Attorney-General (NSW) v Grant

[1976] HCA 38

HIGH COURT OF AUSTRALIA

Gibbs, Stephen, Mason, Jacobs and Murphy JJ.

ATTORNEY-GENERAL (N.S.W.) v. GRANT

(1976) 135 CLR 587

3 August 1976

Voluntary Associations—Trusts

Voluntary Associations—Presbyterian Church—Power to unite with other churches—Resolution to unite—Validity—Jurisdiction of court—Consensual compact between members of church—Church property held on trust for purposes of church—Presbyterian Church of Australia Act, 1900 (N.S.W.)—Presbyterian Church of Australia Act, 1971 (N.S.W.). Trusts—Property held on trust for Presbyterian Church—Power to unite with other churches—Alteration of fundamental doctrines—Effect on property trusts—Resolution to enter union—Validity—Jurisdiction of court—Presbyterian Church of Australia Act, 1900 (N.S.W.)—Presbyterian Church of Australia Act, 1971 (N.S.W.).

Decisions

August 3.
The following written judgments were delivered: -
GIBBS J. On this appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales we are required to consider the validity and effect of certain actions taken with a view to enabling the Presbyterian Church of Australia to enter into union with the Congregational Union of Australia and the Methodist Church of Australasia under the name of the Uniting Church in Australia. The decision will affect property of considerable value held in trust for the purposes of the Presbyterian Church of Australia. Although the only property directly in question is that situated in New South Wales, we are informed that the relevant legislation in other States is similar, so that our decision may affect property held in trust for the church throughout Australia. (at p591)

2. The Presbyterian Church of Australia was formed in 1901 by the union of the Presbyterian Churches of New South Wales, Victoria, Queensland, South Australia and Tasmania. At that time the Presbyterian Church of Western Australia had not been formed and the Presbyterian Church of Victoria included the Presbytery of Western Australia. Legislation was passed in the various colonies to give legal effect to the terms on which the five churches has resolved to unite. The statute passed in New South Wales was the Presbyterian Church of Australia Act, 1900. By s. I of that statute the basis of union and articles of agreement set forth in the Schedule were declared to have the full force and effect of law from and after 24th July 1901. The basis of union set out in the Schedule to that Act (which for convenience I shall call "the 1900 Basis of Union") recorded that the five churches "agree to unite on the following basis and subject to the following articles". The basis itself contained six sections. By s. I it was declared as follows: "The supreme standard of the united church shall be the Word of God contained in the Scriptures of the Old and New Testaments." Section II commenced: "The subordinate standard of the united church shall be the Westminster Confession of Faith, read in the light of the following declaratory statement: - ". There followed a statement declaratory of certain matters of doctrine. By s. VI it was provided that a formula in the form there set out (being an acknowledgment of certain doctrines and a promise to defend the doctrine, worship and government of the church) was to be signed by ministers and elders at their ordination or induction and by probationers on receiving licence. The extent to which the basis might be amended was governed by ss. III, IV and V, which read as follows:

"III. Any proposed revision or abridgment of the subordinate standard of the Church, or restatement of its doctrine, or change of the formula, shall, before being adopted, be remitted to the local assemblies, and through them to the presbyteries, and no change shall be made without the consent of a majority of the local assemblies, three-fifths of the presbyteries of the whole Church, and a majority of three-fifths of the members present when the final vote of the General Assembly is taken. IV. On any change being made in the basis of union in accordance with Section III, if any congregation thereupon refuses to acquiesce in the change and determines to adhere to the original basis of union, the General Assembly is empowered - (1) to allow such congregation to retain all its congregational property; or (2) to deal in such other way with the said property as to the assembly may seem just and equitable. V. Any proposed change in either of the two preceding Sections III and IV shall be made only under the provisions contained in Section III."

