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The Right Reverend Andrew W Curnow AM

Bishop of Bendigo

24 July 2017

The Most Revd Dr Philip Freier


Primate of Anglican Church of Australia
Archbishop of Melbourne
209 Flinders Lane
MELBOURNE VIC 3000

Dear Archbishop

We refer to your letter of 2 July to all the Bishops, and to the participation of three of our
colleagues in the consecration of a person in a church not in communion with this church.

We believe that this action raises fundamental questions of ecclesiology in respect of the
Anglican Church of Australia. Failure to have the questions which arise from the actions of
the Archbishop of Sydney, the Bishop of Tasmania, and the Bishop of North West Australia
properly determined will mean that our fellowship in the college of Bishops will be gravely
impaired.

We would therefore urge you to refer to the Appellate Tribunal pursuant to S.63(1) of the
Constitution questions which arise both from the actions of our colleagues and the letter
under reply.

With every blessing


Yours sincerely

The Rt Revd Andrew Curnow AM


Bishop of Bendigo

The Rt Revd Bill Ray


Bishop of North Queensland

The Rt Revd Kay Goldsworthy AO


Bishop of Gippsland

The Rt Revd John Stead


Bishop of Willochra

PO Box 2 4 Myers Street Bendigo VIC 3552 P 03 5443 4711 F 03 5441 2173 E bishop@bendigoanglican.org.au
Questions for consideration by the Appellate Tribunal

GIVEN THAT

A. Archbishop Glen Davies and Bishop Richard Condie participated in the consecration of a
bishop for Europe in the Anglican Church of North America (ACNA), a church that is not a
member of the Anglican Communion and is not in communion with the Anglican Church of
Australia.

B. Section 5 of The Constitution of the Anglican Church of Australia (the Constitution)


provides that subject to the Fundamental Declarations and the provisions of Chapter II of the
Constitution (Ruling Principles) the Anglican Church of Australia has plenary authority to
make canons, ordinances and rules for the order and good government of the Church, and to
administer the affairs thereof and that such authority and power may be exercised by the
several synods and tribunals in accordance with the provisions of the Constitution.

THE FOLLOWING QUESTIONS arise under the Constitution and otherwise:

1. Does the consecration, or purported consecration, of a person as a bishop in a church, or


purported church, which is not a member of the Anglican Communion and, or alternatively, is
not in communion with the Anglican Church of Australia constitute a breach of any of the
provisions of
a. Chapter II of the Constitution;
b. the Consecration of Bishops Canon 1996; or
c. the Episcopal Standards Canon 2007

and, if so, of which provision or provisions and in what manner.

2. Does the consecration, or purported consecration of a person as a bishop in a church, or


purported church, which is not a member of the Anglican Communion and, or alternatively, is
not in communion with the Anglican Church of Australia constitute an act which is in breach
of the ecclesiastical convention of the Anglican Communion (as expressed in Lambeth
Conference 1878 or otherwise) and, if so, in what manner.

3. Does a Bishop of the Anglican Church of Australia have the power or, alternatively, the
capacity to consecrate a person as a bishop in a church, or purported church, which is not a
member of the Anglican Communion and, or alternatively, is not in communion with the
Anglican Church of Australia.
Anglican Church of Australia
Primate: The Most Reverend Dr Philip L Freier

16 August 2017

Ms Anne Hywood
Registrar Appellate Tribunal
General Synod Office
189 Kent Street
Sydney NSW 2000

Email: appellatetribunal@anglican.org.au

Dear Anne

Reference to the Appellate Tribunal ACNA Consecration

I have received a request from Bishop Andrew Curnow on behalf of some other members of
the House of Bishops to refer the attached question from Bishop Curnow to the Appellate
Tribunal.

The Bishops concerned are Bishop Curnow of Bendigo, Bishop Stead of Willochra, Bishop
Goldsworthy of Gippsland, Bishop Ray of North Queensland and Bishop Ewing of Bunbury.

