Submissions on Presidential Ruling 13

Concerning the Basis of Union and the Constitution

David Beswick, February-March 1993

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Background: These submissions to the President and Assembly Standing Committee of the Uniting Church in Australia arose from concerns about the way the National Assembly had acted at the Sixth Assembly in 1991 when it appeared to depart from commitment to the Basis of Union, the agreement under which the Congregational, Methodist and Presbyterian Churches agreed to unite in 1977. I objected to the President ruling that the Assembly was not bound to act in accordance with the Basis. Things have changed now and I would not necessarily hold with all I said then, but the basic question of how our agreed or received doctrines limit what the Assembly or other councils of the Church may do remains. For further background see the notes introducing the paper The Constitution and the Basis of Union.

1. A request to the Assembly Standing Committee not to confirm the ruling on the Basis of Union February 1993

2. Submission to the Assembly Standing Committee, March 1993 on Why the standing committee should not confirm the president's ruling on the validity of the constitutional amendments

3. Extracts From Letters to the President on the Basis of Union, August 1992

1. A request to the Assembly Standing Committee not to confirm the ruling on the Basis of Union February 1993

I wish to make a submission to the Standing Committee on the President's ruling on Dr. Gordon Watson's request regarding the validity of the amendments to the Constitution on ministry which were initiated by the Sixth Assembly and to suggest that there are serious consequences which need to be considered in the light of the recommendation of the Presbytery of Gippsland of May 1992 and the resolution of the 1992 Synod of Victoria on the Basis of Union. For reasons stated briefly in the attached paper `WHY THE STANDING COMMITTEE SHOULD NOT CONFIRM THE PRESIDENT'S RULING ON THE VALIDITY OF THE CONSTITUTIONAL AMENDMENTS' I submit that the Standing Committee should either disallow the ruling or defer any other action to confirm or vary it while it investigates the consequences and takes action to ensure that the Church is not left without any doctrinal standards.

In the meantime I would urge the Standing Committee to consider making a declaration that:

1. The basic doctrines of the Church and the sources of doctrinal authority acknowledged by the Church are the doctrines confessed and the sources specified in the Basis of Union; and that

2. Any departure from those basic doctrines and sources of doctrinal authority is a matter of vital importance to the life of the Church under paragraph 39 of the Constitution.

The recommendation of the Presbytery in May 1992 which the ASC suggested should be taken up at our recent meeting was that:

The Constitution be amended to require all councils of the Church to act in accordance with the Basis of Union except in those matters which the Assembly has referred to Congregations, Presbyteries and Synods as matters of vital importance to the life of the Church and has obtained the approval of the Church at large.

Resolution 92.5.5.2 of the Synod of Victoria was that:

The Assembly be requested to provide a clear statement affirming the role and status of the Basis of Union in the Uniting Church, especially in the resolution of matters before the councils of the Church.

In view of the these resolutions and the questions raised by the President's ruling on Dr. Watson's request I submit that, in addition to making the interim declaration proposed above, it would be advisable for the Standing Committee to:

1. Request the Legal Reference Committee, in consultation with the Commission on Doctrine, to draft amendments to paragraph 39 of the Constitution, and if necessary to other paragraphs referring to doctrine, to give effect to the recommendations from the Presbytery of Gippsland and the Synod of Victoria on the Basis of Union.

2. Seek legal advice on how the Uniting Church Acts can be amended to ensure that the Assembly acts in accordance with the Constitution of the Church if it is not required to so act at under the present legislation.

In regard to possible amendments to paragraph 39, the question has been raised as to how it could be decided whether action constitutes a departure from the Basis of Union, especially in view of the fact that the Basis itself envisages new developments in church order. It is important to acknowledge that the possibility and desirability of new developments does not mean that any kind of change whatever is consistent with the Basis. I would suggest that the Legal Reference Committee, with appropriate advice, consider the following possibilities:

1. A tribunal similar to the Appellate Tribunal of the Anglican Church of Australia might be appointed by the Assembly.

2. That a case for inconsistency would exist if the Commission on Doctrine advised the Assembly or its Standing Committee that an action or proposed action was inconsistent with the Basis.