The articles of agreement provided by art. I that "There shall be a Supreme Court of the Church, which shall be called the General Assembly of the Presbyterian Church of Australia". The articles proceeded to deal with the constitution, powers and functions of the General Assembly and by art. IV provided inter alia that "The General Assembly shall have functions, legislative, administrative, and judicial; supreme with regard to the doctrine, worship, and discipline of the Church". The constitution of the new church was intended to be of a federal kind, and by art. XI it was provided that the autonomy of the local general assemblies should "not be further interfered with than is needful to give effect to the basis of union and the articles of agreement". Other articles dealt with theological training, the admission of ministers, the making of reports to the General Assembly from the local assemblies, and the formation of a fund to defray the working expenses of the General Assembly. Power to amend the articles was given by art. XIII which provided: "The articles of agreement may be altered or added to from time to time, but not without the consent of the majority of the presbyteries of the whole Church and a majority of the local assemblies." (at p592)

3. Since 24th July 1901 the Presbyterian Church of Australia has continued to function under the 1900 Basis of Union and the articles of agreement, although those instruments have been amended in certain respects, not now material, pursuant to the powers given by s. III and art. XIII respectively. Substantial property is vested in the Presbyterian Church (New South Wales) Property Trust, constituted under the Presbyterian Church (New South Wales) Property Trust Act, 1936 (N.S.W.), as amended, on trust for the Presbyterian Church of Australia in New South Wales and for associated bodies and purposes. (at p593)

4. During the last twenty years or thereabouts members of the Congregational Union of Australia, the Methodist Church of Australasia and the Presbyterian Church of Australia have been endeavouring to bring about a union between those three churches and to work out a basis upon which such union might be possible. For this purpose a Joint Commission on Church Union was set up by the three churches in 1957 and prepared a basis of union (to which I shall refer as "the Proposed Basis of Union 1971") which was in 1971 presented to the three churches for their consideration. It is said by some of those opposed to the union that the Proposed Basis of Union 1971 contains substantial departures from doctrines - including fundamental doctrines - contained in the 1900 Basis of Union. According to submissions made to us in argument on behalf of the appellants - (1) cl. 5 of the Proposed Basis of Union 1971, which deals with the position which the Uniting Church will accord to the Old and New Testaments, falls short of maintaining the Scriptures as the supreme standard of the church; (2) the Proposed Basis of Union 1971 does not maintain the Westminster Confession of Faith, read in the light of the declaratory statement contained in the 1900 Basis of Union, either in its original, or in any revised, abridged or restated form, as the subordinate standard of the Uniting Church; and (3) the Proposed Basis of Union 1971 entirely omits any requirement for the signing of a formula, contrary to an essential requirement of the 1900 Basis of Union. It is unnecessary for this Court to express any view on whether any of these criticisms is well founded, for it has been agreed that it may be assumed, although only for the purposes of the present stage of these proceedings, that the Proposed Basis of Union 1971 does involve a departure from Presbyterian doctrine heretofore regarded as fundamental. (at p593)

5. The Proposed Basis of Union 1971 has been considered by the three churches interested, but we are not now concerned with the steps taken by the Congregational Union of Australia and the Methodist Church of Australasia with a view to entering into the union. We are concerned only with the position of the Presbyterian Church of Australia. (at p593)

6. The 1900 Basis of Union gave the Presbyterian Church of Australia no power - at least no express power - to enter into union with any other church. However, such a power was conferred by the Presbyterian Church of Australia Act, 1971 (N.S.W.) ("the 1971 Act"), a statute since amended by the Presbyterian Church of Australia (Amendment) Act, 1972 (N.S.W.). These Acts provided a new basis of union subject to which the property held by or in trust for the Presbyterian Church of Australia in New South Wales is to be held. This new basis of union, which is set out in the Schedule to the 1971 Act, is comprised of three parts - Pt I headed "Constitution", Pt II headed "Government" and Pt III headed "Union With Other Churches". It appears that the conditions prescribed by the 1971 Act for bringing into effect the whole of the new basis of union were in fact complied with, but it was not desired that Pts I and II should take effect immediately, and the Amendment Act of 1972 was passed to prevent those Parts from coming into operation. It is agreed that Pts I and II are not at present in force. However, s. 4(2) of the 1971 Act (as amended) provides as follows:

"All interests in property that, immediately before the third day of December, one thousand nine hundred and seventy-one, were held by or in trust for some or all of the purposes of the Presbyterian Church of Australia in New South Wales or the General Assembly therof or any presbytery, session, board or committee of management, congregation, committee, council, board or fund in connection with the Presbyterian Church of Australia in New South Wales shall be so held and shall be deemed to have been on and from that day so held subject to Part III of the new basis of union."