I have decided to refer the question to the Appellate Tribunal under Section 63(1) of the
Constitution of the Anglican Church of Australia.

Grace and peace in Christ Jesus

The Most Reverend Dr Philip L Freier


Archbishop of Melbourne & Primate of the Anglican Church of Australia

Attachments:
1. Letter from Bishop Curnow et al dated 24 July 2017
2. Questions raised in regard to the participation of ACA bishops in the ACNA
Consecration.

Suite 4, Level 5, 189 Kent Street, Sydney NSW 2000


Tel: +61 2 8267 2700 Email: primate@anglican.org.au www.anglican.org.au

1539 Primates Reference 150817


Anglican Church of Australia
General Synod

CIRCULAR LETTER

To: Diocesan Bishops and Administrators


Diocesan Chancellors

Subject: Primates Reference to the Appellate Tribunal


Attendance by Australian Bishops at a consecration of a bishop of the
ACNA

Date: 28 August 2017

The Primate has made a Reference to the Appellate Tribunal in regard to questions raised
by four members of the House of Bishops relating to the attendance of Australian bishops at
the consecration of a bishop of the Anglican Church of North America (ACNA)

The Hon Keith Mason AC QC, President of the Appellate Tribunal, has issued the following
directions:

1. Each Bishop, Chancellor and Registrar of the Church is to be notified of the


Reference and supplied with the initiating documents

2. Bishops Curnow, Ray, Goldsworthy and J Stead, who requested the Primate to make
the Reference, are requested to identify with precision the question or questions said
to arise under the Constitution in the Reference that he or she requested of the
Primate, by letter to the Registrar on or before 2 October 2017.

3. If any of the parties notified or the Synod of their Diocese wish to seek to become a
party to these proceedings they should notify the Registrar to that effect on or before
25 September 2017.

The Reference of the Primate, the initiating documents and the Appellate Tribunal Rules are
enclosed.

Notifications in accordance with these directions should be forwarded to the Registrar of the
Appellate Tribunal at:

Email: appellatetribunal@anglican.org.au

Mail: Registrar, Appellate Tribunal


General Synod Office
Suite 4, Level 5
189 Kent Street, Sydney, NSW, 2000

ABN: 90 767 330 931 Suite 4, Level 5, 189 Kent Street, Sydney NSW 2000
Tel: +61 2 8267 2700 Fax: +61 2 8267 2727 www.anglican.org.au
1539 Cir Ltr Appellate Tribunal ACNA 280817
Yours sincerely

Anne Hywood
Registrar Appellate Tribunal

T: +61 (0)2 8267 2701


M: +61 (0)412 103 734
E: appellatetribunal@anglican.org.au

cc: Members of the Appellate Tribunal

Attachment 1 Primates Reference to the Appellate Tribunal dated 15 August 2017


Attachment 2 A Letter from Bishop Andrew Curnow et al dated 24 July 2017
Attachment 3 Questions raised by Bishop Curnow et al.
Attachment 4 - Appellate Tribunal Rules 1988

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ANGLICAN CHURCH OF AUSTRALIA

APPELLATE TRIBUNAL RULES 1988


Pursuant to s.59 of the Constitution of the Anglican Church of Australia and all other enabling powers,
the Appellate Tribunal makes the following rules:

1. Short Title
These Rules may be cited as the "Appellate Tribunal Rules 1988/11.

2. Application
(1) These Rules apply to references made to the Tribunal in pursuance of a petition, or of
a written request of 25 members of General Synod, or, subject to rule 19, to any other
reference made by the Primate under the Constitution.
(2) These Rules are expressed to apply to a reference in pursuance of a written request
but apply to a reference in pursuance of a petition as if references to the request
were read as references to the petition and references to the members who make the
request were read as references to the members who sign the petition.

