Intricate. That is the word I would use to sum up the world of Church and State Law that Hon Keith Mason, AC QC discussed at the Trinity College lecture. It was a helpful lecture about the history and role of Church Law and how the status of clergy within the Church and society is significant relating to the 2017 Royal Commission. Today I will be taking a look at some key points that stood out to me and in Part II we will be exploring the impact on clergy in the light of the Royal Commission.
In Anglican circles, the Church elects bishops, who appoint clergy and deacons, who in turn work with laity in the church community. Making someone a deacon or clergy member is called Incardination, whilst withdrawal of this status is Unmaking them, However, the process for removing clergy from their position following abusive actions on their part, is complicated and in the past has often been biased. Many of the clergy courts who decided on whether Unmaking would occur often held secret hearings and voted in favour of the clergy.
But What About Court Cases?
Australian law court proceedings involving clergy abuse cases have also been complicated. Vicarious Liability needs to be proven. This determines whether the Church can be held liable for the actions of their clergy member, and whether they were acting within the bounds of their privileged status. Part of this clergy status, as Mr Mason pointed out, is that it comes with trust, control and intimacy that can be tragically misused in abusive situations.
I have heard it recommended by some within ministry circles that if clergy were to be given the title of ‘employee’ that the Church as a whole could be held legally responsible for the actions of their workers. However, Mr Mason’s sense was that even if clergy were considered employees, this may not change the legal landscape of the Church enough to ease the complication of establishing Vicarious Liability, or ensure that the Church could be held legally responsible for the actions of their workers.
Idealisation of Clergy
One point he raised was that clergy can commonly be seen as different to laity. Generally speaking there are ways in which being a clergy member does elevate you within society which can support the idealisation of their status. It is a unique position with it’s own conditions. For example, often the status of ‘Clergy’ is a lifelong title which does not change after retirement, even though they are no longer in active ministry. Also, legally speaking, there are protections for clergy in particular. In New South Wales for example, clergy are exempt from jury duty, may decline to perform a marriage if it contradicts Church Law, and it is illegal to interrupt a religious ceremony that they are running.
Mr Mason believed that the presence of this idealised status can be seen in the secular use of the term Defrocking when describing the removal of a clergy member from their privileged position. He argued that the way this term is used implies that even those outside of the Church see clergy as bearing a separate status that, when removed, leaves the clergy worker at the level of the lay person.
Mr Mason noted that a significant and serious impact of this idealisation in abusive situations can be that those affected can not only lose their trust in the clergy member, but also in the Church itself and perhaps also in God.
This made me consider how valuable and significant the status of a clergy worker was in their ministry. Is the clergy status one to protect or dismantle in order to encourage healthier equality and accountability?
Royal Commission Humbling God’s People
Mr Mason believed that the Royal Commission was in line with biblical examples of God using those outside His people to direct them towards humility and repentance. In considering this, he didn’t think that it was a good idea to quickly change the Constitution of the Church due to the findings of the Royal Commission. His opinion was that it wasn’t a lack of change that was the issue, but rather it was a lack of consistent enforcement of previously established church laws within the Church.
The status of clergy is a significant element of their ministry. This lecture challenged me to consider how Australian law and the Church relate to each other, and how important it is that those who abuse their clergy status are held accountable. It prompted me to look more closely at how day-to-day ministry is affected by the findings of the Royal Commission and what change is needed to protect those who have been affected by abuse and its consequences.
For a full transcript of the lecture, email Trinity College.
For more information about the Royal Commission, visit this link for a helpful summary.
Lecturer, Keith Mason AC QC Hon LLD has been a solicitor, barrister, law reformer, solicitor-general and president of the New South Wales Court of Appeal, law teacher and mediator. He has been the Chancellor of the Anglican Diocese of Armidale and is currently President of the Appellate Tribunal of the Anglican Church of Australia.
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