It is not disputed and seems clear that the effect of this section is that property held in trust for any purpose of the Presbyterian Church of Australia, or any associated body or fund, is now held subject to the 1900 Basis of Union and to Pt III of the new basis of union contained in the Schedule to the 1971 Act. (at p594)

7. The critical provisions of Pt III are those of s. 15 which provides as follows:

"The general assembly shall have the right and power to negotiate with other branches of the Christian church with a view to the Presbyterian Church of Australia entering the union with any of them, and the Presbyterian Church of Australia may pursuant to a resolution of the general assembly enter into such union provided that the proposed basis of union with any such church or churches (which shall include a section setting out basic principles of constitutional structure and practice) shall first be remitted to synods and presbyteries under the Barrier Act procedure and may be approved by the general assembly only when approved by a majority of synods and at least three-fifths of the presbyteries of the whole church and three-fifths of the members present when the final vote of the general assembly is taken."

By s. 4(3)(b) of the 1971 Act the reference to "synods" in Pt III is a reference to State General Assemblies or, if so required by the context, to State Presbyterian Churches. The Barrier Act mentioned in s. 15 was an Act passed by the General Assembly of the Church of Scotland on 8th January 1697 with a view to preventing rash and ill-considered alterations of the doctrine, worship, discipline or government of the church. It is set out in full in the report of General Assembly of Free Church of Scotland v. Lord Overtoun (1904) AC 515, at pp 736-737 . It provided that "before any General Assembly of this Church shall pass any Acts, which are to be binding Rules and Constitutions to the Church, the same Acts be first proposed as overtures to the Assembly, and, being by them passed as such, be remitted to the consideration of the several Presbyteries of this Church, and their opinions and consent reported by their Commissioners to the next General Assembly following, who may then pass the same in Acts, if the more general opinion of the Church, thus had, agreed thereunto". (at p595)

8. Section 16 of Pt III provides as follows:

"Before the final vote is taken in the general assembly communicants aged sixteen years and over whose names are on the roll of a congregation shall be given an opportunity to answer the following questions: - (a) Do you desire this congregation to become a congregation of the church which may result from the proposed union?

(b) Should the required majority vote for union be obtained in presbyteries, synods and the general assembly of Australia do you desire to remain in membership of any Presbyterian Church of Australia continuing to function on the present basis?"

(at p595)

9. Section 17 provides as follows:

"(1) For the purpose of enabling communicants to vote upon the questions prescribed in the last preceding section the general assembly shall prescribe a date by which all sessions shall be required to have purged their communion rolls and to have submitted to the presbytery of the bounds a voting register in duplicate consisting of all eligible names on the communion roll at the date of submission to the presbytery. (2) Both copies of the said voting register shall be certified by the moderator and clerk of the session as being the voting register. (3) The presbytery of the bounds shall at the earliest opportunity following the submission to it of the voting register attest both copies and shall return one copy to the session from which it was received and shall retain the other copy. (4) Only those persons whose names are on an attested voting register may take part in the vote. (5) Sessions shall make available voting papers containing the said questions at least fourteen days before a date to be prescribed by the session for the close of voting, upon which the voters shall indicate whether their answer is 'Yes' or 'No' to each of the questions. (6) Voting papers must be signed by the voter and returned prior to the close of voting. (7) The session shall count votes and transmit the number of 'Yes' votes and the number of 'No' votes cast with respect of each question to the clerk of the presbytery of the bounds for transmission to the clerk of the general assembly through the clerk of synod. (8) The clerk of the general assembly shall advise the commission to be appointed as hereinafter provided of the results."

