The Lord's Supper in Human Hands

THE
LORDS SUPPER
IN
HUMAN HANDS
EPILOGUE
P ETER
E DITORS
G . B OLT, M ARK D. T HOMPSON , R OBERT T ONG
The Lords Supper in Human Hands Epilogue

2010 belongs to the individual authors of the essays, or the editors, as indicated. The
views expressed in the various essays, or by the editors, are not necessarily shared in
their entirety by all other authors.
Australian Church Record
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Anglican Church League can to contacted at: www.acl.asn.au
National Library of Australia Cataloguing-in-Publication entry
Title:
The Lords Supper in human hands [electronic resource]:

epilogue/editors, Peter G. Bolt; Mark D. Thompson; Robert Tong.
Edition:
1st ed.
ISBN:
978-0-9803769-7-5 (eBook)
Subjects:
Anglican Church of Australia. Appellate Tribunal.

Lords SupperAnglican Church of Australia.
Lords SupperAnglican Communion.
Lords SupperLay administrationAnglican Church of Australia.
Lords SupperLay celebrationAnglican Church of Australia.
Other Authors/Contributors:
Bolt, Peter, 1958
Thompson, Mark (Mark Donald)
Tong, Robert.
Dewey Number:
264.03036
Cover design and typesetting by Lankshear Design.

Printed in Australia by Ligare Pty Ltd. Phone: 02 9533 2555.
Contents
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
2. The Minority Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
3. Diaconal Administration of the Lords Supper and
The 2010 Opinion of the Appellate Tribunal . . . . . . . . . . . . . .17
4. The Constitution, the Appellate Tribunal
and other things . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
5. The theological necessity of lay administration . . . . . . . . . . . .44
6. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .52
No t e o n C o n t r i b u t o r s
Peter G. Bolt is the head of New Testament and Greek at Moore College, a
member of the Sydney Doctrine Commission, a member of General Synod,
and the editor of the Australian Church Record.
Glenn N. Davies is the Bishop of North Sydney, a member of Sydney
Synod Standing Committee and a member of the General Synod Doctrine
Commission.
Mark D Thompson heads the Department of Theology, Philosophy and
Ethics at Moore College, chairs the Sydney Doctrine Commission, and is
President of the Anglican Church League. He is a member of the Sydney
Synod and Standing Committee as well as the General Synod and its
Doctrine Commission.
Robert Tong AM has long experience in the governance structures of the
Anglican Church at diocesan, national and international levels. He has published and spoken on Anglican constitutional and legal issues.
1
Introduction
his booklet comes in the wake of an opinion delivered on the

10 August 2010 by the Anglican Church of Australias Appellate Tribunal.1
This opinion was the conclusion of a process begun when, under
section 63 of the Constitution, 25 persons all from outside Sydney
put six questions to the Appellate Tribunal exploring the basic question
whether certain canons of the Australian General Synod permitted lay
and diaconal administration of the Lords Supper.2
Our purpose in publishing this booklet is to help members of the
Sydney Synod place the advisory opinion of the Appellate Tribunal in
broad context as that opinion intersects with Sydney Synod Resolution
27/2008. Much of the content of the booklet addresses legal and
constitutional issues relevant to our own context. However, it is our
firm hope that our Anglican brothers and sisters in other Australian
dioceses and in other parts of the Anglican Communion will understand and support the under-girding theology for this development in
the life of the church for the benefit of the people of God.
In 2008 we published The Lords Supper in Human Hands: Who
Should Administer? with the purpose of reporting to Christians
interested in the issue, something of the discussion on Lay and
Diaconal Administration of the Lords Supper that has gone on in
INTRODUCTION
| 5
Sydney Diocese (and elsewhere) for over forty years. That volume was
an attempt to share some of the theological thinking and the history
of various decisions made by the Sydney Synod in favour of removing
the prohibition restricting the administration of the Lords Supper to
priests only. It highlighted the silence of Scripture, a silence which
opens up the possibility of freedom of action in this matter. Yet such
freedom should be exercised responsibly and ought to be shaped by
sound theological reflection. It is this conviction which explains why
in Sydney there has been extensive discussion of the issue, producing
at least six major reports concluding in favour of lay and diaconal
administration.
The Lords Supper in Human Hands responded to a number of the
charges made by opponents of this measure. One such charge is that
the Diocese of Sydney has taken an eccentric position which is out of
step with the rest of the Anglican world and with Anglican history.
In response the 2008 volume gathered the evidence from a wide
variety of sources which demonstrates that the Sydney discussion
was not isolated and certainly was not held secretly or in a corner.
For well over 100 years the issue of non-priestly administration of the
sacramentsespecially in mission contextshas been given voice
from various places around the globe (including England, India, Africa
and Australia).
It has also been suggested that the Diocese of Sydney was advocating
anarchy, with any lay person or deacon being permitted to administer
without any authorization whatsoever. However, as the 2008 volume
demonstrated, all the proposals from Sydney have been for duly and
properly selected, appointed and approved persons exercising this
responsibility. This adjustment to church order is constructive, not
destructive; it does not provoke a crisis, but attempts to solve one.
Some have sought to compare this proposal with the action of
others who have fractured the Anglican Communion by flagrant
disregard of the expressed mind of Scripture in the area of human
sexuality (confirmed once again in statements by representatives of
6 | T H E LO R D ' S S U P P E R I N H U M A N H A N D S E P I LO G U E
the entire Communion such as Resolution 1.10 of the 1998 Lambeth

Conference). The Lords Supper in Human Hands again demonstrated
that this suggestion is egregious. Scripture is silent on the issue of
who should administer the Lords Supper but it is not silent at all
about human sexuality. The two issues are not comparable. The
proposal of lay and diaconal administration springs from faithfulness
to Scripture. It is a development in church order in order further to
embody biblical and Reformation principles. It is, as one report deftly
puts it, a change to stay the same.
Within this basically theological and historical context, the essays
in The Lords Supper in Human Hands also included one essay of a
more legal nature, namely, the essay by Dr Glenn Davies, Bishop of
North Sydney: The Authorisation of a Deacon to Administer the
Holy Communion. The background to Bishop Davies essay lies in an
opinion handed down by an earlier Appellate Tribunal, when Lay and
Diaconal Administration was the subject a previous reference to that
body. In an opinion given on 24 December 1997, it stated
(1) It is consistent with the Constitution of the Anglican Church
of Australia to permit or authorise, or otherwise make
provision for
(a) deacons to preside at, administer or celebrate the Holy
Communion; or
(b) lay persons to preside at, administer or celebrate the Holy
Communion; and
(2) It is not consistent with the Constitution of the Anglican Church
of Australia for a diocesan synod, otherwise than under and
in accordance with a Canon of General Synod, to permit,
authorise or make provision as mentioned in paragraph (1).
That is, the legislative authorization for lay persons and deacons to
administer the Lords Supper, according to the Appellate Tribunal, is
consistent with the Constitution, but requires a Canon of General
Synod of the Anglican Church of Australia before a diocesan synod
INTRODUCTION
| 7
can authorise the practice.

In his essay in The Lords Supper in Human Hands, Bishop Davies
gave an answer to the narrow legal question of the last paragraph: is
there a canon? He argued that the Ordination Service for Deacons Canon
1985 is such a canon, providing the permission for deacons to administer
the Lords Supper.
On 20 October 2008, the Synod of the Diocese of Sydney passed
Resolution No 27/2008, stating their view that the Sydney Synod:
(a) accepted the report concerning legal barriers to lay and
diaconal administration of the Lords Supper which was
submitted to the 3rd session of the 47th Synod; and
(b) affirmed again its conviction that lay and diaconal
administration of the Lords Supper is consistent with the
teaching of Scripture; and
(c) affirmed that the Lords Supper in this diocese may be
3
administered by persons other than presbyters.
There has been a strong reaction to this resolution of the Sydney

Synod from some within the wider Anglican Church of Australia.
Claiming to have evidence that the view expressed in Resolution
27/2008 had been acted on in some Sydney congregations, the issue
was referred to the Appellate Tribunal, by way of six questions.
Even though the reference concerned a resolution of the Sydney
Synod, the Sydney Standing Committee did not make a submission.
Bishop Glenn Davies lodged a submission as an interested person but
not as a representative of the Diocese. This gave the Tribunal some
cause for thought:
[17]. Normally, the Tribunal declines to answer questions which are
posed for its decision where there is no proper argument presented
or where there is no proper contradictor. The reason for this is that
it is no service to the Church for the Tribunal to make a binding
ruling where it has only been presented with inadequate material.
The Appellate Tribunal published their opinion on this most recent

reference, on 10 August 2010. The majority opinion was that, contrary
to Bishop Davies argument, there was no canon permitting Lay &
Diaconal Administration. The Rt Rev Peter Brain, Bishop of Armidale
dissented from the majority opinion, arguing that permission can be
found in the Ordination Service for Deacons Canon 1985 (Question 3),
and that the Sydney Synod Resolution 27/2008 is consistent and in
accordance with the Constitution of The Anglican Church of Australia
and the canons made thereunder.
The Appellate Tribunal was asked to give its opinion on a
reference concerning a narrowly defined legal question. The majority
opinion declared, in effect, there was no canon of the General Synod
permitting administration of the Lords Supper by someone other
than a priest and the Sydney Resolution 27/2008 was not consistent
with the Constitution.
Bishop Brains minority report disagreed on both counts.
This present volume provides further reflection upon this Appellate
Tribunal opinion. The editors are responsible for the introduction
(chapter 1). Bishop Brains minority decision, in edited form is Chapter
2. A response by Bishop Davies to the Appellate Tribunals decision
forms Chapter 3. A note on the Appellate Tribunal and the constitution
is provided by Robert Tong in chapter 4. Since the discussion in the
Diocese of Sydney has always been within a biblical and theological
framework, in Chapter 5 Mark Thompson reflects upon the recent
events in that framework, to help re-set the issue into that proper
context which has always dominated the debate in Sydney. The editors
then provide some concluding reflections.
ENDNOTES
All members of the Appellate Tribunal considered the Reference: The Hon Mr Justice
Peter W Young, AO, President, Mr Max Horton OAM, Deputy President, The Hon Justice
David J Bleby, The Hon Keith Mason AC QC, The Most Rev Phillip Aspinall, Archbishop
of Brisbane, The Most Rev Roger Herft Archbishop of Perth and The Rt Rev Peter Brain,
Bishop of Armidale. For Appellate Tribunal opinions, see the http://www.anglican.org.au.
INTRODUCTION
| 9
The canons involved in this reference are, in chronological order, the Lay Assistants at
Holy Communion Canon 1973, the Ordination of Deacons Canon 1985, the Authorized Lay
Ministry Canon 1992 and the Canon Concerning Services 1992.
3 In the interest of sharing Sydneys thinking on the issue with others in the Communion,
the resolution also requested that the Diocesan Secretary to send a copy of The Lords Supper
in Human Hands to all bishops who attended the GAFCON.
2
2
The Minority Report
Pe t e r B o lt
he Right Reverend Peter Brain, Bishop of Armidale and a member

of the Appellate Tribunal dealing with this reference, dissented from
the majority opinion on two of the six questions put.1
Bishop Brains Agreement With the Majority and Reservations