3. Applicants
(1) Where a question is referred to the Tribunal at the request of 25 or more members of
General Synod, all of those members shall be the applicants in the proceeding.
(2) Subject to subrule (3), all the applicants in a proceeding (whether they all signed the
same document raising the question or some signed one such document and others
another such document or other such documents) shall be treated as a single party
to the proceeding.
(3) Where some of the applicants make application to the Tribunal for leave to be treated
as a separate party to the proceedings, then, while the application is pending and, if
leave is granted by the Tribunal, after leave is granted:
(a) those applicants shall be treated as a single party to the proceeding; and
(b) the other applicants shall also be treated as a single, but separate, party to
the proceeding.
(4) The Tribunal may, if it is satisfied that there are special reasons for doing so, give
leave for some of the applicants to be treated as a single party to the proceeding
separate from the party constituted by the other applicants.

4. Other Parties
(1) The Tribunal may direct that a synod, person, group of persons or association
believed by the Tribunal to have a special interest in a proceeding be notified of the
proceeding.
(2) A synod, person, group of persons or association notified under subrule (1) may,
within the time fixed by the Tribunal or such longer time as the Tribunal may allow,
notify the Registrar that they wish to intervene in the proceeding and thereupon they
shall become a party to the proceeding.
(3) Without limiting the application of subrule (1), the Tribunal may invite the Standing
Committee of General Synod to become a party to a proceeding that involves the
constitutional validity of a canon and, if it accepts the invitation, it shall notify the

D:\AAAGSO\MEETINGS\TRIAPPEL\RULES\Rules for AT operation.DOC


APPELLATE TRIBUNAL RULES 1988/11

Registrar that it accepts the invitation and thereupon it becomes a party to the
proceeding.
(4) The Tribunal may advertise a proceeding in such manner as it may determine and
specify in the advertisement a time and manner within which. and any conditions
subject to which, a synod, person, class of persons or association claiming to be
interested in the question before the Tribunal may notify the Tribunal of that interest
and apply for leave to appear or be represented at any hearing of the matter.
(5) An applicant under subrule (4) shall apply to become a party in the proceeding and
shall make that application within the time and in the manner specified in the
advertisement and shall state whether, if leave is given, the applicant wishes to make
a written submission or appear at any hearing, or both.
(6) The Tribunal may give leave to an applicant under subrule (4) to become a party in
the proceeding.

5. Addresses for service


(1) Within seven days after sending their request or requests to the Primate, the
applicants shall notify the Registrar, in writing, of the name and postal address of the
solicitor or agent who will, subject to these rules, act in the proceeding for the party
constituted by the applicants.
(2) The inclusion of the information required by subrule (1) in the request or requests
shall be sufficient compliance with that subrule.
(3) Where some of the applicants in a proceeding make application to the Tribunal for
leave to be treated as a separate party in the proceeding, they shall state in the
application the name and postal address of the solicitor or agent who will act in the
proceeding for the party until the application is determined by the Tribunal and, if
leave is granted, in the proceeding generally.
(4) Where a solicitor or agent is acting for some of the applicants in accordance with a
notice under subrule (3), the solicitor or agent to whom a notice under subrule (1)
relates shall be treated as acting for the remaining applicants.
(5) Where
(a) a synod, person, group of persons or association notifies the Registrar under
rule 4(2); or
(b) the Standing Committee of General Synod notifies the Registrar under
rule 4(3);
the notice to the Registrar shall state the name and postal address of the solicitor or
agent who will act for them, or for the Standing Committee, as the case may be, in
the proceeding.
(6) Where a synod, person. class of persons or association makes application under
rule 4(5), the application shall state the name and postal address of the solicitor or
agent who will act for the applicant in connection with the application and, if leave is
granted to become a party in the proceeding, for that party in the proceeding.
(7) The person nominated to act in a proceeding for a synod, person, group or class of
persons or association may be that person, one of that group or class of persons or a
member of that association.
(8) A requesting body that is deemed to be a party to a proceeding in accordance with
rule 19 shall conform with the provisions of subrule (1), as though it were an

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APPELLATE TRIBUNAL RULES 1988/11

applicant, and shall do so within seven days after the resolution or other initiating step
has been forwarded to or otherwise brought to the notice of the Primate.