3. That a simple majority of the Assembly, or a resolution by two Synods or by one third of the Presbyteries would be sufficient to establish that a matter is of vital importance to the life of the Church.

The general principal should be to ensure that the guiding role of the Basis of Union which continues to be acknowledged in the Church should be formally recognized, and that the basic principles of faith and order which it contains should be changed only with a level of agreement in the Church similar to that which was required for its adoption.

It must be emphasised that in the light of the President's ruling, whether or not it is confirmed, and the concerns for the future of the Church which have arisen over the Basis of Union, there are questions which cannot be resolved by resolutions only of the Assembly or its Standing Committee. It is essential that the powers of the Assembly be limited in a manner that is legally enforceable. If that involves a measure of self limitation, there are sound Christological reasons for the willing acceptance of such limitations.

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2. Submission to the Assembly Standing Committee, March 1993

WHY THE STANDING COMMITTEE SHOULD NOT CONFIRM THE PRESIDENT'S RULING ON THE VALIDITY OF THE CONSTITUTIONAL AMENDMENTS

Dr. Gordon Watson, a member of the Assembly, requested a ruling on the validity of the constitutional amendments under paragraph 71 of the Constitution and Regulation 3.6.14. It was in effect a request for interpretation of the Constitution and the resolutions of the First Assembly adopting the Interim Constitution and declaring it to be consistent with the Basis of Union. Dr. Watson submitted that some of the amendments concerning the ordained ministries which were initiated by the Sixth Assembly were invalid because they were inconsistent with the Basis of Union and that the Constitution must be interpreted in a manner which maintains consistency with the Basis. The President ruled that no consistency with the Basis is required and that the amendments to the Constitution were valid because of the powers of the Assembly derived from state legislation.

I made a separate submission to the President in support of Dr. Watson's request (see appendix), in which I sought a ruling that the amended definition of `minister [of the Word]' in the Constitution is invalid because it is inconsistent with the Basis of Union and I advanced some reasons for expecting consistency between the Constitution and the Basis which were not included in Dr. Watson's request. The President did not deal specifically with my request or the reasons which I advanced, but he could quite reasonably be said to have dealt with it by the general nature of the ruling on Dr. Watson's request of which he sent me a copy.

It is not possible in such a brief paper as this must be for the matter to be dealt with in the detail that it requires. I hope that it will be sufficient for the Standing Committee to see the wisdom of taking time for the matter to be thoroughly investigated before the Church is committed to a position in which the doctrinal basis for decision making in councils of the Church is removed and nothing is substituted for it. By making his ruling on the basis of state legislation the President has in effect set the Constitution aside as far as the powers of the Assembly in this matter are concerned. I believe that the President was in error in making this ruling, and I would be prepared to argue the case at length in an appropriate forum, but the burden of my submission to the Standing Committee at this time is that it is not in the interests of the Church for the ruling to be confirmed.

More time is needed for the pastoral and legal consequences of confirmation (or variation, etc.) to be studied and for consequential actions to be taken to overcome some of the problems which must arise. While Reg. 3.6.14 (a) (iv) makes it clear that the ruling is binding until it is confirmed, varied or disallowed by the Assembly or its Standing Committee, paragraph 71 of the Constitution provides that a ruling may be confirmed, varied, modified, rescinded or over-ruled by the Standing Committee, and I submit that the Standing Committee can exercise its discretion not to take any of these actions while it investigates the matter, perhaps with a view to taking to the next Assembly a set of recommendations designed to deal with deficiencies in our church order which have been revealed by this ruling. In support of this request I submit the following points for consideration as no more than indications of the nature of the problem. A detailed argument against the ruling requires more time and space.

1. Failure to Publish or Circulate the Ruling Justifies Delay

Regulation 3.6.14 (a) (v) requires that a ruling be published or circulated. It appears at this time that Presbyteries have not been informed and that most members of the Assembly are not aware of the ruling. The ruling is quite radical (see below) in its affect on the ways in which the powers of the Assembly vis a vis the Synods and Presbyteries are understood and how it affects the relationship between ministers and the councils of the Church. It is unwise for it to be confirmed in a hurry while the wide range of people affected are not aware of it.