Bishop Brain agreed with the rest of the tribunal that three of the four
canons (Lay Assistants at Holy Communion Canon 1973; Authorized Lay
Ministry Canon 1992; and Canon Concerning Services 1992) do not permit
Lay & Diaconal Administration of the Lords Supper. He also agreed that
there are no further Canons beyond the four being considered in the
reference, which provide support for such practice. [115].
In expressing these points of agreement, however, Bishop Brain
also added several further comments and reservations:
1) I particularly endorse the final sentence of paragraph [22]:
there is Scriptural authority for the view that proceedings of
such nature before a secular court are wrong for believers. Those
words send a signal that could keep us from both legalism (which
rarely enhances fellowship) and unseemly litigation. [116].
THE MINORITY REPORT
| 11
2) Paragraph [32] of the majority opinion noted that the 1985

canon authorizes an additional form of service for the making
of deacons, and opines that there is no express indication that
the function of the deacon is altered or that there will be two
classes of deacons, one ordained under the 1985 form with
extra powers and functions and the other under the traditional
form without those powers and functions. The paragraph then
ends, this is an unlikely intention of the General Synod.
Whilst agreeing to the last sentence, Brain adds that the
intention of General Synod can only be determined by the
actual words used. [117].
3) The Supporting Parties argued (paragraph [33]) that ever since the
Council of Nicea in ad 325, the official line taken by the church
is that deacons cannot celebrate the Holy Communion and it
would be strange if the General Synod changed this inferentially.
Bishop Brain responded by saying that Nicea ad 325 is a
narrow view of the Church. There are branches of the Church
that allow authorised diaconal and lay administration. [118].
4) Paragraph 34 added further that the rubrics in the Book of
Common Prayer Service plainly indicate priestly presidency of
the Eucharist. The Curate in the rubrics refers to the priest in
charge of the parish, but even more explicitly, the rubrics
consistently refer to the priest. Brain responds: I would not
wish the statement in paragraph [34] to be taken as
contradicting the rulings of the Tribunal 1(a) and 1(b) of 24
2
December 1997. [119].
5) Bishop Brain declared that paragraph [38], which suggests the
assumption of a nexus between preaching the Word and
administering the sacraments should be tested, is special
pleading. Our own Article 19 and the Priesting ordinal makes
this connection between preaching and administration of the
Holy Communion perfectly clear. [120].
6) Responding to paragraph [85] brings Bishop Brain to the nub of
my problem [121], namely,
(a) it may have been decreed in ad 325 that only priests and
bishops could celebrate Holy Communion but the New

Testament contains no such direction.
(b) the fact that the rule was not always strictly applied should
alert us to the danger of a legislative solution to what is surely
an issue on which legalism can hardly promote fellowship
across the Anglican Church of Australia.
Bishop Brains Minority Report

Bishop Brains differs from the opinion of the majority of the Tribunal by
giving affirmative answers to Questions 3 and 6 of the reference. To be
concrete: here he considered, firstly, that Diaconal Administration was
permitted by Ordination of Deacons Canon 1985 (Q.3) and, secondly, he
considered Resolution 27/2008 of the Synod of the Diocese of Sydney to
be consistent with the constitution of the Anglican Church of Australia
and the canons made thereunder (Q.6).
Bishop Brain qualified his yes to Question 3 [122] by saying that
(i) though I dont think this was the intention of the 1985 Canon
(ii) yet on the basis of the previous Tribunal reasons concerning
consecration of women, to be consistent an unintended intention
need not overrule a possible reading of the Canon.
In answering yes to Question 6 he provided five reasons [123124]:
(i) In our Constitution the Diocese is considered the central unit
of our church and therefore after careful theological
consideration and Synodical approval and with the concurrence
of the Bishop it should be able to order the life of that Diocese.
(ii) Reason (i) above should be consistent with the primary source
of authority in the Anglican Church of Australia, viz.
Scripture. Since the New Testament provides no direction for
the administration of the Lords Supper our church would be
unwise to do so save the direction that the person celebrating
should be (a) a Christian (b) well regarded (c) accepted as a
congregational leader (d) involved in the teaching and pastoral
ministry of the church.
THE MINORITY REPORT
| 13
(iii) The New Testament knows of no ministry in the church of

priests (save that of all the Christians, usually called the
priesthood of the believers following 1 Peter 2).
The terms bishop, elder and pastor appear to be
interchangeable in significant NT passages eg Acts 20:1731;
Titus 1: 59; 1 Peter 5:12. What is emphasised is the
character, the teaching ability and adherence to apostolic
doctrine of the person.
Since presiding at the Lords Supper is not the subject of any
NT Scripture we can safely assume that the above characteristics
and commitment to Christ and His people are suitable
requirements for those who might preside at Holy Communion.
(iv) this is entirely consistent with Tribunal previous ruling
24/12/1997 1(a) and (b) and in my opinion renders the need
3
for a Canon of General Synod unnecessary.
(v) There are practices across the Anglican Church of Australia
to do with the Lords Supper that if not commonplace, have
become accepted practice, with Episcopal consent, but
without General Synod approval, that would render a No
answer out of step with prevailing practice.
These include (a) the reservation of the sacrament (not just
for extended communion in nursing homes) for use in
parishes without priests (against the Article) (b) the practice
of giving newly ordained priests a chalice as well as a Bible at
ordination (against the rubric) (c) the praying of certain words
prior to consecration that would imply an offering by the
priest of bread and wine as works of our own hands to God
(against the order of our services).
This latter practice, (c), is so serious that it turns the
service of Holy Communion on its head from a sacrament of
Gods grace to one of our own works.
Bishop Brain explained that he raised these issues to ask the question:
do we want the Anglican Church of Australia to be a Church that
operates as a fellowship-grace model or one that functions on a
litigious antagonistic model? [125]. In addition, he noted that:
We do have already across the Anglican Church of Australia two

classes of priests brought about essentially to solve the problem of
Eucharistic ministry for small communities (or communities that
cannot afford a priest or in places where no priests are available).
Lay people who have not been fully trained (certainly not in the
traditional sense) are ordained for the purpose of presiding at
Communion. A No answer to this question, though technically
correct, would have the effect of (a) devaluing the training of
Deacons in Sydney Diocese and (b) giving a value to the priests
role in Holy Communion that is warranted neither by our Articles
nor Scripture. [126].
This is not to devalue the Godliness, commitment, character or
ministry of either lay people in general or those who have been
ordained as local priests but to imply that there is another way of
solving the problem, viz. diaconal or lay presidency properly
ordered (which is in line with the Tribunal ruling 24/12/1997 and
consistent with our fundamental authority Scripture). [127].
To conclude his opinion, Bishop Brain provided his own summary,

reiterating that his affirmative answer to Question 6 amounts to [128]:
* an affirmation that according to our Constitution, Scripture is
our primary and binding authority;
* an unwillingness to endorse the maintenance of fellowship in the
Anglican Church of Australia on the basis of legal appeal in
matters that do not infringe any Scriptural teaching;
* an appeal to Article XXXIV (34) which sets the authority of
Scripture above tradition of the church by endorsing a variety of
practices in the Anglican Church of Australia so long as they are
not against or repugnant to Gods Word.
ENDNOTES
This is an edited version of Bishop Brains opinion, which at some points summarizes
and at other points expands the original text in order to render it more readable as a standalone contribution. The original paragraph numbers are provided in square brackets [ ].
2 The opinion of the majority of the Appellate Tribunal, expressed in its opinion given on
1
THE MINORITY REPORT
| 15
24 December 1997, was that:

(1) It is consistent with the Constitution of the Anglican Church of Australia to permit
or authorise, or otherwise make provision for
(a) deacons to preside at, administer or celebrate the Holy Communion; or
(b) lay persons to preside at, administer or celebrate the Holy Communion; and
(2) It is not consistent with the Constitution of the Anglican Church of Australia for a
diocesan synod, otherwise than under and in accordance with a Canon of General
Synod, to permit, authorise or make provision as mentioned in paragraph (1).
3 See note 2 above.
3
Diaconal Administration
of the Lords Supper and
The 2010 Opinion
of the Appellate Tribunal
G l e n n N. Dav i e s
Introduction
1. On 10 August 2010 the Appellate Tribunal reported to the Primate
on their opinion concerning six questions brought to them by
over 25 members of the General Synod, in accordance with
the Constitution of the Anglican Church of Australia. While the
questions ranged over a number of aspects relating to diaconal and
lay administration of the Lords Supper, the answer to Question 3
is the concern of this article.
2. Question 3 asked whether the Ordination Service for Deacons Canon
1985 permitted or authorised deacons to administer the Lords
Supper. The majority opinion of the Appellate Tribunal (Bishop
Peter Brain dissenting) answered No.
D I A C O N A L A D M I N I S T R AT I O N O F T H E L O R D S S U P P E R
| 17
3. In 1997 the Appellate Tribunal expressed the opinion that

diaconal administration was consistent with the Constitution of
the Anglican Church of Australia, in particular the Fundamental
Declarations and Ruling Principles of the Church, that is to say,
that the practice is consistent with the teaching of Holy Scripture,
and the doctrine and principles of both the Book of Common Prayer
and the 39 Articles. However, the Tribunal considered that a
Canon of General Synod was necessary to authorise this practice.
The question before the Appellate Tribunal, therefore, was a legal
one: does the 1985 Ordination Service for Deacons Canon allow for
diaconal administration?
4. It ought first to be recognised that the voluntary labours of the
members of the Appellate Tribunal deserve the Churchs thanks
and appreciation. The matters that come before them are often
complex, and when the issues are contentious, it would be a rare
thing that their opinion would please all parties in the Church.
Nonetheless, it is the contention of this article that the Appellate
Tribunals Opinion on this matter is wanting.
The Legal Argument for Diaconal Administration