Section 18 requires the General Assembly, if it resolves to enter a union pursuant to s. 15, to provide just and equitable safeguards of the rights of minorities who do not concur in the decision to unite. Those safeguards include the setting up of a commission under an independent chairman with considerable powers in relation to church property. It is unnecessary to discuss the powers of the commission, but it is necessary to refer to the provisions of s. 18(b) which are as follows:

"In any case where at least one third of the communicants of a congregation who participate in the vote in accordance with the last preceding section (hereinafter called 'a continuing congregation'), shall prior to the date of the final vote of the general assembly approving such union have recorded votes indicating their desire to continue in membership of the Presbyterian Church of Australia, such communicants shall not become a congregation of the church to result from the union but shall be recognized as a congregation of the Presbyterian Church of Australia continuing to function on this basis of union and shall be entitled to retain the congregational property, unless the commission appointed pursuant to this section shall for special reasons otherwise determine, in which case the said commission is required to ensure that what it deems to be adequate and suitable congregational property is provided including a due and proper share of any congregational endowments." (at p597)

10. On 15th December 1971 the General Assembly of the Presbyterian Church of Australia set in train the procedure prescribed by s. 15 of Pt III. On that date it was resolved to receive the Proposed Basis of Union 1971 from the Joint Commission on Church Union and to remit to State General Assemblies and Presbyteries under Barrier Act procedures the Proposed Basis of Union 1971, returns to be in the hands of the Clerk of Assembly not later than 30th October 1972. The General Assembly also resolved to require all sessions to purge their communion rolls, and to give such other directions as were necessary to enable a vote of communicants to be taken under s. 16. The report on the "remit" under s. 15, and on the vote of communicants under s. 16, was received by the General Assembly on 3rd May 1973. The report indicated that all State Assemblies and forty Presbyteries had approved the remit and that thirteen Presbyteries had disapproved. The result of the vote of communicants was that 75.74 per cent of communicants returned an affirmative answer to question (a) whereas 39.17 per cent returned an affirmative answer to question (b). After considering this report the General Assembly, by more than a three-fifths majority, approved the Proposed Basis of Union 1971. (at p597)

11. There was, however, an apparent inconsistency in the answers to these questions. Although only 24.26 per cent of the voters opposed their congregations becoming congregations of the Uniting Church, 39.17 per cent voted to remain in the continuing Presbyterian Church should the required majority vote for union be obtained. Thus 14.91 per cent favoured union, but did not themselves wish to join the Uniting Church. The effect of this voting was that in the event of union 694 congregations throughout Australia would become congregations of the Uniting Church but 728 would remain in the continuing church; for the State of New South Wales these numbers were respectively 102 and 249. On 4th May 1973, after further debate on the question of Church Union, the General Assembly resolved as follows:

"That the Assembly: 1. Recognising the difficulty of interpreting the communicants' vote, resolve not to proceed into union pursuant to the procedures initiated by the Assembly of December 1971.

2. Remit to State General Assemblies and presbyteries under Barrier Act procedures the Proposed Basis of Union 1971, returns to be in the hands of the Clerk of Assembly not later than 30th October, 1973."

It was further resolved that the necessary steps be taken to have another vote of communicants under ss. 16 and 17 of Pt III. (at p598)

12. The next General Assembly met on 1st May 1974, and on that day the report on the second remit and the second vote of communicants was considered. The result of this remit was that the Assemblies of Queensland, South Australia, Tasmania, Victoria and Western Australia approved the remit but the Assembly of New South Wales disapproved. Forty-two Presbyteries approved and eleven did not. The result of the vote of communicants was that 72.02 per cent returned an affirmative answer to question (a) and 31.32 per cent returned an affirmative answer to question (b). The effect of this vote was that in the event of union the number of uniting congregations would be 916 for the whole of Australia and the number of continuing congregations would be 521; for New South Wales the figures were respectively 155 and 184. The General Assembly then, by a majority exceeding three-fifths, again approved the Proposed Basis of Union 1971. It further resolved, subject to certain provisos that it is unnecessary to mention, to enter into union with the other churches. The General Assembly then appointed the members of the commission required to be set up under s. 18, and appointed Mr. Kenneth Robert Handley Q.C. to be chairman of the commission. (at p598)

