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Published online by Cambridge University Press: 02 July 2009
Even though the church law of the Anglican Church in New Zealand is based upon the consensus of the members of the Church, the laws of the State also have an important part to play. In particular, not only is the Church, as a juridical body, subject to the law of the land, it has also relied upon the State for the enactment of certain laws. This has been necessitated by the evolution of the Church in New Zealand, and is also a legacy of the pre-colonial Church of England. This is also affected by the lack of an indigenous method or style of approach in the exposition of ecclesiastical law.
Professor of Law at the Auckland University of Technology.
2. Const. Preamble, 18: ‘this Church is part of and belongs to the Anglican Communion’. ‘Const.’, as used hereafter, refers to the Constitution of the Anglican Church in New Zealand, as revised in 1992.Google Scholar
3. Const. Preamble.Google Scholar
4. Const. Preamble, 10. This is consistent with the emphasis on self-regulation expressed in the 1850 letter from a group of New Zealand laity led by the Governor, Sir George Grey, to Bishop Selwyn; V Colonial Church Chronicle (1852), p. 161.Google Scholar
5. Under secular legislation the Church of England in Nova Scotia (Mutiny Act 1758 [32 Geo. II c. 5] [GB]), New Brunswick (Trade with America Act 1786 [26 Geo. III c. 4] [GB]), and Prince Edward Island (Indemnity Act 1802 [43 Geo. III c. 6] [UK]) enjoyed certain statutory privileges over other churches.Google Scholar
6. Though Scandrett v. Dowling (1992) 27 N.S.W.L.R. 483 (NSW) would appear to support the proposition that Church members are associated only on the basis of a shared faith without legal sanction for its enforcement; Mr Justice Bruce McPherson, ‘The Church as Consensual Compact, Trust and Corporation’, Australian Law Journal 74 (2000), pp. 159, 171.Google Scholar
7. In particular, see Rex Ahdar, ‘New Zealand and the Idea of a Christian State’, in Rex Ahdar and John Stenhouse (eds.), God and Government (Dunedin: University of Otago Press, 2000), pp. 59–76.Google Scholar
8. Thomas S. Eliot, The Idea of a Christian Society (London: Faber and Faber, 1939), p. 26.Google Scholar
9. David Smolin, ‘Regulating Religious and Cultural Conflict in Postmodern America: A Reply to Professor Perry’, Iowa Law Review 76 (1991), pp. 1067–1104 (1097). See also Ivanica Vodanovitch, ‘Religion and Legitimation in New Zealand: Redefining the Relationship Between Church and State’, British Review of New Zealand Studies 3 (1990), pp. 52–62 (52) (‘non-specific and non-sectarian Christianity’). However, (Sir Robert) Stout C.J., a freethinker, characterized New Zealand as a secular state; Doyle v. Whitehead (1917) N.Z.L.R. 308, 314; Peter Lineham, ‘Freethinkers in Nineteenth-Century New Zealand’, New Zealand Journal of History 19 (1985), pp. 61–81 (71).Google Scholar
10. Important surviving examples being the Roman Catholic Lands Act 1876 (NZ) and the Roman Catholic Bishops Empowering Act 1997 (NZ).Google Scholar
11. The latter may be attributed to the survival of the faculty jurisdiction. For this, see George H. Newsom, Faculty Jurisdiction of the Church of England (London: Sweet & Maxwell, 2nd edn, 1993).Google Scholar
12. See, for instance, the Thirty-Nine Articles of Religion, enacted in 1562, and confirmed in 1571 by the Subscription (Thirty-Nine Articles) Act 1571 (13 Eliz. I c. 12) (England); there has occasionally been talk of this status ending, a possibility which was again raised with the appointment of Rowan Williams, Archbishop of Wales (where the Anglican Church is dis-established), as Archbishop of Canterbury. For his translation, see Anglican Communion News Service, ‘Announcement of the 104th Archbishop of Canterbury’, July 23, 2002, available at http://www.anglicancommunion.org/acns/articles/30/50/acns3072.htm (accessed on July 31, 2003).Google Scholar