6. Service of notices
(1) Service of any notice or other document, whether by the Registrar or any other
person interested in a proceeding, on the solicitor or agent for a party in the
proceeding or for applicants for leave to be treated as, or to become, a party in a
proceeding, shall be deemed to be service on each of the persons who constitute, or
on the body that constitutes, that party.
(2) Subject to these Rules, and unless the Tribunal otherwise orders, service of all
documents may be made by post.
(3) Any papers to be served on the Tribunal or the Registrar may be sent to or left with
the Registrar at the Registry of the Tribunal, the address of which is the address of
General Synod.

7. Notification to Signatories
As soon as practicable after the expiration of 7 days after the receipt by the Tribunal of a
question referred to the Tribunal by the Primate pursuant to a request by 25 or more
members of General Synod, the Registrar shall notify the signatories accordingly.

8. Preliminary Conference
(1) As soon as practicable after the expiration of the time specified in an advertisement
under rule 4(4) or, if the Tribunal decides not to advertise under that subrule, after the
time within which notification may be made under rule 4(2) or (3), the Tribunal shall
convene a preliminary conference in the proceeding by serving notice of the time,
date and place for holding the conference on
(a) the parties in the proceeding; and
(b) applicants who have applied for leave to be treated as,
or become, parties in the proceeding.
(2) The business of the preliminary conference is
(a) to determine any applications that have been made to be treated as, or to
become, parties in the proceeding;
(b) to fix the times within which parties in the proceeding may make written
submissions and furnish written evidence in the proceeding;
(c) to fix the times within which parties in the proceeding may make written
submissions in reply to the submissions of other parties;
(d) to regulate the service of copies of written submissions, of written evidence
and written replies;
(e) to determine any other applications in the proceeding that may be before the
Tribunal, and
(f) to give any directions, not inconsistent with these rules, that the Tribunal
deems fit to give for the convenient disposal of the proceeding.

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APPELLATE TRIBUNAL RULES 1988/11

9 Written Submissions
(1) Unless the Tribunal otherwise directs, a party in a proceeding shall file in the Registry
of the Tribunal, within the time fixed at the preliminary conference, the submission
that the party wishes to make to the Tribunal in the proceeding.
(2) The submission shall contain the full argument that the party wishes the Tribunal to
take into account in forming its opinion on the question referred to it.
(3) The submission shall state whether the party wishes to be heard at any hearing of the
matter by the Tribunal.
(4) The submission must be accompanied by the originals or photocopies of all
documents, or parts of documents, that are referred to in the submission and upon
which the party relies, but it shall not be necessary so to deal with citations of
Scripture or well-known service books or recognised law reports or dictionaries or the
like.
(5) If the party seeks to rely upon the evidence of any witness, a full statement of the
evidence of the witness shall accompany the submission.
(6) Ten copies of the submission and accompanying documents (including witness
statements) shall be filed.
(7) Written evidence will not be received by the Tribunal unless verified by the statutory
declaration of the witness.

10 Supplementary Submission
(1) A party who has filed a submission under rule 9 may seek leave of the Tribunal to file
a supplementary submission.
(2) Leave shall not be given unless the Tribunal is satisfied that there are special
reasons for doing so, and may be given on such conditions as the Tribunal
determines.
(3) Unless the Tribunal otherwise determines, a supplementary submission shall
conform in all respects with the requirements of a submission filed under rule 9.

11 Reply
(1) Unless the Tribunal otherwise directs, a party to a proceeding may, within the time
fixed at the preliminary conference, file a written reply to the submissions made by
the other parties and to any opinion expressed by the House of Bishops or a Board of
Assessors under section 58 of the Constitution.
(2) Unless otherwise ordered, any reply shall conform in all respects with the
requirements of a submission filed under rule 9.
(3) The Tribunal may reject a reply, though filed, if in its opinion it contains a substantial
amount of new material that should not have been included in the reply.