2. The Ruling was Not an Interpretation of the Constitution

The President is not required to rule or to give an opinion on questions of state law, but the basis of his ruling is an interpretation of The Uniting Church Act (in NSW, with similar legislation in other states). Paragraph 71 of the Constitution which together with the relevant Regulations gives the President power to make rulings refers only to `rulings as to the interpretation of this Constitution or any of the Regulations' and Regulation 3.6.14 (a) (ii) provides that rulings are subject to the provision `that the request is related to an interpretation of the intention of a resolution of the Assembly, or the interpretation of the Constitution or Regulations or a decision as to whether the action of any body within the Church conforms to the Constitution, relevant Regulations, by-laws or rules.' The President apparently satisfied himself that it was a matter of the kind referred to in the Regulation but did not see the implication that is clear in the Constitution that his ruling should have been restricted to interpretation of the Constitution and actions of the Assembly. If it was not possible for him to give an interpretation without reference to state law, which appears to make the Constitution irrelevant, the President should have declined to give a ruling.

3. The President could have Declined to Rule

The President could have declined to rule on the question on the grounds that it was beyond his powers and proper function because of the possible consequences of state legislation on which he was not competent to rule. He might have decided that the request was incompetent because it did not rely on a basis on which he could rule. He could also have declined under Regulation 3.6.14 (b) (i) on the grounds that it would not be in the interests of the Church for him to make a ruling on this question.

4. It was not in the Interests of the Church to Remove its Doctrinal Standards

It is not in the interests of the Church for it not to have any doctrinal standards: without the Basis of Union the Constitution is an empty shell with no commitment to any Christian teaching or to a source of authority for deciding any doctrinal questions, and the Assembly has not substituted any other doctrinal standards. Nor is it in the interests of the Church for the basis of its doctrinal authority to be removed from its own constitution and seen to rest in state legislation. Neither is it in the interests of the Uniting Church for the powers of the Assembly to be absolute in matters of doctrine without reference to the traditions it received from the uniting churches, or to their intentions in forming the union particularly in regard to its relationship to the one, holy catholic and apostolic church, and without reference to the other councils of the Church. While it is for the President to decide whether he should decline to rule on those grounds, the Standing Committee can still exercise its discretion not to confirm the ruling while it seeks to ensure that the interests of the Church are protected in these respects.

5. The Basis of Union has Not in Fact been Abandoned

The view appears to have been taken that the Basis of Union ceased to have any authority, at least in regard to decisions taken by the Assembly on questions of doctrine, as soon as the Constitution was adopted. I do not believe that the Sixth Assembly made its decisions on ministry with this understanding or that the Assembly has ever intended the Basis of Union to be abandoned. Indeed the Sixth Assembly authorized preparation of an inclusive language version precisely because its continuing relevance to changed circumstances was recognized. It has continued to require adherence to the Basis in the ordination vows and elsewhere. The Sixth Assembly was struggling with the implications of the understanding of ordained ministry in the Basis when in the last session it revised the definition of `ordination', changing it from what had been recommended. That any radical consequences (except perhaps for that renewed understanding of ministry which allowed the introduction of the ministry of deacon) were unintended rather than deliberate is evident from the inconsistency between the revised definitions of `minister' and `ordination'. Ministers of the Word continue to see their ministries in terms of the Basis of Union and to adhere to it.

6. It is a Breach of Trust to Abandon the Basis

Ministers and most lay members of the Assembly, the Synods and Presbyteries adhere to the Basis. They continue to expect the councils of the Church to maintain the way of life and work of the one, holy, catholic and apostolic church that is described in the Basis, which their adherence requires them to accept. By accepting ministers from the uniting churches on this condition and by continuing to impose such a requirement the Church has a corresponding obligation to act in accordance with the Basis. The large majorities which voted for the union would not have done so had they been told that as soon as the union was formed the basis on which they had agreed to enter it would be abandoned. (It is irrelevant to argue that the Basis itself envisages development, that it did not expect the faith and order of the Uniting Church to be fixed for all time by that particular formulation. Development is one thing, abandonment is something else.)