13. By the Irish Church Act 1869 (32 & 33 Vict. c. 42) (UK), the Church of Ireland is now a voluntary association; State (Colquhoun) v. D’Arcy (1936) I.R. 641. The independent Church in Wales was created by the Welsh Church Act 1914 (4 & 5 Geo. V c. 91) (UK), though dis-establishment was delayed until after the end of the First World War; Suspensory Act 1914 (4 & 5 Geo. V c. 88) (UK); Welsh Church (Temporalities) Act 1919 (9 & 10 Geo. V c. 65) (UK). The Scottish Episcopal Church was dis-established in 1689 (Claim of Right Act 1689 c. 28) (Scotland). The Church of Scotland is established in a different sense to that used in England, being more a national Church than a legally established one; Gordon Donaldson, The Scottish Reformation (Cambridge: Cambridge University Press, 1960).Google Scholar
14. Barbados — Anglican Church Act 1969 (Barbados) (see Blades v. Jaggers [1961] 4 WIR 207, 210); Bermuda — Church of England in Bermuda Act 1975 (Bermuda); Dominica — Laws of Dominica 1961, Ordinance 1878 (Dominica); Grenada — Church of England Dis-establishment Act 1959 (Grenada); Jamaica — Church of England Dis-establishment Law 1938 (Jamaica).Google Scholar
15. The Church in India remained established, at least in some respects, until the Indian Church Act 1927 (17 & 18 Geo. V c. 40) (UK); Indian Church Measure 1927 (17 & 18 Geo. V No. 1) (UK).Google Scholar
16. The Church of England in the United States of America, established in some of the colonies, was dis-established by the American Revolution in 1776; Terrett v. Taylor, 13 U.S. (9 Cranch) 43, 47 (1815). See George Brydon, Religious Life of Virginia in the Seventeenth Century (Williamsburg: Virginia 350th Anniversary Celebration Corporation, 1957), p. 14 (the Church of England was established in Virginia from 1607).Google Scholar
17. These were developed by the courts from the principles of such Acts of Parliament as the Toleration Act 1688 (1 Will. & Mary c. 18) (England), and the Nonconformist Relief Act 1779 (19 Geo. III c. 44) (GB). Scottish Episcopalians were associated under canons after 1727; P.H.E. Thomas, ‘A Family Affair. The Pattern of Constitutional Authority in the Anglican Communion’, in Stephen Sykes (ed.), Authority in the Anglican Communion (Toronto: Anglican Book Centre, 1987), p. 123. See also Leo Pfeffer, Church, State and Freedom (Boston: Beacon Press, 1953), pp. 28–62.Google Scholar
18. The dissenters were, however, long subject to persecution on account of their non-conformity.Google Scholar
19. East India Company Act 1813 (53 Geo. III c. 155) (UK). The East India Company, as a result of the 1813 Charter renewal, also paid for a Church of Scotland minister in Calcutta.Google Scholar
20. By the Submission of the Clergy Act 1533 (25 Hen. VIII c. 19) (England), the right of nomination to a bishopric lay in the Crown, and letters patent were issued in the colonies to make the nomination effective till 1863, as a consequence of Long v. Lord Bishop of Cape Town (1863) 1 Moo. N.S. 411 (PC).Google Scholar
21. Robbie A. Giles, Constitutional History of the Australian Church (London: Skeffington and Son, 1928), Appendix C, p. 198. In the 1823 letters patent of Reginald Heber, second Bishop of Calcutta, the jurisdiction covered Australia, Van Diemen’s Land and the adjacent islands; Standing Committee of the General Synod of the Church of England in Australia, The Anglican Church of Australia (Sydney: Standing Committee of the General Synod of the Church of England in Australia, c. 1981), p. 4.Google Scholar
22. Standing Committee of the General Synod of the Church of England in Australia, The Anglican Church of Australia, pp. 4, 5.Google Scholar
23. G.P. Shaw, Patriarch and Prophet: William Grant Broughton 1788–1853. Colonial Statesman and Ecclesiastic (Melbourne: Melbourne University Press, 1978), pp. 126, 127.Google Scholar
24. There was a call for a bishopric of New Zealand at the time of the formation of the Colonial Bishoprics Fund; William Sachs, The Transformation of Anglicanism (Cambridge: Cambridge University Press, 1993), pp. 115, 116.Google Scholar
25. By the Treaty of Waitangi and a series of proclamations; David Williams, ‘The annexation of New Zealand to New South Wales in 1840: What of the Treaty of Waitangi’, Australian Journal of Law and Society 4 (1985), p. 41; David Williams, ‘The Constitutional Status of the Treaty of Waitangi: an historical perspective’, New Zealand Universities Law Review 14.1 (1990), p. 9; David Williams, ‘The Foundation of Colonial Rule in New Zealand’, New Zealand Universities Law Review 13.1 (1988), p. 54.Google Scholar