13. The present proceedings were commenced by summons in the Supreme Court of New South Wales. The plaintiff is the Attorney-General acting on the relation of two members of the General Assembly opposed to the union. The first defendant, the Reverend Archibald Wesley Grant, has been appointed to represent those members of the Assembly who voted in favour of the Proposed Basis of Union 1971 and in favour of the Presbyterian Church of Australia entering into union with the other churches. The second defendant is the Presbyterian Church (New South Wales) Property Trust and the third defendant is Mr. Handley. The parties to the proceedings agreed upon a statement of facts and four questions of law were stated for the determination of the Supreme Court. Those questions, as amended, are as follows:

"1. Whether, upon the assumption that a departure from

heretofore Presbyterian fundamental doctrine is involved in the proposed Basis of Union 1971 of the Uniting Church, the resolution of 1st May 1974 of the Thirty-Fifth General Assembly of the Presbyterian Church of Australia approving such Basis of Union (set forth in Minutes 16 and 17 of the Proceedings of the said Assembly) was nevertheless a valid exercise of any power conferred upon that Assembly by Section 15 of the Schedule to Act 42 of 1971?

2. Whether, subject to any issue arising upon the assumption set out in question 1, the resolution of 1st May 1974 of the said General Assembly in favour of the Presbyterian Church of Australia entering into union with the Methodist Church of Australasia and the Congregational Union of Australia (set forth in Minute 43 of the Proceedings of the said Assembly) was a valid exercise of any such power?

3. If the answer to either question 1 or 2 is No, whether the resolution of 1st May 1974 of the said General Assembly (set forth in Minute 43 of the Proceedings of the said Assembly) purporting to appoint a Commission pursuant to Section 18 of the Schedule to the said Act was a valid exercise of any power under that Section?

4. Whether the result of the second vote of communicants referred to in paragraphs 11 and 12 of the Statement of Agreed Facts has any legal consequence for any purpose connected with the application of Section 18 of the Schedule to Act 42 of 1971?"

It was thereupon ordered that those questions of law should be decided separately from any other question which may arise and that the proceedings be removed into the Court of Appeal. The matter was argued before the learned judges of the Court of Appeal who held that the resolutions of the General Assembly of 1st May 1974 to approve the Proposed Basis of Union 1971 and to enter into the union were valid and effective and that the summons should be dismissed. It was not thought necessary to return specific answers to the four questions stated. From that decision the plaintiff has appealed to this Court. (at p599)

14. The submission on behalf of the appellant that the resolutions of 1st May 1974 were invalid was supported on two broad grounds. In the first place it was said that the Presbyterian Church of Australia has no power to enter into union with other churches except on a basis that preserves the identity of its essential doctrine; there was accordingly no power to approve the Proposed Basis of Union 1971, or to enter into a union with the other churches upon that proposed basis, if, as is assumed for present purposes, that proposed basis departs from some of the fundamental doctrine entrenched in the 1900 Basis of Union. Secondly, it was argued that the resolution to enter into union was not passed in conformity with the procedure laid down by Pt III of the new basis of union contained in the Schedule to the 1971 Act. According to this argument Pt III permits only one vote of communicants to be taken before a proposed basis of union is approved, and since such a vote had been taken before the Proposed Basis of Union 1971 was approved on 3rd May 1973 it was not permissible, at least while the resolution of that date had not been rescinded, to take the second vote, and the General Assembly was wrong in giving any weight to the results of the second vote, or in failing to consider the results of the first vote, in deciding whether to enter into union. As an alternative to the second of these arguments it was submitted that if the resolution for the entry into union was valid, the vote recorded on the first poll and not that recorded on the second poll was relevant for all purposes under s. 18 of Pt III. (at p600)