5. In a private submission to the Tribunal I argued that Question 3
should be answered in the affirmative, namely, that the words of
the service did allow for deacons to administer the Lords Supper.
My argument rested upon the revised words in the 1985 Service,
which itself was a self-styled radical revision, an alternative to the
conservative revision of the Ordinal that was published in An
Australian Prayer Book (AAPB) in 1978. The 1985 service departed
from the text of both AAPB and BCP with expanded functions for
the deacon, notably with respect to preaching and the administration of baptism and Holy Communion.
6. Unlike the Ordinal of BCP, the deacons responsibilities in the
1985 service were not delineated separately with respect to each

sacrament (baptise infants in the absence of the priest; help the
priest in the distribution of the Holy Communion), but were
coupled together in the expression to assist in the administration
of his holy sacraments, without any further qualification concerning
the presence or absence of the priest.
7. On three occasions the service makes reference to the responsibilities of the deacon with respect to the administration of the
Lords Supper.
From the bishops instruction:
You are to be faithful in prayer, and take your place with bishop,
priest and people in public worship and at the administration
of the sacraments.
In the bishops questions:
Will you take your part in reading the holy scriptures in the
church, in teaching the doctrine of Christ, and in administering
the sacraments?
In the bishops authorisation:
Receive this sign of your authority to proclaim Gods word and
to assist in the administration of his holy sacraments.
8. This effectively expanded the function of the deacon to allow the
deacon to preach Gods word (where in BCP the deacon required a
specific licence to preach); to baptise not only infants, but candidates
of any age, and regardless of whether the priest was absent or not;
and to assist in the administration of the Lords Supper in the
same way that the deacon assisted in baptism, namely to conduct
the service in its entirety, under delegated authority of the
presbyter. However, the administration of the sacraments could
only be conducted under the aegis of the priest, whom the deacon
was to assist. For further detail of the argument see my submission
| 19
at http://sydneyanglicans.net/ministry/seniorclergy/bishop_davies/
articles/submission_to_appellate_tribunal_by_bishop_davies.
The Majority Opinion of the Appellate Tribunal

9. The premise of the majority opinion is that the 1985 service could
not have changed the function of a deacon, because the Book of
Common Prayer prescribed that only the priest could administer the
Lords Supper and this represents the historical practice of the
Church (notwithstanding the fact that deacons did administer the
Lords Supper in the early church). They claim that there are no new
words in the 1985 Service expressly authorising a deacon to preside
at the Eucharist. Furthermore, the official line taken by the church
is that deacons cannot celebrate the Holy Communion and it would
be strange if the General Synod changed this inferentially (33).
10. This is a surprising opinion, as three years earlier, the Appellate
Tribunal declared that a change in the definition of canonical
fitness for those who are to be consecrated bishops, allowed for
women to become bishops. Yet there was no express authorisation for such a change in the process for electing a bishop,
notwithstanding the newly worded definition of canonical fitness
which only concerned the confirmation of an election. Yet this
new understanding most certainly reflected a dramatic and
unprecedented change of practice in the Church. Indeed, for
more than a decade no one opined that the definitional change in
canonical fitness in the Constitution would have allowed women
to become bishops. Furthermore, when the Diocese of Sydney
agreed to the change in definition, it expressly declared that the
change did not mean that women could be consecrated bishops.
11. Why then did the Appellate Tribunal not apply the same logic,
namely the lack of words expressly authorising diaconal administration, when it addressed the reference on women bishops, where
there existed a similar lack of express authorisation? The following

comments on diaconal administration reveal the Tribunals reliance
upon the context of the canon rather than the actual words of the
canon.
(a) This is an unlikely intention of General Synod (32);
(b) the official line taken by the church is that deacons cannot
celebrate the Holy Communion and it would be strange if
the General Synod changed this inferentially (33);
(c) the rubrics in the Book of Common Prayer Service plainly
indicate priestly presidency of the Eucharist(34);
(d) the deacon is to take his or her place in the service of
Holy Communion the traditional place of the deacon
(36).
Yet strangely, if one were to apply these comments and the

principles underlying them to the reference on women bishops one
could easily have come to different conclusions on that reference.
12. Consider the novelty of women bishops. At no time in the history
of the Anglican Church of Australia were women admitted to the
episcopacy. Scripture does not sanction women becoming bishops,
indeed there are strong arguments that the teaching of the
New Testament allows women to be made deacons but not to be
ordained presbyters/bishops.
13. On the other hand, there is no sanction in Scripture prohibiting
deacons administering the Lords Supper. Furthermore, despite
the Appellate Tribunals unsubstantiated claim that the Council of
Nicaea prohibited deacons from administering the Lords Supper,
a careful reading of Canon 18 reveals that deacons were only
prohibited from administering the Eucharist to prieststhere is
no prohibition of deacons administering the Lords Supper to lay
persons!
| 21
14. The Tribunals opinion claims to affect the future interpretation

of the rules of the church which is not just a matter of legalism,
but a matter of fairness and protection of the ordinary members
of the church (23). Yet the narrow interpretation of the new
definition of canonical fitness of bishops provided no protection
and was manifestly unfair to a large number of church members
who hold conscientious objections to women bishops.
15. What logic did the Appellate Tribunal use to deny deacons their
role of assisting the presbyter in administering the Lords Supper?
Here is an example. The bishop authorises the deacon with the
words: Receive this sign of your authority to proclaim Gods
word and to assist in the administration of his holy sacraments.
However, the Tribunal argued that assist in and assist by are
materially different.
[T]here is a real difference between assist by and assist in []
a child may assist his or her father in washing the car, but it is a
different matter to say the child assisted by washing the car. In
the present context the deacon is to assist in the administration.
(58)
Presumably this illustration, provided by one of the written

submissions but endorsed by the Appellate Tribunal, considers
that if a child were to assist in the washing of the car, the father
would also be in attendance and no doubt joining in the washing
(or taking the lead). However, if the child were to assist by
washing the car, only then could the father be absent and the car
be washed entirely by the child. This purports to be an illustration
of the deacons role as one who assists in rather then assists by
the administration of the sacraments, and to which the Tribunal
declared: We cannot see any answer to this submission. (60)
16. Yet if we change the illustration from washing a car to baptising
an infant, and change the child/father duo to a partnership of
deacon and presbyter, what would we find? We would find that

the deacon could not assist by washing, but only assist in the
washing of baptism. In other words, the deacon could not conduct
the sacrament of infant baptism unless the presbyter were at
least present or in some way involved in the baptism. This reduces
the argument to an absurdity, for it necessarily contradicts the
Ordinal of BCP, which specifically authorises deacons to baptise
infants in the absence of the priest!
17. If the Appellate Tribunals illustration were to have any merit, it
would have required the authorisation of the bishop to read: assist
by the administration of baptism and assist in the administration
of the Lords Supper. However, the new ordination service for
deacons did not differentiate the role of deacons in baptism from
their role in the Lords Supper. Instead the service combined both
baptism and the Lords Supper, where he or she assists in the
administration of the sacraments.
18. Furthermore, the 1997 Opinion of the Appellate Tribunal expressly
contemplated the possibility of the deacons assisting the priest,
under delegation, in the administration of the Lords Supper. Mr
Justice Handley states it clearly in the following words.
Section 3 preserves the threefold ministry which emerged in
the Church in Apostolic times or shortly afterwards. The
ministries so preserved are not defined by their functions
accepted in the English Reformation settlement in the 16th
century. On this issue I agree generally with the opinions of
1
2
Justice Young and the Bishop of Bathurst.
The role of the deacon, as defined by the Ordinal, is to assist
the priest. If the priest was present at a communion service he
(or she) would preside and the deacon would be relegated to
the role of an assistant to the presiding priest. The situation
would be otherwise if the priest was sick, on holidays, away
from the parish on duty, or conducting services elsewhere. In
such circumstances the deacon could assist the priest in fulfilling
| 23
his/her ministry to the parish by conducting communion

services that the priest could not conduct personally.
The duties of deacons referred to in the Ordinal include
baptising infants in the absence of the priest so that the other
sacrament of the Church can be celebrated by a delegate
during the absence of the priest. However, the role of an
assistant is not limited to situations in which the rector is
absent. An assistant priest could assist the rector by conducting
an entire communion service although the rector was present.
In these circumstances I see no reason to construe section 3 as
denying to the Church the power, if it saw fit, to expand the
role of the deacon as an assistant to the priest in charge of the
parish, to enable the deacon to preside at communion, certainly
3
in the absence of the priest, but even if the priest is present.
19. It is difficult to understand the logic of the 2010 Appellate

Tribunals opinion in the face of this evidence. Rather than allow
the words of the service to speak for themselves, they have
invoked the sixteenth century understanding of the limitations of
the diaconate to apply to the 1985 service, notwithstanding the
plain import of the words and the changes effected by authorising
the deacon to assist in the administration of the sacraments.
20. Yet as Lord Mersey, in an oft-cited passage from Thompson v
Goold & Co [1910] AC 409 at 420, says:
It is a strong thing to read into an Act of Parliament words
which are not there, and in the absence of clear necessity it is a
4
wrong thing to do.
Similarly Pearce & Geddes state:

Of course, courts can never literally read words into
legislation, any more than they can fill gaps disclosed in
5
legislation, as part of a process of interpretation.
21. In a number of dioceses in Australia, the custom of local priests

or non-stipendiary priests is a departure from the historic practice
of full time stipendiary priests. In the BCP Ordinal the priest is

charged by the bishop to give yourselves wholly to this office,
whereunto it hath pleased God to call you: so that, as much as
lieth in you, you will apply yourselves wholly to this one thing,
and draw all your cares and studies in this way. Yet the practice of
non-stipendiary priests, who lack the normal level of theological
training required of presbyters, and who are engaged in secular
employment is somehow acceptable in the Anglican Church of
Australia, without the benefit of any canon authorising such
practice, but diaconal administration of the Lords Supper is not.
22. A significant counter example to the Appellate Tribunals
methodology is the Solemnization of Holy Matrimony Canon 1981.
That canon is widely recognised across the Australian Church as
authorising deacons, if they are nominated by their bishop as an
authorised celebrant according to the law of the Commonwealth
of Australia, to solemnise marriages. Although not all bishops
agree to deacons solemnising marriage, the majority of deacons
in Australia are authorised celebrants. However, if one looks
closely at the canon there is no express authorisation of the
deacon to undertake this ministry, despite its being a departure
from the BCP, which only allows priests to solemnise matrimony.
Rather it is the words of the canon that indicate a deacon is so
authorised when it states that marriage can only be solemnised
by a minister registered on the nomination of this Church as an
authorised celebrant according to the law of the Commonwealth
of Australia. These words are capable of including deacons,
but is it an express authorisation of diaconal solemnization of
matrimony, which has been widely practised since 1981?
The Appellate Tribunal rejected the plain meaning of the words
of the 1985 service, because they not only contravened the BCP
Ordinal and the rubrics of the BCP Holy Communion but also
lacked express authorisation for deacons to administer the
| 25
Lords Supper. Yet if the same methodology were applied to the

Solemnization of Holy Matrimony Canon 1981, then it would be
illegal for deacons to solemnise a marriage, as the canon lacks the
express authorisation for this practice. It would be interesting to
hear the response of the Appellate Tribunal to such a question:
would they follow their methodology for disallowing deacons to
administer the Lords Supper, or would they follow their methodology for allowing women bishops, notwithstanding the contrary
evidence of the tradition of the church and the well understood
practice and rules established in the 1662 ordinal (106).
23. According to statutory interpretation, it is improper to impose
upon amending legislation a judicial construction that is
unchanged from that which belonged to the original legislation,
ignoring the import of what has been deliberately added to or
omitted from that legislation.
When we see in Acts in pari materia by the very same Legislature
words added to those used in a prior enactment, it would be
setting at nought the clear intention of the Legislature to give
the latter enactment the construction judicially placed on the
earlier enactment. To do so would be to read out of the statute
expressions which must be held to have been deliberately
inserted to make the new Act differ from the old.6
24. Similarly, Viscount Simon explained the importance of particular

phrases used in legislation.
When the legislature enacts a particular phrase in a statute the
presumption is that it is saying something which has not been
said immediately before. The rule that a meaning should, if
possible, be given to every word in the statute implies that unless
there is good reason to the contrary, the words add something
7
which would not be there if the words were left out.
The removal of any reference to the age of the baptisands (namely

infants), the removal of the phrase in the absence of the priest
and the removal of any distinction between the sacraments in

terms of the deacons role as an assistant to the priest, are
accordingly significant omissions and additions which cannot be
ignored as making provision for a development of the role of
deacon, which was not contemplated in 1662.
25. Geddes & Pearce also address this matter in the following manner.
In what circumstances should a court refuse to adopt an
interpretation of a legislative provision that is otherwise
acceptable on the basis that such an interpretation could also
produce an anomalous result? In Ganter v Whalland [2001]
NSWSC 1101 Campbell J supplied an answer to this question.
At [35] he referred to the language of Mason and Wilson JJ in
the Cooper Brookes case and the words of Jordan CJ in Hall v
Jones and at [36] he suggested that:
From the strength of the language which these judges
employed to describe the sort of consequences which will
cause a possible construction to be rejected, it is apparent
that an anomaly arising from what, on all tests of
construction, is the correct construction of legislation, it
must be a very serious one, before the court is justified in
using that anomaly as a reason for rejecting what otherwise
seems the correct construction. Were courts to act otherwise,
they would risk taking over the function of making policy
8
choices which properly belongs to the legislature.
26. One of the great confusions of the Appellate Tribunal is their

misunderstanding of presidency and administration. They do not
appear to grasp the distinction, and Archbishop Aspinall only
confounds the issues by politely recognising Dr Davies linguistic
preference, but then proceeding to assert without justification,
the terms minister, administer, celebrate and preside at or
over a service of Holy Communion are used here interchangeably
(90). Yet whereas the words minister and administer reflect
the language of he BCP, neither celebrate nor preside occur in
| 27
any authorised liturgy of the Anglican Church of Australia, nor

do they occur in the canons of our Church.
27. The deacons office is that of an assistant, or in the words of the
BCP Ordinal, an inferior office. While the Tribunal makes much
of the fact that the wording of the ordination of presbyters is very
different from that used in the ordination of deacons, the reason
is obvious. The presbyter, as incumbent, is the leader of the
congregation, who oversees (or presides over, if we were to use
this term) the congregation. All ministry that the deacon
performs is by way of assistance to the presbyter. The deacon is
responsible to the presbyter and his or her ministry is in that
sense derivative. Thus deacons do not preside over the baptism
of infants, the presbyter is the president and the deacons only
baptise at the behest of the presbyter. Taking the place of a
deacon is a recognition of this principle. The deacon is never the
president, but the deacon can administer the sacrament. In the
same way a deacon can clearly administer a complete sacrament
(namely, the baptism of infants) by way of delegation and
assistance. My argument is that that service authorises the
deacon not only to assist in baptism but also to assist in the Lords
Supper. Thus when the Tribunal frequently denies the view that
the deacon cannot preside at the Lords supper, it unhelpfully
confounds the terms, as I agree with this conclusion, but do not
agree that presiding should be equated with administering, for
only the latter can be delegated.
28. Moreover, the Tribunal cites the use of the word priest in the
rubrics of the BCP Holy Communion as if to suggest that in some
way this is decisive for disallowing deacons to administer the
Lords Supper. Yet such an opinion seems to be unaware that the
word priest is also used in the rubrics of the BCP Service of
Infant Baptism. Yet the Ordinal does allow the deacon to baptise
infants in the absence of the priest. Thus the authorisation of the
Ordinal supersedes the rubrics of the service. This principle of

rubrical heirarchy is therefore inherent in the BCP, and it is on
this principle that it is argued that the wording of the 1985
ordinal can likewise supersede the rubrics of the BCP. The same
may be said concerning the reading of the Gospel in the Holy
Communion service, which according to the rubrics of BCP is
reserved only for the priest, yet the Ordinal authorises the deacon
to read the Gospel.
Archbishop Aspinalls Opinion

29. Archbishop Aspinall, in a separate but complementary opinion,
also makes much of the fact that since BCP only authorised
deacons to baptise infants, and claims that one should not read
the 1985 service as if it were allowing deacons to baptise those of
any age. This may come as a surprise to many readers to learn
that it is improper (if not illegal) for deacons to baptise teenagers
and adults, despite this practice over many years in a number of
dioceses across Australia.
30. His argument fails at a number of points. It first fails to recognise
that the authorisation for deacons to baptise only infants was not
because it was improper for deacons to baptise adults, but because
there was no adult baptism service available in 1662. The
alternative service to infant baptism was the baptism of those of
Riper Years, not an adult baptism. Why so? Because during the
thirteen years of the Commonwealth of England Anabaptist
practices had so infected the church, that a service which was
planned for temporary utility in England was prepared, not for
adults (as all adults would have already been baptised in the
seventeenth century established church) but for those up to the
age of thirteen (quaintly described as those of Riper Years). The
Preface to BCP indicates that the service was not so necessary in
| 29
times past but had become so due to the licentiousness of the late
times. It also recognised it would be a useful service for baptising
natives on the Plantations, but once the anomaly of unbaptised
members of the Church of England had been remedied, the norm
of infant baptism would return. That the Ordinal was not expressing a theological statement that deacons could not baptise adults
is clearly refuted by its reference to Philip as a member of the
order of deacons, who baptised the adult Ethiopian eunuch
(Acts 6:5; 8:38). Rather, it was expressing the perceived lack of
necessity for deacons to baptise persons other than infants, once
the anomaly introduced during the years of the Commonwealth
had been erased. Yet times had changed by 1985. A permanent
diaconate was contemplated as well as women assuming and
remaining in that office. Hence, despite Dr Aspinalls claim to the
contrary, the radical revision of the Ordinal in 1985, by the
omission of any reference to infants was expanding the age of the
baptismal candidates, in light of the changed conditions, as
referred to in the report from the Liturgical Commission in
presenting the canon to the General Synod.
31. However, another aspect to the authorisation of deacons to
baptise candidates other than infants is the Canon Concerning
Baptism 1992. It is widely recognised that this canon allows
deacons to baptise candidates of any age. Indeed this is the
widespread practice in many dioceses for 20 years, although it is
also true that some diocesan bishops do not allow deacons to
baptise adults, notwithstanding the canon being in force in their
diocese. However, it should be noted that the canon does not
expressly authorise deacons to baptise, rather it speaks of the
minister, which in context is the ordained minster (including
deacons), in the same way that the Solemnization of Holy
Matrimony 1981 includes deacons (see paragraph 22 above). With
the lack of express authorisation and the weight of the BCP
Ordinal, on Dr Aspinalls reasoning, it would appear that the