26. In a parallel development, New Zealand was administered as a part of New South Wales at this time; Alexander H. McLintock, Crown Colony Government in New Zealand (Wellington: Government Printer, 1958).Google Scholar
27. Standing Committee of the General Synod of the Church of England in Australia, The Anglican Church of Australia, p. 118.Google Scholar
28. From 1841–47, Selwyn was under the Archbishop of Canterbury as Metropolitan; 1847–54 he was under the Bishop of Sydney; 1854–58 he came under Canterbury again. In 1858, Selwyn became Metropolitan for New Zealand.Google Scholar
29. A.K. Davidson, ‘ “A Sort of Cast-Off Step Daughter”: Established but Not Established. Defining Anglican Sovereignty in Colonial New Zealand’, Anglican Historical Society Newsletter 38 (2007), p. 5.Google Scholar
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31. Ross Border, Church and State in Australia 1788–1872 (London: S.P.C.K., 1962), p. 186.Google Scholar
32. Colonial Church Chronicle V (1852), p. 161; Colonial Church Chronicle VI (1853), p. 168f.Google Scholar
33. See, for example, E.D. Daw, ‘Church and State in the Empire: The Conference of Australian [sic] Bishops 1850’, Journal of Imperial and Commonwealth History 5.1 (1976), pp. 251–69.Google Scholar
34. Daw, ‘Church and State in the Empire: The Conference of Australian [sic] Bishops 1850’, p. 3.Google Scholar
35. Though the role of the Crown was not altogether ignored: PROVIDED THAT nothing herein contained shall prevent the General Synod from accepting any alteration of the above-named formularies and Version of the Bible as may from time to time be adopted by the United Church of England and Ireland, with the consent of the Crown and of Convocation.– Const. A2, 3Google Scholar
36. Ross Border, Church and State in Australia 1788–1872 (London: S.P.C.K., 1962), pp. 190–98.Google Scholar
37. This was introduced by the New Zealand Constitution Act 1852 (15 & 16 Vict. c. 72) (UK). There were limitations upon the authority of colonial legislative assemblies to change settled principles of the common law until the passage of the Colonial Law Validity Act 1865 (28 & 29 Vict. c. 63) (UK).Google Scholar
38. Border, Church and State in Australia 1788–1872, p. 204.Google Scholar
39. Border, Church and State in Australia 1788–1872, pp. 192, 193.Google Scholar
40. After the diocese of New Zealand (eventually to be renamed Auckland in 1868), dioceses were subsequently formed in Christchurch (1856), Waiapu, Wellington and Nelson (1858–59). Dunedin was added 1869 (formerly part of Christchurch), and Waikato (from the southern part of Auckland) in 1925.Google Scholar
41. Two bishop, eight clergymen, and seven laymen. The two bishops at the conference were Selwyn himself and Bishop H.J.C. Harper. Harper arrived in New Zealand in December 1856. There was an error in Harper’s letters patent and he was put under the jurisdiction of Australia while Selwyn was under Canterbury; Davidson, ‘ “A Sort of Cast-Off Step Daughter”: Established but Not Established. Defining Anglican Sovereignty in Colonial New Zealand’, p. 4.Google Scholar
42. Since the passage of the Irish Church Act 1869 (32 & 33 Vict. c. 42) (UK), no longer the United Church.Google Scholar
43. Const. A.1.Google Scholar
44. Const. Preamble.Google Scholar
45. In 1862, when the diocese of Ontario was formed, the bishop was elected in Canada, and consecrated under a royal mandate, letters patent being by this time unused. And when, in 1867, a coadjutor was chosen for the bishop of Toronto, an application for a royal mandate produced the reply from the colonial secretary that ‘it was not the part of the crown to interfere in the creation of a new bishop or bishopric, and not consistent with the dignity of the crown that he should advise Her Majesty to issue a mandate which would not be worth the paper on which it was written, and which, having been sent out to Canada, might be disregarded in the most complete manner’. The Canadian bishops pressed the Archbishop of Canterbury to convene a conference of all the world’s Anglican bishops, and the first ‘Lambeth Conference’ met in 1867, as a consequence of this jurisdictional difficulty, as well as the questions regarding the Church’s ability to deal with Bishop Colenso; Jan Nunley, ‘Authority versus autonomy an old debate for Anglicans’, Episcopal News Service (2001) 47 (February 23, 2001) at http://www.episcopalchurch.org/ens/2001-47.html (accessed on October 9, 2002). See also Margaret Ogilvie, Religious Institutions and the Law in Canada (Scarborough: Carswell, 1996).Google Scholar