15. It hardly needs to be said that in this country the law recognizes a complete freedom of conscience in matters of religion. No one is compelled to adhere to, or to abjure, any particular religious opinions. Any member of a church is perfectly free to leave that church and join another which professes different beliefs and has a different mode of government. No court may prevent a citizen from abandoning religious beliefs, previously thought to be fundamental, and embracing a new and essentially different faith. But there are various ways in which the courts necessarily acquire jurisdiction to determine disputes between members of a religious congregation. A church in Australia is a voluntary organization of members bound together not only by common beliefs, but in some cases at least, by a consensual compact, which may confer rights and impose liabilities on the parties to it: cf. Macqueen v. Frackelton (1909) 8 CLR 673, at pp 679, 696, 704-705 . Moreover, if property is held on trust for a church questions may arise as to what persons are entitled to the trust property and for what purposes it must be applied. Where a schism has developed as the result of the decision of some members of a church to enter into union with another church, the question may arise whether the trust property is thereafter to be held for those who become members of the new united church or for those, however few, who remain in the original association. (at p600)

16. The leading case in which questions of this kind were considered is General Assembly of Free Church of Scotland v. Lord Overtoun (1904) AC 515 . In view of the importance attached to that decision in the argument of the appellant it is necessary to discuss it in a little detail. Two appeals heard together by the House of Lords arose out of a union between two Presbyterian Churches, the Free Church of Scotland and the United Presbyterian Church, under the name of the United Free Church of Scotland. The first appeal concerned rival claims to the general property of the Free Church which was held for behoof of that church by its general trustees. After the union the United Free Church claimed to be the successor to the Free Church and to be entitled to all its property, but a small minority of the members of the Free Church, who opposed the union and refused to join the new church, claimed that they lawfully represented the Free Church and were entitled to have the property applied on their behalf. Alternatively they claimed a proportion of the property. The House held that the minority were entitled to the whole of the general property of the Free Church. Put shortly, the grounds of this decision were as follows. The property was held on trust for the maintenance and support of the Free Church. That church was an association of Christians united by common beliefs and it was therefore necessary to decide "what were the religious tenets and principles which formed the bond of union of the association for whose benefit the trust was created" (per Lord Davey (1904) AC, at p 645 ). The majority of the House held that the establishment principle - that it is the duty of the State to support and maintain religion - was a fundamental principle of the Free Church and some of the majority further held that the unqualified acceptance of the Westminster Confession of Faith was also a fundamental doctrine of that church. On the other hand, the United Presbyterian Church was opposed to the establishment principle and did not maintain the Westminster Confession of Faith in its entirety. The act of union between the Free Church and the United Presbyterian Church left it free to members of the United Free Church to hold their own opinions on these matters as they pleased. In these circumstances their Lordships considered that the majority of the members of the Free Church, in entering into the union, had abandoned fundamental principles for which the Free Church was associated whereas the minority continued to adhere to those principles. However, it was contended that the Free Church had power to change its doctrines either because such a power was conferred by the Barrier Act or because any church has an inherent power to do so. These arguments were rejected by their Lordships. We are not now concerned to discuss the argument based on the Barrier Act. In relation to the question whether a church has an inherent power to alter its doctrines, the Earl of Halsbury L.C. said (1904) AC, at p 626 :

"... I do not suppose that anybody will dispute the right of any man, or any collection of men, to change their religious beliefs according to their own consciences; but when men subscribe money for a particular object and leave it behind them for the promotion of that object, their successors have no right to change the object endowed."

Those remarks, which were sufficient for the purposes of that appeal, must, however, be read subject to a qualification which appears clearly in the judgment of Lord Davey which, in my respectful opinion, fully and accurately states the law on this point. Lord Davey said (1904) AC, at p 645 :

"I do not think that the Court has any test or touchstone by which it can pronounce that any tenet forming part of the body of doctrine professed by the association is not vital, essential, or fundamental, unless the parties have themselves declared it not to be so. The bond of union, however, may contain within itself a power in some recognised body to control, alter, or modify the tenets and principles at one time professed by the association. But the existence of such a power would have to be proved like any other tenet or principle of the association."