7. The Constitution implies Continuing Relevance of the Basis

The Preamble to the Constitution declares that `the union of the three churches on "The Basis of Union" has been approved and agreed upon' and it goes on to say that its understanding of responsibility for government in the Church is derived from the Basis. When the First Assembly declared that the Interim Constitution (which later became the Constitution*) was consistent with the Basis it was reasonable to expect that the Constitution would be interpreted in the light of the Basis, especially in those matters such as doctrinal standards which are not defined in the Constitution but required in the Church. Such was the expectation at that time, and the Assembly has continued to act on that assumption.

David Beswick, 24 February 1993

[*In fact no formal decision has been made to adopt the Interim Constitution as the Constitution. The word "Interim" has been dropped in the printing apparently as the result of administrative action, supported by the opinion of the Legal Reference Committee taking the view that it had been sufficiently amended to make it in effect a revised constitution not different in practical terms from a new constitution -- as conveyed to me personally by a member of Legal Reference Committee. I have no doubt that this was not what was expected at the time of union and the obligation remains for the Church to write its own Constitution consistent with the Basis and its experience since Union. That it what we were told when the vote on union was being taken, when we were told that we did not need to know what was in the Constitution as it would only be interim, while the Basis of Union would continue to apply. (See the section on The Interim Nature of the Interim Constitution in the paper on The Constitution and Basis of Union). DB November 1997]

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3. Extracts From Letters to the President on the Basis of Union

29 AUGUST 1992

As a member of the Assembly I wish to join with Gordon Watson in his request to you to rule on the validity of the Constitutional amendments proposed by the Sixth Assembly, and in particular to submit that the proposed amendment to the definition of `Minister of the Word' is invalid because it is in conflict with the Basis of Union. In regard to the question of whether the Basis of Union limits what the Assembly may do, I would ask you to take into account additional arguments presented in my letter of 27 August in which some of the same points were advanced for a different purpose.

27 AUGUST 1992

In regard to the powers of the Assembly: its power to determine questions of doctrine is not unlimited. The Uniting Church is a Christian Church whose fundamental doctrines are those of the church universal, as attested by the Basis of Union. Its Constitution is necessarily in agreement with the Basis of Union on which it was constituted by the decision of the three churches to unite. The principles of organization and authority in the Church are acknowledged in the Preamble to the Constitution to be derived from the Basis and to have authority by virtue of the adoption of the Basis by the uniting churches. The Uniting Church is not free unilaterally after union to depart from the agreed basis and members who entered it from the uniting churches, especially ministers who were required to declare specific agreement to adhere to that basis, have a legitimate interest in maintaining their rights in relation to the Basis of Union.

The position of the Basis of Union has been further reinforced by the Assembly in Regulations which require adherence to it by ordained ministers and others engaged in recognized ministries. Having imposed that requirement on at least some of its members the Church is not free to depart from it. Requiring adherence to the Basis imposes a reciprocal obligation on the councils of Church to maintain the way of life and work described in the Basis because the Basis itself defines adherence

as willingness to live and work within the faith and unity of One Holy Catholic and Apostolic Church as that way is described in this Basis.

.... it is important to recognize that there is a prior principle of catholicity which limits the powers of the Assembly to make new doctrines. I have addressed the pastoral significance of this principle in the enclosed article `Unity, Diversity and Catholicity' which is to be published next month, and I believe that as pastoral leader you have a responsibility to take such matters into account in the advice that you may give to the ASC. Insofar, however, as the Assembly is bound by the Basis of Union the ASC is both morally and legally required to maintain a commitment to catholicity.

The Uniting Church lives and works within the faith and unity of the One Holy Catholic and Apostolic church. [Basis para. 2.]

The nature of that commitment is explained at some length in the Basis of Union, and it implies that while doctrines can be changed and new developments should be expected, we have standards represented by scripture, the creeds and our membership in a worldwide fellowship of believers. The Assembly is not free to define any doctrine it wills.

.... those members of the ASC who have given an undertaking individually to adhere to the Basis of Union are not free to act otherwise.

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