46. Border, Church and State in Australia 1788–1872, p. 249; See also D.N. Swain, ‘Self Government in the Anglican Church in New Zealand, 1838–1865’ (Victoria University of Wellington, MA thesis, 1965); G.A. Phillipson, ‘The Thirteenth Apostle, Bishop Selwyn and the Transplantation of Anglicanism in New Zealand, 1841–1868’, (University of Otago, PhD thesis, 1992); Warren Limbrick, Bishop Selwyn in New Zealand 1841–68 (Palmerston North: Dunmore Press, 1983); John H. Evans, Churchman Militant: George Augustus Selwyn, Bishop of New Zealand and Lichfield (Wellington: Allen & Unwin/Reed, 1964); A.K. Davidson, Christianity in Aotearoa: A History of Church and Society in New Zealand (Wellington: Education for Ministry, 3rd edn, 2004).Google Scholar
47. William Sachs, The Transformation of Anglicanism (Cambridge: Cambridge University Press, 1993), p. 191; Henry W. Tucker, Memoir of the Life and Episcopate of George Augustus Selwyn, DD (London: Wells Gardner, vol. I, 1879), p. 89f; G.A. Wood, ‘Church and State in New Zealand in the 1850s’, Journal of Religious History 8.3 (1975), pp. 255–70.Google Scholar
48. Because the Crown generally had little involvement in appointing bishops; see Sir Robert Phillimore, The Ecclesiastical Law of the Church of England (London: Sweet & Maxwell, 2nd edn, vol. II, 1895), p. 1786.Google Scholar
49. See, for example, A.K. Davidson, ‘Christianity and National Identity: The Role of the Churches in “the Construction of Nationhood” ’, in John Stenhouse and Brett Knowles (eds.), The Future of Christianity: Historical, Sociological, Political and Theological Perspectives from New Zealand (Adelaide: ATF Press, 2004), pp. 16–35; G.A. Wood, ‘Church and State in the Furthest Reach of Western Christianity’, in John Stenhouse and G.A. Wood (eds.), Christianity, Modernity and Culture: New Perspectives on New Zealand History (Adelaide: ATF Press, 2005), pp. 207–39.Google Scholar
50. See Bruce Kaye, ‘The Strange Birth of Anglican Synods in Australia and the 1850 Bishops’ Conference’, Journal of Religious History 27.2 (2003), pp. 177–97.Google Scholar
51. Such as consensual compact binding on the conscience of the individual members. Its provisions are without contractual force and are not justiciable in a civil Court, except to the extent that they may be involved in a matter concerning Church property governed by statute; Dodwell v. Bishop of Wellington (1886) N.Z.L.R. 5 S.C. 263 and Scandrett v. Dowling (1992) 27 N.S.W.L.R. 483, 512, 554, 564 (CA NSW); cf. McPherson, ‘The Church as consensual compact, trust and corporation’, pp. 159, 171.Google Scholar
52. For example, in New Zealand, Title A canon II.3; Gregory v. Bishop of Waiapu (1975) 705, 712 per Beattie J. Mr Justice Beattie had been Chancellor of the Diocese of Auckland 1967–69, from which position he resigned upon appointment to the Supreme Court of New Zealand.Google Scholar
53. Middleton v. Crofts (1736) 2 Atk. 650 (KB) (binding only if declaratory of ancient usage and law); approved in Lord Bishop of Exeter v. Marshall (1868) L.R. 3 H.L. 17. In New Zealand, ordained ministers give a declaration of canonical obedience to their bishop at ordination (Title D canon I.C1.2.1), and on appointment to office any ordained minister and office bearer to be licensed make a declaration of Adherence and Submission (Const. C.15) and a Declaration (Title A canon II.3; Title D canon I.C1.2.2). Non-licensed office bearers make a declaration of Adherence and Submission (Const. C.15) or a declaration of Acknowledgement of Authority of General Synod (Title B canon XXI; Title D canon I.C1.2.2). ‘All persons who are subject to episcopal jurisdiction in this Church shall be liable to discipline for any of the following acts or omissions…’; Title D canon I.C2.3; Gregory v. Bishop of Waiapu (1975) 1 N.Z.L.R. 705.Google Scholar
