above, and would dismiss the cross-appeal with costs.

I am in entire agreement with the reasons for judgment prepared by Gibbs J. I would dismiss this appeal and make the orders which his Honour proposes.

I have had the advantage of reading the reasons for judgment prepared by Gibbs J. with which I agree.

Accordingly I would dismiss the appeal and I would make the orders proposed by his Honour.

I agree with the orders proposed by Gibbs J. and with his reasons.

This appeal concerns the validity of actions taken to unite the Presbyterian Church of Australia with the Congregational Union of Australia and the Methodist Church of Australasia into the Uniting Church of Australia.

The proposed union affects the affairs and property of the Presbyterian Church throughout Australia. The Church's legal status is complicated. It has sought statutory recognition and therefore has problems (because of the federal system of Australian government) similar to those affecting the trade union movement (see Moore v. Doyle [19] ; "Report of the Committee of Inquiry on Co-ordinated Industrial Organisations", 1974). Its legal personality (or personalities) is recognized by acts of the State Parliaments and Ordinances of the Territories in references to the Presbyterian Church of Australia and the State Presbyterian Churches (cf. Bonsor v. Musicians' Union [20] ).

The State Acts and the Territorial Ordinances (e.g. Presbyterian Church (Proposals for Union with Other Churches) Ordinance 1972 A.C.T.) which express a power to unite (subject to limitations on the destination of church property) involve the States and the Commonwealth in religious affairs.

In applying common law and equitable principles in Australia to church property litigation, courts should not decide questions of doctrine, practice or procedure in ecclesiastical government. This would exceed the judicial sphere and interfere with religious freedom. Judicial determination of religious doctrine and practice is as much state interference in religious affairs as legislative and administrative measures are. The involvement of the United Kingdom courts in religious affairs is historically connected with government involvement in religious affairs. In my opinion, courts in Australia should not follow United Kingdom courts in this respect.

The approach in Watson v. Jones [21] (decided by the Supreme Court of the United States on non-constitutional grounds) is correct and applicable. The Court there said [22] :

"The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect All who unite themselves to such a body" (the general church) "do so with an implied consent to" (its) "government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them" (sic) "reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for." As the Supreme Court later said of this passage, The logic of this language leaves the civil courts no role in determining ecclesiastical questions in the process of resolving property disputes. (Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church [23] .) and further, The opinion radiates a spirit of freedom for religious organisations, an independence from secular control or manipulation - in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine. (Kedroff v. St Nicholas Cathedral [24] ). 1. (1871) 13 Wall 679 [20 Law. Ed. 666]. 2. (1871) 13 Wall, at pp. 728-729; [20 Law. Ed., at pp. 676-677]. 3. (1969) 393 U.S. 440, at p. 447 [21 Law. Ed. 2d 658, at p. 664]. 4. (1952) 344 U.S. 94, at p. 116 [97 Law. Ed. 120, at p. 136].

As the United States cases indicate, courts may properly determine church property disputes on neutral principles and also interfere where decisions of ecclesiastical government are based on fraud, collusion or arbitrariness. Otherwise, only marginal inquiry into church government is permissible. In cases such as this, the decisions of the governing body of the church should be accepted on issues of practice and procedure of ecclesiastical government, as well as issues of doctrine (Watson v. Jones [25] ; Gonzales v. Archbishop of Manila [26] (another non-constitutional case)). It has not been suggested in this case that the decisions of the General Assembly of the Presbyterian Church are affected by fraud, collusion or arbitrariness.

(1871) 13 Wall 679 [20 Law. Ed. 666]. 2. (1929) 280 U.S. 1 [74 Law. Ed. 1].

In my opinion, the New South Wales Parliament did not intend by the passage of the uniting Acts that the courts should hear and decide controversies over religious doctrine or the practice or procedure of church government.

Many of the appellant's submissions would require this Court to inquire into and decide controversial questions of doctrine (or departure from doctrine) or practice or procedure in ecclesiastical government. In my opinion, however forceful these arguments appear to be, they are outside the judicial sphere. Leaving them aside, I find no ground to support the appellant's case. The Court of Appeal was right to dismiss the proceedings and not answer the questions proposed. In my opinion, they cannot be resolved on neutral principles of law as some at least involve questions of religious doctrine, or practice and procedure of ecclesiastical government.

The possible effect in these proceedings of s. 116 of the Constitution has not been raised.

The appeal should be dismissed. In the Court of Appeal, the order for costs made by that Court was not opposed by those who now cross-appeal against the order. The cross-appeal should be dismissed.

High Court of Australia Gibbs, Stephen, Mason, Jacobs and Murphy JJ. Attorney-General (NSW) (Ex rel McLeod) v Grant [1976] HCA 38

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