This passage from the judgment of Lord Davey is not inconsistent with anything said by other members of the House. The Earl of Halsbury L.C. himself appears to have recognized, elsewhere in his judgment, that the basic instrument may contain a power to alter doctrine, for he cited (1904) AC, at pp 613-614 a passage from the judgment of Lord Eldon in Craigdallie v. Aikman (1813) 1 Dow 1, at p 16 (3 ER 601, at p 606) which contained the words, "if the instrument provided for the case of a schism, then the Court would act upon it". The manner in which other members of the House discussed the model trust deed, the subject of the second appeal, shows that if they had thought that it conferred such a power, it would have been effective. The second appeal related to buildings held for particular congregations of the Free Church on trust deeds in the form of a document called the model trust deed, and it was argued that the terms of that deed showed that it was contemplated that the Free Church might unite with other churches which professed fundamentally different doctrines. The deed is set out in the report (1904) AC, at pp 743-748 . It contained a trust in favour of the congregations "of the said body of Christians called the Free Church of Scotland, or of any united body of Christians composed of them, and of such other body or bodies of Christians as the said Free Church of Scotland may at any time hereafter associate with themselves" (1904) AC, at p 746 . There were other references in the deed to a united body composed of members of the Free Church and other Christians. It was held that the deed did not empower the Free Church to enter into a union with another church which professed fundamentally different doctrine. Lord Davey said (1904) AC, at p 654 : "I think, therefore, that the union here contemplated must be taken to be one with other Churches which might properly be made without detriment to the distinctive tenets of the Free Church." Lord James expressed the view that even if the deed had contained no reference to union with other churches that power would in any case have existed but he went on to say (1904) AC, at p 665 :

"The Church may unite, and so says the model trust deed, but if property is sought to be transferred to the new body the identity of that new body - that is the Free Church - after the union must be maintained; and nothing in the deed gives a power to unite so as to bring into existence a Church incapable of identity with the Free Church."

Lord Robertson spoke of the deed as "a conveyancer's instrument", whose clauses about union apply "only to such unions as were competent to the Free Church" (1904) AC, at p 690 . Lord Alverstone C.J. expressed similar views (1904) AC, at pp 717-719 . (at p603)

17. It is clear in the light of the decision in General Assembly of Free Church of Scotland v. Lord Overtoun (1904) AC 515 that if the basis on which the members of the Presbyterian Church of Australia are associated contains a power to enter into union with other churches, and for that purpose to alter or modify the doctrines of the church, including fundamental doctrines, and the Presbyterian Church of Australia in pursuance of that power does alter or modify its doctrines and enter into a union, existing trusts in favour of the Presbyterian Church of Australia will enure in favour of the new united church. On the other hand, a mere power to enter into union will not in itself give power to effect an alteration of fundamental doctrine. (at p603)