54. McPherson, ‘The Church as consensual compact, trust and corporation’, pp. 159–74.Google Scholar
55. Town of Pawlet v. Clark, 13 U.S. (9 Cranch) 292 (1815).Google Scholar
56. Ex parte The Reverend George King (1861) 2 Legge 1301 (NSW); cf. R. v. Inhabitants of Brampton (1808) 10 East. 282 per Lord Ellenborough, C.J. (ecclesiastical law carried by settlers). Indeed, each diocese has its own canon law; Standing Committee of the General Synod of the Church of England in Australia, The Anglican Church of Australia, Canon Law in Australia (Sydney: Standing Committee of the General Synod of the Church of England in Australia, c. 1981), p. 5. However, this has only been since the independence of the Australian Church, as in 1850 it was affirmed by an Australasian conference of metropolitan and bishops that the 1603 canons were applicable; Robbie A. Giles, Constitutional History of the Australian Church (London: Skeffington and Son, 1929), Appendix K, p. 238.Google Scholar
57. In re Lord Bishop of Natal (1864) 3 Moo. P.C.C. N.S. 115, 148, 152 (PC); approved in Baldwin v. Pascoe (1889) 7 N.Z.L.R. 759, 769–770.Google Scholar
58. Noel Cox, ‘Ecclesiastical Jurisdiction in the Church of the Province of Aotearoa, New Zealand and Polynesia’, Deakin Law Review 6.2 (2001), pp. 266–84; Conrad Earl Russell, ‘Whose Supremacy? King, Parliament and the Church 1530–1640’, Ecclesiastical Law Journal 4.21 (1997), pp. 700–708.Google Scholar
59. See the 1850 letter from a group of New Zealand laity led by the Governor, Sir George Grey, to Bishop Selwyn; Colonial Church Chronicle V (1852), p. 161. For Selwyn’s reply see Colonial Church Chronicle VI (1853), p. 168f.Google Scholar
60. Const. A2–A4.Google Scholar
61. The authority for New Zealand canons derives from the Constitution, B.5; Church of England Empowering Act 1928 s. 3.Google Scholar
62. Norman Doe, Canon Law in the Anglican Communion (Oxford: Clarendon Press, 1998), p. 14; Cox, ‘Ecclesiastical Jurisdiction in the Church of the Province of Aotearoa, New Zealand and Polynesia’, pp. 266–84.Google Scholar
63. Church of England Empowering Act 1928 (NZ) (as amended), Preamble.Google Scholar
64. Church of England Empowering Act 1928 (NZ) (as amended).Google Scholar
65. Anglican Church Trusts Act 1981 (NZ). Selwyn held all the land in trust up until 1858 when the Bishop of New Zealand Trust Act (NZ) was passed. From 1858 Church property had been vested in trustees; William Sachs, The Transformation of Anglicanism (Cambridge: Cambridge University Press, 1993), p. 191; Tucker, Memoir of the Life and Episcopate of George Augustus Selwyn, DD , p. 89ff; G.A. Wood, ‘Church and State in New Zealand in the 1850s’, Journal of Religious History 8.3 (1975), pp. 255–70.Google Scholar
66. Church of England (Missionary Dioceses) Act 1955 (NZ).Google Scholar
67. New Zealand Anglican Church Pension Fund Act 1972 (NZ).Google Scholar
68. For historical material, see William P. Morrell, The Anglican Church in New Zealand (Dunedin: McIndoe, 1973).Google Scholar
69. Gregory v. Bishop of Waiapu (1975) 1 N.Z.L.R. 705.Google Scholar
70. Gregory v. Bishop of Waiapu (1975) 1 N.Z.L.R. 705, 708 per Beattie J. cf. Barker v. O’Gorman (1971) 1 Ch. 215; (1970) 3 All E.R. 314.Google Scholar
71. Gray v. M. (1998) 2 N.Z.L.R. 161 (CA), where a letter by the respondent to an official of the Methodist Church complaining about the plaintiff’s behaviour as a minister of the Church was not protected by absolute privilege either under the Defamation Act 1992 (NZ) or at common law.Google Scholar
72. Const. A.6.Google Scholar
73. Const. A.1; Church of England Empowering Act 1928 (NZ). In accordance with the principle of the supremacy of Crown-in-Parliament; Article 37 of the Thirty-Nine Articles (enacted in 1562, and confirmed in 1571 by the Subscription [Thirty-Nine Articles] Act 1571 [13 Eliz. I c. 12] [England]).Google Scholar
74. Const. A.1.Google Scholar
75. Const. A.2.Google Scholar
76. Edward Norman, ‘Authority in the Anglican Communion’, (Ecclesiastical Law Society Lecture given during the Lambeth Conference 1998, transcribed by the Society of Archbishop Justus: 1998).Google Scholar
77. Section 3 was repealed and substituted, as from September 28, 1966, pursuant to s. 3 Church of England Empowering Amendment Act 1966 (NZ).Google Scholar