Canon Concerning Baptism also does not permit deacons to baptise
candidates other than infants. For he declares concerning the
restriction to diaconal baptism of infants only: That specification is provided by the well understood context: the customary
practice and rules established in the 1662 ordinal (106).
32. Dr Aspinall also criticises me for claiming that the 1985 service
authorises deacons to preach in a way that the 1662 Ordinal did
not. In 1662 a deacon could be ordained and licensed, but not
necessarily licensed to preach. Under the 1985 Service it does
not specify that the deacon needs to be specifically licensed to
preach, for the bishop gives him a New Testament, saying:
Receive this sign of your authority to proclaim Gods word. In
BCP the bishop outlines the duties of the deacon, including the
words: to preach, if he be admitted thereto by the Bishop.
Likewise, at the ordination the bishop says: Take authority to
read the Gospel in the Church of God, and to preach the same, if
thou be thereto licensed by the Bishop himself. The condition
does not express the condition in the words: if thou be licensed
by the Bishop (which would be a tautology, as no deacon can
exercise any ministry without a licence from the bishop). Rather
it adds the word thereto, indicating that the licence needs
specifically to include the authority to preach, before the deacon
could preach Gods Gospel. Under BCP, the bishop could exercise
his discretion to license the deacon without any authority to
preach. The difference in the 1985 service is that the bishop
cannot exercise any discretion to prevent a deacon from
preaching. Accordingly, in the 1985 service the bishop instructs
the deacons: preach the word of God in the place to which you
are licensed. The distinction between BCP and the 1985 service
is clear, despite Dr Aspinalls claim to the contrary.
| 31
Bishop Brains Minority Opinion

33. Although Bishop Brain expressed a minority opinion in the 2007
Opinion concerning women bishops, he recognises this precedent
for allowing the plain meaning of the words to determine the
intention of the legislation, even when weighed against the
historical context in which the legislation is passed. Accordingly
he defends the affirmative answer to Question 3.
34. However, Bishop Brain raises a number of other practices across
the Anglican Church of Australia that if not commonplace, have
become accepted practice, with Episcopal consent, but without
General Synod approval (124). He then lists three such practices:
(a) the reservation of the sacrament (not just for extended
communion in nursing homes) for use in parishes without
priests (against the Article);
(b) the practice of giving newly ordained priests a chalice as
well as a Bible at ordination (against the rubric); and
(c) the praying of certain words prior to consecration that
would imply an offering by the priest of bread and wine as
works of our own hands to God (against the order of our
services).
35. Bishop Brain then goes on to say:

I raise these issues to ask the question: do we want the
Anglican Church of Australia to be a Church that operates as a
fellowship-grace model or one that functions on a litigious
antagonistic model? (125)
Conclusion
36. It is difficult to predict how the synod of the Diocese of Sydney
will react to this advisory opinion of the Appellate Tribunal. As
the then Primate, Archbishop Rayner, stated in his Presidential
Address to the 1998 General Synod:

[W]hat the Tribunal has handed down is an opinion, as distinct
from a determination. A determination such as would be made
in response to a reference concerning the validity of a
particular piece of legislation, has a definitive effect, whereas
an opinion is advisory []
Some of us will be pleased with the majority opinion of the
Appellate Tribunal, others will agree with the minority. My
hope is that we shall not retreat into separate bunkholes on the
issue, but that we shall see our conflicting views as an
incentive to pursue vigorouslyand togetherunderlying
questions such as these:
How binding on the church are developments in doctrine
and practice which occurred after New Testament times?
How do we distinguish sound from unsound developments?
How are we to understand the relationship between word
and sacrament?
What are the respective ministries of clergy and laity?
Often our conflicting answers to questions like that of lay
presidency [or diaconal administration] reflect differing
underlying assumptions which need to be articulated and
examined if we are to grow towards a common mind.
37. We conclude, as we began, with an expression of appreciation to

the members of the Appellate Tribunal for their work on this
reference. Although we respectfully disagree with their conclusions,
it is the task of us all to continue to grow towards a common mind,
no doubt including robust debate, but also with charity and grace.
ENDNOTES
In my view it is impermissible to define the orders of bishops and priest and deacons in
terms of function. Nor is it correct to interpret the section, as the assessors do, by forbidding
this Church from altering the basic functions of bishops, priests or deacons. Young J, 1997
Appellate Tribunal Opinion Concerning Diaconal and Lay Presidency, at 27.
1
| 33
[I]t is a highly dubious matter to contend that the Fundamental Declarations demand
the retention of any particular practice of the primitive church, including any primitive
practice of who may be permitted to preside at the eucharist. Clearly the intention of the
Fundamental Declarations here, as a knowledge of our contentious Constitutional history
will bear out, is simply to preserve Apostolic Faith and Doctrine. Nothing is said about
practice. The Bishop of Bathurst, ibid, at 81.
3 Handley J, ibid, at 22.
4 Cited in Pearce & Geddes, Statutory Interpretation in Australia, 6th ed, at 2.28. If a gap
is disclosed, the remedy lies in an amending Act and not in a usurpation of the legislative
function under the thin guise of interpretation. Lord Simmons in Magor and St Mellons RDC
v Newport Corp [1952] AC 189 at 191, also cited by Pearce & Geddes, ibid.
5 Ibid, at 2.29. Pearce & Geddes also cite at 2.29 the opinion of Kirby J in James Hardie
& Coy Pty Ltd v Seltsam Pty Ltd (1998) 159 ALR 268 at 288: Lord Diplocks approach to
statutory construction now prevails, not only in England, but also in Australia and
throughout the common law world. Today, unless driven to the result by unyielding words,
no judicial satisfaction is to be derived from concluding that the manifest target of legislation
has been missed.
6 Craies on Statute Law, 5th ed, 1952 at 133, cited approvingly by the New South Wales
Arbitration Commission in Bridge v Mattis [1953] 52 AR (NSW) 49 at 56-7, cited by Pearce
& Geddes, Statutory Interpretation in Australia, 6th ed, at 3.33.
7 Hill v William Hill (Park Lane) Ltd [1949] AC 530, at 546-7.
8 Pearce & Geddes, Statutory Interpretation in Australia, 6th ed, at 2.36.
2
4
The Constitution, the Appellate
Tribunal and other things
R o b e r t To n g
n this chapter I set out under several headings some short notes
to help the reader reflect on the statement by the Sydney Synod that
the Lords Supper in this Diocese may be administered by persons
other than presbyters.
The constitution
In 1787, the Home Office appointed the Reverend Richard Johnson as
Chaplain to the new penal colony of New South Wales. The evangelical
Eclectic Society and John Newton played a part in securing the
appointment. Thus Christianity in its official Anglican expression
arrived with the First Fleet as part of the apparatus of government.
Johnsons official position in the Colony was unique: while a clergyman
of the Established Church he was on the payroll of the government and
he was a military chaplain appointed by commission in the same way
as the other senior officers. Johnson and his immediate successor
chaplains also held the office of civil magistrate. These early chaplains
T H E C O N S T I T U T I O N , T H E A P P E L L AT E T R I B U N A L A N D O T H E R T H I N G S
| 35
were under the spiritual jurisdiction of the Bishop of London.

In 1824 an Archdeacon of New South Wales was appointed as part
of the diocese of Calcutta. In 1836 the Diocese of Australia was
erected and William Grant Broughton consecrated as bishop. In
1850, Broughton, as Metropolitan of Australasia and Bishop of Sydney,
convened a conference1 with the other bishops in Australasia:
Selwyn (New Zealand 1841), Nixon (Tasmania 1841), Short
(Adelaide 1847), Perry (Melbourne 1847), and Tyrrell (Newcastle
1847). The local organization of the church was a paramount topic
for discussion. Was it legally possible to convene a synod to make
local rules or was local legislation necessary? In the end the church
in some states obtained legislation (eg Victoria & New South Wales)
others (eg South Australia & Queensland) agreed to proceed by
consensual compact. Among other things, the bishops agreed that
the Canons of 1604 would apply as far as local conditions permitted.
Overshadowing the conference was a decision of the Privy Council.2
George Gorham was an elderly clergyman who was suspected by his
Bishop, Phillpotts of Exeter, of not holding the correct doctrine on
baptism. Gorham did not subscribe to the doctrine of baptismal
regeneration. He was indicted for heresy and found guilty by an
ecclesiastical court. He appealed to the Judicial Committee of the
Privy Council and was acquitted. The Archbishops of Canterbury and
York sitting as Assessors concurred with the conclusion. The decision
reverberated around the English and colonial church. The central
concern: is the Church an autonomous body deciding its own
doctrine and laws or, is it dependent on the State to decide these
questions? The 1850 Bishops Conference resolutions were signed by
all six bishops except for the resolution on baptism where the
evangelical Perry issued his own statement.
In the decades following the 1850 conference there were a number
of law cases concerning the Church of England in the Cape Colony in
South Africa which went on appeal to the Judicial Committee of the
Privy Council sitting in London.3 These cases had a seminal effect on
how the colonial churches of the British Empire made arrangements