12 Pre-hearing Conferences
(1) As soon as practicable after the expiration of the time fixed at the preliminary
conference for the filing of replies, the Tribunal may convene a conference of the
parties by serving notice of the time, date and place for holding the conference on
each party.
(2) The business of the conference is
(a) to determine whether the Tribunal will hear oral submissions by the parties or
any of them;
(b) if the Tribunal is to hear such submissions:

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APPELLATE TRIBUNAL RULES 1988/11

(i) to fix (if practicable) the date, time and place of the hearing;
(ii) to determine which of the parties may make oral submissions at the
hearing; and
(iii) to determine procedures for the hearing including, but without limiting
the generality of the foregoing, the time to be allowed to each party to
make its oral submission; and
(c) to give any other directions, not inconsistent with these rules, that the
Tribunal deems fit to give for the convenient disposal of the proceeding.

13 Hearing
(1) Any hearing of a proceeding shall take place at the time and place fixed at the pre-
hearing conference or otherwise determined by the Tribunal.
(2) A party to a proceeding may make oral submissions to the Tribunal at the hearing
only if given leave to do so at the pre-hearing conference or otherwise by the Tribunal
(3) A party to a proceeding making oral submissions at the hearing shall comply with any
directions given by the Tribunal at the pre-hearing conference or during the hearing.
(4) The Tribunal may, if there had not been a pre-hearing conference, give notice, prior
to the hearing, of the kind of directions it is likely to give at the hearing.
(5) The Tribunal shall not give leave to make oral submissions at the hearing to a party
who has failed to comply with these rules or with directions given, or determinations
made, by the Tribunal under these rules unless it finds special reasons for doing so.

14 Leave Required To Take Part


Subject to these rules, no body or person shall be permitted to take part in a proceeding
without leave of the Tribunal.

15 Other Directions
The Tribunal may give all necessary directions, not inconsistent with these rules, for the
convenient disposal of a matter before it.

16 Exercise Of Tribunals Powers


The interlocutory powers of the Tribunal under these rules may be exercised by the Tribunal
or by any member of the Tribunal.

17 Saving Provision Section 63


Nothing in these Rules shall require the Tribunal to give its opinion on a question referred to it
under s.63 of the Constitution if in the judgement of the Tribunal there would be insufficient
practical utility in doing so.

18 Costs
At the hearing of a proceeding, the Tribunal shall consider whether it should make an order,
or give a direction, under the Tribunals Procedure Canon 1962 with respect to the costs or
and incidental to the proceeding.

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APPELLATE TRIBUNAL RULES 1988/11

19 Application Of Rules To Other References


(1) Unless the Tribunal in a particular case otherwise determines, and subject to
subrule (2), these rules apply to references made by the Primate otherwise than in
pursuance of a petition or of a written request of 25 members of General Synod.
(2) The extent to which and the manner in which the rules shall apply to such other
references shall be determined as occasion requires by the Tribunal, with such
additions or omissions as may be expedient.
(3) The powers of the Tribunal under this rule may be exercised by any member of the
Tribunal.
(4) Where a reference is made at the request by resolution of General Synod or at the
request by resolution of a provincial or diocesan synod, the requesting body shall,
unless a contrary direction shall have been given by the Tribunal under this rule, be
deemed to be a party to the proceeding.

20 Definitions
In these Rules, unless the contrary intention appears canon includes a rule, resolution or
statement of General Synod;
Registrar means the Registrar of the Appellate Tribunal appointed by the Standing
Committee of General Synod;
Tribunal means the Appellate Tribunal.

21 Commencement
These Rules shall come into force on the 1st day of August 1988.

I certify that these Rules were made by resolution of the Appellate Tribunal on the 8th day of July
1988.

The Hon Mr Justice Cox


President
12 July 1988