78. To allow for appeals to the judicial tribunals of the Church, see C.W. Haskell, Scripture and the ordination of women (Wellington: privately published, 1979); Rosemary Neave (ed.), The Journey and the Vision (Auckland: The Women's Resource Centre, 1990), pp. 3, 7–8.Google Scholar
79. s. 4.Google Scholar
80. Hubert Box, The Principles of Canon Law (London: Oxford University Press, 1949), p. 11.Google Scholar
81. Norman Doe, ‘Ecclesiastical Quasi-Legislation’, in Norman Doe, Mark Hill and Fr Robert Ombres (eds.), English Canon Law (Cardiff: University of Wales Press, 1998), p. 95.Google Scholar
82. The former without qualification, the latter depending upon internal constitutional rules of legislation-making, because of the doctrine of parliamentary sovereignty. Generally, see Geoffrey Marshall, Parliamentary Sovereignty and the Commonwealth (Oxford: Oxford University Press, 1957).Google Scholar
83. Doe, ‘Ecclesiastical Quasi-Legislation’, p. 95.Google Scholar
84. Though a contrary view has been expressed; J. Burrows, ‘Judicial Review and the Church of England’, (University of Wales Cardiff, LL.M. dissertation, 1997).Google Scholar
85. Scandrett v. Dowling (1992) 27 N.S.W.L.R. 483, 489 per Mahoney J.A.Google Scholar
86. Cox, ‘Ecclesiastical Jurisdiction in the Church of the Province of Aotearoa, New Zealand and Polynesia’, pp. 266–84.Google Scholar
87. Noel Cox, Church and State in the Post-Colonial Era: The Anglican Church and the Constitution in New Zealand (Auckland: Polygraphia, 2008).Google Scholar
88. s. 13.Google Scholar
89. s. 15.Google Scholar
90. s. 3: This Bill of Rights applies only to acts done — (a) By the legislative, executive, or judicial branches of the government of New Zealand; or(b) By any person or body in the performance of any public function, power, or duty conferred or imposed on that person by or pursuant to law.Google Scholar
91. The secular courts do not endeavour to interfere in matters of difference within a religious group, nor can they decide theological or liturgical questions; Cecil v. Rasmussen (unreported, High Court, Auckland, A1269/83, December 9, 1983, Baker J.); Misa v. Congregational Christian Church of Samoa (Wainuiomata) Trust Board (1984) 2 N.Z.L.R. 461 (CA); Presbyterian Church Property Trustees v. Fuimaono (unreported, High Court, Auckland, A1595/85, October 16, 1986, Thorp J.). This is not, however, an absolute exclusion of jurisdiction.Google Scholar
92. Dodwell v. Bishop of Wellington (1886) N.Z.L.R. 5 S.C. 263; Scandrett v. Dowling (1992) 27 N.S.W.L.R. 483, 512, 554, 564 (N.S.W. CA).Google Scholar
93. In Scandrett v. Dowling (1992) 27 N.S.W.L.R. 483, 513, the Court of Appeal of New South Wales treated Church members as associated only on the basis of a shared faith without legal sanction for its enforcement; McPherson, ‘The Church as consensual compact, trust and corporation’, p. 159, 171.Google Scholar
94. In 2008, including the Anglican Church Trusts Act 1981 (NZ), Anglican Church Trusts Amendment Act 1989 (NZ), Anglican Trust for Women and Children Act 1962 (NZ), Anglican Trust for Women and Children Amendment Acts 1968 (NZ) and 1975, Anglican Trustees Investment (Auckland) Act 1972 (NZ), Cathedral-Site Parnell Leasing Act 1886 (NZ), Christ’s College Canterbury Act 1885 (NZ), Christ’s College (Canterbury) Act 1928 (NZ), Christ’s College, Canterbury Act 1999 (NZ), Christ’s College (Canterbury) Amendment Act 1929 (NZ) and 1945, Church of England Empowering Act 1928 (NZ), 1934 and 1966, Church of England (Missionary Dioceses) Act 1955 (NZ), Church of England Tribunal (Validation of Election) Act 1934 (NZ), Church Property Trust (Canterbury) Act 1879 (NZ), Church Property Trust (Canterbury) Act 1887 (NZ), Church Property Trust (Canterbury) Act 1879 Amendment Act 1889 (NZ), 1906, 1915, 1927, 1934, 1951, 1962, 1964 and 1990, Church Property Trustees (Canterbury) Indemnity Act 1890 (NZ), Church Reserves (Canterbury) Act 1904 (NZ), College House Act 1985 (NZ), Dunedin Anglican Social Services (Child Welfare) Act 1978 (NZ), Melanesian Trusts Board 1974 (NZ), New Zealand Anglican Church Pensions Act 1972 (NZ), New Zealand Mission Trust (Port Waikato Maraetai) Empowering Act 