for self government. In summary, the Privy Council held that The
Church of England, in places where there is no Church established by
law, is in the same situation with any other religious body in no
better, but in no worse position; and the members may adopt, as the
members of any other communion may adopt, rules for enforcing
discipline within their body which will be binding on those who
expressly or by implication have assented to them.4 This meant that
each colonial church had to make their own arrangements for the
discipline of clergy.
Before 1961, the Anglican Church of Australia (ACA) was known as
the Church of England in Australia and Tasmania. It was, according to
the Nexus Opinions, legally part of the Church of England.5 The
Nexus Opinions were answers given by Australian and English Kings
Counsel on questions originally posed by the General Synod of 1905
about the legal relationship between dioceses in Australia and
Tasmania with the Church of England in England. Generally speaking
evangelicals were willing to live with this arrangement. Partly this was
due to their belief that the place of the Book of Common Prayer was
protected and that the canon law of the Church of England outlawed
the ritual practices of the Oxford movement. But, the pressures for an
autonomous Australian church could not be denied.
The present constitution of the ACA was 40 years in the making
with many drafts and synods both General and diocesan. The story is
well told by John Davis in Australian Anglicans and their Constitution.
The document is usually referred to as the 1961 Constitution because
that is the year the several state parliaments passed the necessary
enabling acts. The constitution is clearly a compromise document.
Throughout the period of its development, an underlying fear was that
the staunchly Anglo-Catholic dioceses such as Newcastle, Adelaide
and Brisbane would out vote Sydney and force the introduction of
unreformed ritual practices in church services. From the other side,
there was the fear that Sydney would insist on unadorned 1662 Prayer
| 37
Book worship. The final form of the constitution preserves the primacy
of the diocese over the General Synod.
The compromise in the constitution is twofold. The 1662 Book
of Common Prayer became constitutionally the only authorized
service book for the Australian Church, however Section 4 of the
constitution gives power to a diocesan bishop, on a request from a
parish, to authorize variations. This allows ritual practices which are
variations to BCP to be authorized at the diocesan level.
Secondly, safeguards are built into the canon making process.
Normally canons of General Synod take effect within a month of
passing. However, any canon of General Synod which deals with
ritual ceremonial or discipline does not become part of the law of a
diocese until adopted by ordinance of that synod. Any canon adopted
can later be excluded.
Additionally, if a canon states that it affects the order and good
government of a diocese, then that canon requires adoption by a
diocese before it takes effect in that diocese. Where a canon does not
contain that statement, a diocese can form the opinion that the canon
affects the order and good government or church trust property of the
diocese. If the Standing Committee of General Synod agrees with this
opinion the canon does not take effect in the diocese. If the General
Synod Standing Committee does not agree with the opinion of the
diocese, they refer the question to the Appellate Tribunal for decision.
The 1961 Constitution created a new entity known as the Church
of England in Australia which changed its name to the Anglican Church
of Australia in 1982. The text of the 1961 Constitution is set out as a
schedule to acts of parliament of the various states and territories of
Australia. The various State and Territory covering acts are similar
but not identical. This means that the reach of the constitution may
vary from state to state. In New South Wales, the Court of Appeal
held in Scandrett v Dowling6 that the 1961 Constitution was binding
in respect to property. That is, the court would uphold property
decisions made pursuant to provisions of the constitution. Other
provisions of the 1961 Constitution were, in the words of the court,

obligations binding in foro conscientiae but without contractual force.
The South Australian covering act has a provision which allows the
Adelaide Diocese (and the Diocese of The Murray which was created
out of Adelaide) to withdraw from the General Synod constitutional
arrangements.
The Appellate Tribunal
A second issue of contention and compromise in the constitutional
debates was the composition and function of an appeal tribunal. Clergy
discipline and heresy were the two main subjects of concern, the Privy
Council appeal cases from the Colony of Cape Town and the Gorham
decision mentioned earlier provided concrete examples of the
problems. The Anglo Catholic position was that only bishops should
decide questions of doctrine and belief and accordingly bishops should
sit alone or be a majority. The eventual compromise was a seven
member tribunal comprised of three diocesan bishops and four
lawyers. A bishop and a lawyer elected by the House of Bishops, a
bishop and two lawyers elected by the House of Clergy and a bishop
and two lawyers elected by the House of Laity. Questions of doctrine
on which the Tribunal are agreed are referred to the House of Bishops
and a board of assessors for report. Interestingly, the Tribunal is not
bound to follow any conclusion reached by the bishops or assessors.
The expectation was that the Tribunal would have very little work.
The most easily understood function of the tribunal is acting as a
final court of appeal from diocesan tribunals, provincial tribunals and
special tribunals (which hear charges against bishops) on matters of
faith, ritual, ceremonial or discipline. Since 1961, there has been one
unsuccessful appeal from a clergyman on a discipline matter.
The constitution provides other ways a matter can come to the
Appellate Tribunal. By section 29 they can be asked if a canon or
proposed canon is inconsistent with the fundamental declarations or
| 39
ruling principles of the constitution. Whether a canon affects the

good order and government of the church within a diocese or the
church trust property of a diocese are decisions for the Tribunal under
section 30. In recent years a number of canons have been referred
under this section. It is the provision in section 63(1) which has given
the tribunal most of its work. That section allows any question arising
under the constitution to be referred to the Appellate Tribunal for
determination or opinion. The reference can be made by the Primate,
by resolution of the General Synod, Provincial or a Diocesan Synod
or by 25 members of the General Synod.
What is the character of the determination or opinion delivered
by the tribunal in answer to a question put to it under section 63(1)?
For sometime now the prevailing view expressed in debate in the
Sydney Synod has been to characterize the reports of the tribunal made
under section 63(1) as advisory opinions. This means that while due
and proper respect should be given to the tribunal and its work,
answers given to questions asked are advisory and not binding. The
contrary view is taken by the new President of the tribunal, amongst
others, and so the character and force of the answers remains a
contested question.
Some other things
Recent questions posed to the tribunal go much further than the
construction of words in the constitution. At a simple level, the
mixed composition of the tribunal requires lawyers to form views on
theological issues and bishops to form views on legal issues. But it is
much more than that. Underlying assumptions in the constitution,
whether political, legal or theological all form part of the mix in
shaping any answer.
On most issues of high interest and before any formal referral to
the Tribunal, the bishops, in their role as diocesan bishops, may have
already addressed the issue. Also, most of the lawyers, as chancellors
or senior lawyers in their own diocese, may well have provided advice
on the question. Diocesan bishops are constitutionally members of
the General Synod and most of the lawyer members of the tribunal
are or have been elected representatives. They participate in the
making of legislation which will then be tested in the tribunal of
which they are members. There have been occasions when members
of the tribunal have entertained requests to stand down because of
perceived bias but so far no member has done so.
How final or binding is a decision or opinion? In a discipline case
the tribunal is limited to imposing one of the five sentences stated in
section 60 of the constitution and even then the sentence is only a
recommendation to the relevant bishop. While the bishop is bound
to pronounce the sentence on the guilty clergyman, the bishop is at
complete liberty to impose a lesser penalty or none at all. Hardly a
decision which is final or binding! On the section 63(1) answers,
there is no legislative obligation on the General Synod to follow the
answers and answers given by the Tribunal do not restrict the ambit
of the legislative powers of the General Synod. Again hardly final or
binding. There is no General Synod apparatus to enforce answers
without resort to the secular courts.7
On the wider canvas of Australian jurisprudence, and despite
some efforts, advisory opinions, as a present function of the judicial
arm of government is almost unknown. With a domestic tribunal, a
function to interpret and construe the meaning of words in the
constitution of an association is of practical utility. However, if this
useful constitutional provision is exploited to require answers to
questions which should be properly determined by the rule making
body of the association the process becomes politicized so that the
persuasive power and moral force of advisory opinions is significantly
weakened and compromised.
Omitting the one discipline appeal, set out below are short
references to the opinions delivered by the tribunal. There is no
uniform recording of the opinions or agreed method of citation.
| 41
Appellate Tribunal Opinions

1. 18 September 1972: On Section 4 of the Constitution relating to
deviations from forms of service. s.63(1) referral by Primate at the request
of the Canon Law Commission and the Liturgical Commission
2. 25 September 1974: On the remarriage of divorced persons. s.31
request by 34 clergy as well as s.63(1) referral by Primate
3. 22 December 1976: On questions related to AAPB. s.63(1) referral
by Primate
4. 8 February 1980: On remarriage of divorced persons. s.63(1) referral
by Primate
5. 8 April 1981: On 2 questions re proposed addition to Section 4 and
Section 74 and alteration of Sections 27, 28, 29 and 30 of the
Constitution directly or indirectly related to the Ordination of Women.
s.63(1) referral by Primate.
6. 14 August 1985: On admission of women to holy orders. s.63(1)
referral by Primate
7. 27 February 1987: On validity of Canon to authorize women deacons.
s.30 referral by Primate
8. 6 June 1989: Opinion on s.17(5) and women deacons. s.63(1) referral
by Primate
9. 2 November 1989: Opinion on the Ordination of Women to the Office
of Priest Act 1988 of the Synod of the Diocese of Melbourne (The
Melbourne Opinion)
10. 28 November 1991: Opinion on Eleven Questions Appertaining to
the Ordination of a Woman to the Order of Priest or the Consecration
of a Woman Bishop, (The Women Priests Opinion)
11. 7 March 1996: Reference concerning Diaconal and Lay Presidency
s.63(1) referral by Primate
12. 24 December 1997: Questions on the conduct of church services.