1986 (NZ), Saint Mary’s Guild Trust Act 1956 (NZ), Nelson Diocesan Trust Board Empowering Act 1937 (NZ), St. John’s Anglican Church (Parochial District of Johnsonville) Burial Ground Act 1964 (NZ), St. John’s College Trusts Act 1972 (NZ), St. Mary’s Church (Karori) Burial Ground Act 1963 (NZ), Social Service Council of the Diocese of Christchurch Act 1952 (NZ), Waikato Anglican Boys College Trust Act 1987 (NZ), Warkworth Anglican Burial Ground Act 1968 (NZ), Wellington Bishopric Endowment Trust (Church of England) Act 1929 (NZ) and 1934, Wellington City Mission (Church of England) Act 1929 (NZ) and 1965, and the Wellington Diocesan Board of Trustees (Church of England) Act Repeal Act 1988 (NZ).Google Scholar
95. See, for example, those for the Roman Catholic Church (Roman Catholic Bishops Empowering Act 1997 [NZ]), Methodist Church (Methodist Church Property Trust Act 1887 [NZ]), Baptist Church (Auckland Baptist Tabernacle Act 1948 [NZ]).Google Scholar
96. Anglican Church Trusts Act 1981 (NZ).Google Scholar
97. Anglican Church Trusts Act 1981 (NZ) preamble.Google Scholar
98. The following Regulations were made pursuant to this Act: Anglican Church Trust Boards Order 1982 (S.R. 1982/274); Anglican Church Trust Boards Order 1985 (S.R. 1985/110); Anglican Church Trust Boards Order 1990 (S.R. 1990/299); Anglican Church Trust Boards Order 1992 (S.R. 1992/219); Anglican Church Trust Boards Order 1994 (S.R. 1994/218); Anglican Church Trust Boards Order 1996 (S.R. 1996/310); Anglican Church Trust Boards Order 1998 (S.R. 1998/282).Google Scholar
99. This legislation takes the form of private, rather than public, Acts. The difference lies in the method of passage, rather than in the effect.Google Scholar
100. Church of England Tribunal (Validation of Election) Act 1934 (NZ) preamble.Google Scholar
101. Church of England Tribunal (Validation of Election) Act 1934 (NZ) preamble.Google Scholar
102. Church of England Tribunal (Validation of Election) Act 1934 (NZ) preamble.Google Scholar
103. The Roman Catholic Church is also legalistic, but in a different sense, relying upon its own comprehensive internal legal and judicial structures.Google Scholar
104. Human Rights Act 1993 (NZ), s. 21(c), apart from the exceptions in s. 28.Google Scholar
105. Human Rights Act 1993 (NZ), s. 22(1)(a); Human Rights Commission v. Eric Sides Motor Co. Ltd (1981) 2 N.Z.A.R. 443.Google Scholar
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107. It includes a belief in a supernatural being, thing, or principal, and the acceptance of canons of conduct in order to give effect to that belief; Centrepoint Community Growth Trust v. Commissioner of Inland Revenue (1985) 1 N.Z.L.R. 673, applying Church of the New Faith v. Commissioner for Pay-roll Tax (Victoria) (1983) 154 C.L.R. 120; 49 A.L.R. 65 per Mason A.C.J. and Brennan J. (H.C.A.).Google Scholar
108. This is defined as including a person who is for the time being exercising functions analogous to those of a minister of religion; Evidence Act 1908 (NZ), s. 2, definition of ‘minister’.Google Scholar
109. Evidence Amendment Act (No. 2) 1980 (NZ), s. 31(1); Cook v. Carroll (1945) I.R. 515; Francome v. Mirror Group Newspapers Ltd (1984) 1 W.L.R. 892; (1984) 2 All E.R. 408 (CA). For confessions generally, see Rupert Bursell, ‘The Seal of the Confessional’, Ecclesiastical Law Journal 2 (1990), p. 84.Google Scholar
110. Evidence Amendment Act (No. 2) 1980 (NZ), s. 31 (2); R. v. Gruenke (1991) 3 S.C.R. 263 (where the S.C.C. rejected a claim to privilege and confidentiality involving a confession of murder made to a pastor and counsellor). The Church required Ministers to ‘keep information confidential whether imparted in confession or informally in conversation and not improperly disclose it’; Title D canon I.A.12.7; Title D canon I.A.13.1.4 (for ordained or lay ministers).Google Scholar
111. s. 8; These bodies are the Baptists, Anglican Church, Congregational Independents, Greek Orthodox, all Hebrew congregations, Lutheran Churches, Methodists, Presbyterian Church, Roman Catholics, Salvation Army. Other organizations permitted to nominate celebrants may apply to the Registrar-General to be included in the list of approved bodies. To be included the objects of the organization must be primarily to uphold or promote religious beliefs or philosophical or humanitarian convictions; s. 9.Google Scholar