13. 4 April 2007: Section 30 and Section 63(1) opinion re Special Tribunal
Canon 2004 and National Register Canon 2004
14. 26 September 2007: Opinion on Women bishops and the constitution
15. 8 March 2010 Section 30 opinion re National register Canon 2007;
Special Tribunal Canon 2007 and Offences Canon Amendment Canon
2007
16. 10 August 2010: Reference On The Legality Of The Administration
Of Holy Communion By Deacons Or Lay Persons.
ENDNOTES
The conference is reported in Giles R, The Constitutional History of the Australian Church,
Skeffington & Son Ltd, London, 1929
2 Gorham v Bishop of Exeter 1850 Moore's Special Reports 462. See Chadwick O, The
Victorian Church Part One 1829-1859, SCM Press Ltd, London, 1987 p 250-271 for background
and analysis.
3 Long v Cape Town (Bishop of) (1863) 1 Moore NS 411;15 ER 756; Re Natal, Lord Bishop of
(1865) III Moore NS 115;(1865) 16 ER 43; Bishop of Natal v Gladstone (1866) 3 Ch 1; The
Bishop of Cape Town v The Bishop of Natal (1869) 6 Moore 204
4 Long v Cape Town (Bishop of) (1863) 1 Moore NS 411; 15 ER 756 at 774
5 Giles R, The Constitutional History of the Australian Church, Skeffington & Son Ltd,
London, 1929 has a chapter on the nexus opinions.
6 Scandrett v Dowling (1992) 27 NSWLR 483
7 Scandrett v Dowling (1992) 27 NSWLR 483 at 542 citing Long v Cape Town (Bishop of)
(1863) 1 Moore NS 411 at 461-462; 15 ER 756 at 774-775
| 43
5
The theological necessity of
lay administration
1
Ma r k Th o m p s o n
he decision to refer the matter of lay and diaconal administration

of the Lords Supper to the Appellate Tribunal in 2009 involved an
assumption that the questions surrounding this issue are primarily
legal rather than theological. After all, the Appellate Tribunal was set
up to deal with matters of law. However, over the long years of debate
on this subject, Sydney Anglicans have insisted that the critical
questions are in fact theological and that our theology should
determine our institutional structures and their legal expression
rather than the other way around. Enormous pressure has been
brought to bear in order to dismiss this proposal as illegal, innovative,
or unanglican, while the theological arguments put forward by Sydney
theologians in the course of the debate have not been engaged with
seriousness. Nevertheless, some even in Sydney have asked whether
it really is necessary to move in this direction, especially given the
strident opposition that the mere mention of the subject seems to
generate in some quarters. The prior question is whether our current
practice, including the absolute prohibition against anyone but a
presbyter administering the Lords Supper, is biblically and

theologically justified. It is the contention of this paper that a
convincing case can be mounted for the theological necessity of
change in the direction suggested.
The theological necessity of this move arises from three
interrelated facts. The first is the silence of the New Testament on
the subject of who should administer the Lords Supper in the
churches.2 There may well be a number of reasons for this. The
proclamation of the Lords death in the context of a memorial meal
receives only scant attention in the New Testament. Apart from the
narrative of the Last Supper in the Gospels, repeated in summary in
1 Corinthians 11, there is very little said about the elements used, the
prayers that are made, or who does what whenever the meal of that
night is re-enacted in one way or other in memory of Jesus
redemptive death for us.3 In other words, the question of who it is
who prays and distributes the bread and the wine on such occasions
would not seem to be an important one as far as the New Testament
is concerned. Our preoccupation with this question has other roots.
At one level we should admit that this silence cuts both ways. While
insistence upon a prohibition that cannot be found at all in the New
Testament is difficult to sustain, so too is an insistence that it is wrong
for any group so to order its life together that it designates certain
members as appropriate persons to administer the Lords Supper
(whether they be members of the local congregation authorised in some
way or other, or those ordained to the presbyterate and serving in the
congregation). The silences of Scripture give room for freedom in the
service of love and edification and filling that silence with our own rules
and regulations (in either direction) is fraught with difficulty.
However, the chief difficulty arises when our practice is more
restrictive than the New Testament mandates. Such a restriction is
often theologised in unhelpful ways. When it is argued that only a
presbyter may administer the Lords Supper, a distinction is often
made between presbyteral ministry and every other type of ministry.
T H E T H E O L O G I C A L N E C E S S I T Y O F L A Y A D M I N I S T R AT I O N
| 45
By virtue of ordination, the presbyter is given a special authority

which is necessary if the Lords Supper is to be authentic. The
presbyter or priest stands in a special relation to God, able to stand
before God on behalf of the people and before the people on behalf
of God. When such arguments are mounted, it is hard to avoid a
sacerdotal view of the presbyterate, an idea which undermines the
unique priesthood of Christ and both the singularity and finality of
his sacrifice on the cross. It is also hard to avoid the suggestion that
this activity lies at the heart of presbyteral ministry. When others are
permitted to share in every other form of ministry exercised by the
presbyter (preaching, pastoral care, parish administration, leading
services and even baptism) but are prohibited from administering
the Lords Supper, the conclusion seems obvious that this is the
distinguishing mark of presbyteral ministry: this is the essence of
what it means to be ordained. Yet in the New Testament the ministry
of the presbyter or elder is not in essence liturgical but pastoral. The
end result of an insistence on this prohibition, then, is confusion, or
even distortion, of the biblical pattern of ministry.
The second fact upon which the case for the theological necessity
of this move is built is the relation of word and sacrament in the New
Testament and the Anglican formularies. As already observed, New
Testament teaching about the sacraments is rather limited.4
However, nowhere in the New Testament is Christian practice
separated from Christian teaching. On the contrary, Christian
practice, both individual and corporate, is repeatedly anchored in
Christian teaching and Christian teaching, it is insisted, must show
itself in Christian practice. In both contexts in which the Lords
Supper is discussed in the New Testament (the Gospels and
1 Corinthians), participation is informed by teaching. It is very
difficult to sustain a separation between a teaching function and a
liturgical function. Furthermore, at the heart of the apostolic
requirements for oversight or eldership in the congregation is a
faithful adherence to the truth (in confession and in practice) and
the ability to teach it to others. The apostle did not identify a separate
liturgical or sacramental function which would distinguish the
ministry of the elder from that of others. Eventually the Anglican
Ordinal would pick up this connection and seek to reflect it in the
charge to presbyters to be a faithful dispenser of the word of God and
of his holy sacraments (AAPB).
This connection of word and sacrament, along with the priority
the New Testament so obviously gives to teaching, renders deeply
problematic any suggestion that a distinguishing mark of the
presbyter is the authority (and/or capacity) to administer the Lords
Supper. It also raises important questions about a willingness to
allow others to preach while insisting that only the presbyter may
administer the Lords Supper. The encouragement of lay preachers
has been a very welcome development over the last two centuries or
so. It has enriched the life of the churches and given due recognition
to the fact that while presbyters must be gifted and capable teachers,
they are not the only ones. However, if unordained people are
permitted to preach, with all the importance the New Testament
places on that function, why are they forbidden to administer the
Lords Supper? By retaining such a prohibition, do we not elevate the
Lords Supper above preaching the word of God? Is such a conclusion
not made all the more plausible by a willingness to allow laypeople to
lead other parts of the liturgy, to pray and read the Bible, and yet
refuse permission for them to administer the Supper?
The separation of word and sacrament in this way raises further
questions about the nature of the church. It is possible to give great
importance to the practice of baptism and the Lords Supper without
suggesting that these constitute the Christian gathering. Christian
churches are not, first and foremost, sacramental entities. They are,
instead, gatherings of those God has called to himself to live together
under his word. Disciples of Christ are brought together by the Spirit
to hear what God has to say to his people and to pray together to our
heavenly Father. In such a context the practice of baptism and the
| 47
Lords Supper is entirely appropriate and highly significant. However,

every church gathering is an expression of the heavenly gathering
around Christ (Heb. 12:2224) and an anticipation of the final
gathering of believers from a myriad of cultures, nations and languages
around the throne of God and the Lamb (Rev. 7:910). Singling out the
Lords Supper as the indispensible core of Christian corporate life and
insisting that it may only be administered by those who have been
ordained suggests that other occasions, in which Gods word is heard
and believed and in which prayers are made to the Father who has
promised to hear us, but in which the Lords Supper is not conducted,
are somehow deficient. So another result of this insistence on the
prohibition against all but a presbyter administering the Supper is
confusion, or even distortion, of the biblical teaching about church.
Alongside the New Testament silence on the question of who
administers the Lords Supper and its vital connection of word and
sacrament in the life of the church, stands a third fact. The New
Testaments teaching on the nature of the Lords Supper itself draws
attention to the manner of our participation rather than the identity
of the one who administers.5 The Last Supper was an anticipation of
what Jesus was about to do, couched in the context of the ancient
Passover meal. He was to achieve a redemption that would cause the
Exodus to pale by comparison and it would be achieved by means of
his broken body and his shed blood. Do this, Jesus said to his
disciples, in remembrance of me (Lk 22:19). When the Lords
Supper is mentioned in 1 Corinthians 11, once again the note of
remembrance is prominent (vv. 24, 25). Paul goes further, though,
and speaks of how eating this bread and drinking this cup is in fact a
proclamation of the Lords death until he comes (v. 26). The disorder
in Corinth which he is addressing comes through unworthy eating
and drinking, not from an inappropriate person administering the
meal (v. 28). He calls on those who participate to examine themselves
rather than to ensure that the one saying the prayers and distributing
the bread and wine has certain qualifications (v. 28).
Though questions remain for some, it is abundantly clear that in

both the New Testament contexts in which the Lords Supper is
mentioned it is a congregational activity rather than a priestly activity.
The validity of the Lords Supper does not depend on the person
administering it but on the attitude of those participating in it towards
each other and towards the atoning death of Jesus which is its proper
focus. The proclamation of the gospel which Paul envisages as the
meaning of the meal shared by the Corinthians, is a proclamation by
the congregation, not just by the individual who is leading the prayers
and distributing the loaf and the cup. A similar point is made in the
Thirty-nine Articles of Religion, which insist that the efficacy of the
sacrament depends not on the worthiness or otherwise of the
minister but on Christs institution and promise (Article 26).
This biblical focus is compromised by our preoccupation with the
identity of the one who administers the Supper (or with the precise
words spoken or actions performed at the right moment). Things
about which the New Testament says little or nothing become central
in our practice and the more important things fade into the
background. The insistence on only presbyters administering the
Supper runs the risk of changing the character of the Supper, from
being a corporate act of remembrance in which the critical factor is the
attitude and focus of the participants in the light of Christs promise, to
being something done for or on behalf of the congregation by a
particular person with distinctive qualifications and authority. It
becomes an exercise in priestly ministry rather than an opportunity for
all present to testify again of the mercy of Christ in which we trust for
a full and complete salvation. The focus turns from the heart and mind
of the recipients to the words and actions of the one administering. At
this level too, the absolute prohibition of all but the ordained presbyter
administering the Supper brings in its wake confusion and distortion.
These three interrelated facts, the silence of the New Testament on
the identity of the one who administers, the connection of word and
sacrament in the life of the congregation, and the New Testament
| 49
teaching on the nature of the Lords Supper generate pressure to