112. Crimes Act 1961, s. 123. However, the consent of the Attorney-General is required for any prosecution and doubt has been expressed whether there is any particular room for application of this section. See, for the English position, Graham G. Routledge, ‘Blasphemy: the Report of the Archbishop of Canterbury’s Working Party on Offences Against Religion and Public Worship’, Ecclesiastical Law Journal 1.4 (1989), p. 27.Google Scholar
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114. See for example Ex parte Choudhury (1991) 1 Q.B. 429, [1991] 1 All E.R. 306; New South Wales Law Reform Commission, Blasphemy (Sydney: New South Wales Law Reform Commission, 1994), Report 74.Google Scholar
115. R. v. Glover (1922) G.L.R. 185, 187 per Hosking J.: ‘The object of the law of blasphemy is to prevent disorder in the community, and, there being such large numbers of the community who have reverence and respect for certain religious and sacred subjects, it is desirable that provocation of and any outrage of those feelings should be prevented.’ His Honour further observed that, ‘the law does not take God under its protection in these matters. That is not the object of the law of blasphemy’.Google Scholar
116. R. v. Glover (1922) G.L.R. 185 (where the offence involved publishing a poem by Siegfried Sassoon in which the slang word ‘bloody’ was used in connection with Christ and redemption. The jury acquitted, but as a rider suggested that such words should be discouraged).Google Scholar
117. Sir Ivor Richardson, Religion and the Law (Wellington: Sweet & Maxwell, 1962), p. 8; Peter Lineham, ‘Government Support for the Churches in the Modern Era’, in Rex Ahdar and John Stenhouse (eds.), God and Government (Dunedin: University of Otago Press, 2000), pp. 41–58.Google Scholar
118. All faiths are equal before the law: Centrepoint Community Growth Trust v. Commissioner of Inland Revenue (1985) 1 N.Z.L.R. 673, 692; Church of the New Faith v. Commissioner for Pay-roll Tax (Victoria) (1983) 154 C.L.R. 120, 131; 49 A.L.R. 65, Nelan v. Downes (1917) 23 C.L.R. 546, and Thornton v. Howe (1862) 31 Beav. 14.Google Scholar
119. Based on the City of Christchurch. See the Church Property Trust (Canterbury) Act 1879 (NZ) and 1887 (NZ), Church Property Trust (Canterbury) Act 1879 Amendment Act 1889 (NZ), 1906, 1915 and 1927, Church Property Trust (Canterbury) Amendment Act 1934 (NZ), 1951, 1962, 1964 and 1990, Church Property Trustees (Canterbury) Indemnity Act 1890 (NZ), Church Reserves (Canterbury) Act 1904 (NZ).Google Scholar
120. In the modern world, governments have generally sought either to be entirely separate from Churches or to manipulate them to their own purposes; James Coriden, An Introduction to Canon Law (New York: Paulist Press, 1991), p. 24.Google Scholar
121. G.A. Wood, ‘Church and State in New Zealand in the 1850s’, Journal of Religious History 8.3 (1975), pp. 255–70.Google Scholar
122. The Anglican Church in Aotearoa, New Zealand and Polynesia in the canons of the Church since 1992: ‘This Church, which in the Fundamental Provisions of the Constitution/te Pouhere, is designated as a “Branch of the United Church of England and Ireland”, shall be referred to and designated in English as The Anglican Church in Aotearoa, New Zealand and Polynesia, and shall be referred to and designated in te reo Maori, as Te Hahi Mihinare ki Aotearoa ki Niu Tireni, ki nga Moutere o Te Moana Nui a Kiwa’ (Title G canon I.1.5).Google Scholar
123. Church of England Enabling Act 1928 (NZ).Google Scholar
124. Norman, ‘Authority in the Anglican Communion’.Google Scholar
125. Const. Preamble.Google Scholar
126. The suggestion that they exist solely as voluntary associations, and that although they may be recognized in statute, they are otherwise treated as voluntary associations, is not sufficient to explain the nature of the relationship of Church and State; Gregory v. Bishop of Waiapu (1975) 1 N.Z.L.R. 705, and see Lord Bishop of Natal v. Green (1868) 18 L.T. 112; (1868) N.L.R. 138 cf. McPherson, ‘The Church as consensual compact, trust and corporation’, pp. 159–74.Google Scholar