abandon the exclusion of all but the presbyter from administering
the Supper. An absolute prohibition has turned an exercise of
freedom (the freedom of one group of Christians to order their
corporate lives in a way that does not compromise the teaching of
Scripture) into a problematic opportunity for confusion and
distortion about the biblical pattern of ministry, the biblical teaching
on church, and the biblical teaching on the Lords Supper itself. Such
confusion is not merely hypothetical. It has been played out all over
the Anglican world. In this light, the call to abandon the prohibition
is both an act of love and a theological necessity.
These theological considerations (and others raised in the course
of the debate in Australia over the past thirty-five years) have been
very largely glossed over by many who reject the suggestion that the
prohibition we have been considering should be abandoned.
Questions of order and legality have more recently been the focus of
attention. The reference to the Appellate Tribunal is further evidence
of this trend. For this reason it is important to draw attention again
to the theological character of the debate in the diocese of Sydney.
Our theology must determine our institutional structures and their
legal expression rather than the other way around.
ENDNOTES
A fuller account, summarising the theological arguments that have been used over the
course of the debates, is found in M. D. Thompson, Lay Administration: The Theological
Considerations, in The Lords Supper in Human Hands: Who Should Administer? (ed. by P. Bolt,
M. Thompson & R. Tong; Camperdown, NSW: Australian Church Record, 2008), pp. 2135.
2 This has been the conclusion of a number of reports from the Sydney Doctrine
Commission, and it has been made by many others as well. T. Lloyd, Lay Presidency at the
Eucharist? (Grove Liturgical Studies 9; Bramcote: Grove, 1977), p. 29.
3 There is some debate about what was in fact going on in 1 Corinthians 11 and the extent
to which it mirrors the Holy Communion as it is structured by the Book of Common Prayer
and later Anglican prayer books. That debate only marginally impacts the question we are
considering (that of lay and diaconal administration of the Lords Supper). However, it is
striking that in a passage in which Paul is undoubtedly seeking to deal with disorder in the
congregational remembrance of the Lords death associated with some kind of meal, he
1
spends no time at all on the question of who should administer it.

4 Part of the difficulty we have in this area may well arise from the attempt to bring
together two practices attested in the New Testament (baptism and the Lords Supper),
create a common category, sacraments, in which to place them, and then explain them both
in terms of general principles said to belong to that category. Another difficulty is the
tendency to assume the practice of water baptism wherever the terminology of baptism is
used in the New Testament and similarly to assume the Lords Supper or a proto-Lords
Supper whenever any mention is made of breaking bread or sharing a meal together.
5 Once again, technical debates about whether the Lords Supper as we know it was
envisaged from the beginning continue to rage in some circles. So too some have questioned
what was meant by Jesus words Do this in Luke 22:19. These debates need not call into
question any of the observations made here.
| 51
6
Conclusions
he Diocese of Sydney has discussed Lay and Diaconal

Administration of the Lords Supper openly, in dialogue with others,
and in a way that is in continuity with our Anglican heritage and
cognizant of our missionary focus.
The reference to the Appellate Tribunal from 25 members of the
Anglican Church of Australia, all of whom are from outside the
Sydney Diocese, questioning the legality of Sydneys Resolution
27/2008 represents the most recent chapter of this discussion.
The General Synod of the Anglican Church of Australia met in
September 2010, just after the Appellate Tribunal delivered its opinion.
In response, the General Synod passed Motion 28.21, formally without
any debate occurring on the floor:
That General Synod:
1. Recalls the opinion of the Appellate Tribunal of 24 December
1997 that it is consistent with the Constitution of The
Anglican Church of Australia to permit or authorize diaconal
or lay celebration of the Holy Communion, but only under
and in accordance with a Canon of General Synod.
2. Notes the opinion of the Appellate Tribunal of 12 August
2010 concerning diaconal or lay celebration of the Holy
Communion and the Tribunals opinion that no existing

Canon of General Synod authorizing diaconal or lay
celebration at the Holy Communion has been identified; and
3. noting the Tribunals majority advice that it is up to the
Bishops and this Tribunal to see that the rules of the
Church are upheld, encourages all diocesan Bishops in
their task of upholding the rules of the Church.
The next step in this discussion will come at the annual meeting of
the Sydney Synod in October 2010.
We said in the Introduction that our purpose in publishing this
booklet is to help members of the Sydney Synod consider the
advisory opinion of the Appellate Tribunal in broad context as that
opinion intersects with synod resolution 27/2008.
We have drawn attention to the opinion of Bishop Peter Brain
(Chapter 2). The reasoning of the majority opinion of the Tribunal
can also be questioned, as is evident in Bishop Davies response to the
publication of the Tribunals opinion (Chapter 3).
The Appellate Tribunal and its opinions need to be set against the
history and constitution of the Anglican Church of Australia, and
against some weaknesses in the way the Appellate Tribunal presently
operates, as Robert Tong has argued (Chapter 4).
But, far more importantly, as Mark Thompson has argued
(Chapter 5), the narrow legal questions need to be set in the more
significant context of the biblical and theological understandings and
directions. The conscience of Gods people is not duty-bound to
anything other than the Word of God and, on the issue of who
administers the Lords Supper, Gods word is silent. This opens up an
area of freedom.
The arguments put forward by the Diocese of Sydney over the last
40 years have been shaped by our commitment to Scripture as the
ultimate authority in all matters. Our theology should be determined
by the teaching of Scripture and our practice, together with the legal
C O N C LU S I O N S
| 53
structures which support it, should be shaped by our theology.

Among the key theological considerations which we need to take
into account on this issue are the nature of Christian ministry, the
nature of life in the Christian congregation and in particular the
nature of the Lords Supper. To continue a prohibition which has no
ground in Scripture risks confusion in each one of these areas.
Instead the responsible use of Christian freedom is called for. There
is nothing inherently wrong with a deacon or lay person
administering the Supper just as there is nothing inherently wrong
with a congregation or fellowship of congregations deciding that
only the minister will do so. However, problems arise when a
decision in one direction or the other is theologized in a way which
compromises these wider theological considerations. Where there is
scripturally endowed freedom of action, then there should be a
reluctance to resort to legal means to control another diocese.
On the other hand, because the legal opinions answer narrowly
conceived questions, and are capable of differing and disputable
outcomes, Sydney Synod must continue to act according to several
simple questions: What does the Bible say? What does good
Christian theology allow, or demand? How will Christs mission be
served by changes we make, in order to stay the same?
Sydneys discussion of lay and diaconal administration

of the Lords Supper has occurred for some forty years. After a
related legal question was referred to it, the Appellate Tribunal
handed down its opinion in August 2010. This legal opinion needs
to be set within its proper context, and the biblical-theological
discussion about the issue needs to continue. This booklet is an
epilogue to The Lords Supper in Human Hands (2008), updating
the discussion on the eve of Sydney Synod, October 2010.
This is a joint venture between

the Australian Church Record
and the Anglican Church League.

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THE

The Lords Supper in Human Hands Epilogue

The Lords Supper in human hands [electronic resource]:

Anglican Church of Australia. Appellate Tribunal.

Cover design and typesetting by Lankshear Design.

his booklet comes in the wake of an opinion delivered on the

the entire Communion such as Resolution 1.10 of the 1998 Lambeth

can authorise the practice.

There has been a strong reaction to this resolution of the Sydney

The Appellate Tribunal published their opinion on this most recent

he Right Reverend Peter Brain, Bishop of Armidale and a member

Bishop Brains Agreement With the Majority and Reservations

2) Paragraph [32] of the majority opinion noted that the 1985

bishops could celebrate Holy Communion but the New

Bishop Brains Minority Report

(iii) The New Testament knows of no ministry in the church of

We do have already across the Anglican Church of Australia two

To conclude his opinion, Bishop Brain provided his own summary,

THE MINORITY REPORT

24 December 1997, was that:

3. In 1997 the Appellate Tribunal expressed the opinion that

The Legal Argument for Diaconal Administration

1985 service were not delineated separately with respect to each

The Majority Opinion of the Appellate Tribunal

there existed a similar lack of express authorisation? The following

Yet strangely, if one were to apply these comments and the

14. The Tribunals opinion claims to affect the future interpretation

Presumably this illustration, provided by one of the written

deacon and presbyter, what would we find? We would find that

his/her ministry to the parish by conducting communion

19. It is difficult to understand the logic of the 2010 Appellate

Similarly Pearce & Geddes state:

21. In a number of dioceses in Australia, the custom of local priests

of full time stipendiary priests. In the BCP Ordinal the priest is

Lords Supper. Yet if the same methodology were applied to the

24. Similarly, Viscount Simon explained the importance of particular

The removal of any reference to the age of the baptisands (namely

and the removal of any distinction between the sacraments in

26. One of the great confusions of the Appellate Tribunal is their

any authorised liturgy of the Anglican Church of Australia, nor

Ordinal supersedes the rubrics of the service. This principle of

Archbishop Aspinalls Opinion

Ordinal, on Dr Aspinalls reasoning, it would appear that the

Bishop Brains Minority Opinion

35. Bishop Brain then goes on to say:

Address to the 1998 General Synod:

37. We conclude, as we began, with an expression of appreciation to

were under the spiritual jurisdiction of the Bishop of London.

how the colonial churches of the British Empire made arrangements

provisions of the 1961 Constitution were, in the words of the court,

ruling principles of the constitution. Whether a canon affects the

Appellate Tribunal Opinions

12. 24 December 1997: Questions on the conduct of church services.

he decision to refer the matter of lay and diaconal administration

presbyter administering the Lords Supper, is biblically and

By virtue of ordination, the presbyter is given a special authority

Lords Supper is entirely appropriate and highly significant. However,

Though questions remain for some, it is abundantly clear that in

teaching on the nature of the Lords Supper generate pressure to

spends no time at all on the question of who should administer it.

he Diocese of Sydney has discussed Lay and Diaconal

Communion and the Tribunals opinion that no existing

structures which support it, should be shaped by our theology.

Sydneys discussion of lay and diaconal administration

The Lord's Supper in Human Hands

The Lord's Supper in Human Hands