18. It then becomes necessary to consider whether the 1900 Basis of Union, and Pt III of the new basis of union contained in the Schedule to the 1971 Act, confer any power to alter the fundamental doctrines of the church. Part III gives the Presbyterian Church of Australia power to enter into union with other branches of the Christian Church. But it goes much further than that. It gives power to approve of a proposed basis of union in accordance with a detailed and elaborate procedure, and it makes careful provision for the protection of minorities who do not concur in the decision to unite. The expression "basis of union" has for many years been used, at least in connexion with Presbyterian Churches, to refer to a formal statement of the fundamental doctrines which uniting churches agree to profess. The basis of the union of the two churches which in 1847 joined to form the United Presbyterian Church is set out in the report of General Assembly of Free Church of Scotland v. Lord Overtoun (1904) AC, at p 752 (see also (1904) AC, at p 538 ), and it deals with fundamental doctrine. The provisions of the 1900 Basis of Union have already been mentioned in detail; they declare the standards of the church - the sources of all its doctrines which are either essential or of importance. On the other hand, the organization of the church - its government, the training of its ministers and its finances - are dealt with not in the 1900 Basis of Union but in the articles of agreement. The new basis of union contained in the Schedule to the 1971 Act also declares (in Pt I) the standards of the church - in the sense mentioned - and by Pt II deals in addition with the government of the church. Section 7 of Pt I refers to any "proposed change in the basis of union (including amendment or replacement of the subordinate standard or the declaratory statement) or restatement of the doctrine of the Church contained therein". In this context and with this historical background it cannot be doubted that the "proposed basis of union" to which s. 15 refers is an instrument which will state, directly or by reference, the essential doctrines upon the basis of which the new church union is proposed. The fact that s. 15 requires the proposed basis of union to include "a section setting out basic principles of constitutional structure and practice" supports this conclusion. Those words indicate that, if it had not been for this express requirement, a proposed basis of union would not necessarily have included provisions dealing with matters of practice and government, and if the basis of union of a number of Christian churches does not deal with the constitution of the new uniting body the only remaining subject with which it can deal, if it is to provide any basis of union, is the doctrine which will give the new church its identity. The framers of s. 15 obviously considered that the use of the words "proposed basis of union", without more, was enough to refer to a statement of essential doctrine, but might not necessarily have included a reference to provisions setting out the basic principles of constitutional structure and practice of the new association, and intended that both doctrine and constitutional structure and practice should be dealt with in the proposed basis of union. If the power to approve of a proposed basis of union did not include a power to alter the existing fundamental doctrines of the church it would add nothing to the power to enter into union. For these reasons I consider that the words "basis of union" in s. 15 connote an instrument which indicates the fundamental beliefs that will form the foundation of the uniting churches, and that therefore a power to approve of a proposed basis of union necessarily includes the power to determine what doctrines will be fundamental to the new union and for that purpose to depart from a doctrine which one of the uniting churches treated as fundamental. A number of other considerations support this view. The requirement that the proposed basis of union should be remitted under the Barrier Act procedure, and should only be approved by the special majorities mentioned in s. 15, itself suggests that it was thought that the proposed basis of union would lay down matters of doctrine - the section in this respect is modelled on s. III of the 1900 Basis of Union rather than on art. XIII of the articles of agreement. Moreover, if the Presbyterian Church of Australia had been empowered to enter into a union only on terms which preserved the identity of its essential doctrine, the trusts in favour of that church would, after such a union, have enured in favour of the new association, and it would hardly have seemed necessary to protect the interests of minorities in the manner for which s. 18 provides. Further, as has already been mentioned, at the time when the 1971 Act was passed the Congregational Union of Australia, the Methodist Church of Australasia and the Presbyterian Church of Australia had for some years been examining the possibility of entering into union, and if the provisions of s. 15 were ambiguous this circumstance could properly be considered in resolving the ambiguity, and it would of course point towards the construction which I have accepted as correct, for it was not to be supposed that a union between those three churches would necessarily have been made on the basis that every essential doctrine of the Presbyterian Church of Australia would be preserved as the foundation of the union; indeed the Proposed Basis of Union 1971 had already been presented by the Joint Commission. (at p605)

19. The argument advanced on behalf of the appellant started with the proposition that neither the 1900 Basis of Union nor the articles of agreement contained any power to alter fundamental doctrine. Article IV gave the General Assembly supreme powers with regard to the doctrine of the church, but it was submitted that the limits within which that power might be exercised were marked out by s. III of the 1900 Basis of Union. Section III contained nothing to suggest that it was possible to displace the Scriptures as the supreme standard of the church but it did envisage "a revision or abridgment of the subordinate standard of the Church, or restatement of its doctrine". It was submitted that the subordinate standard referred to was that of the Westminster Confession itself and that there was no power to revise, abridge or restate the doctrine of the declaratory statement contained in s. III. Alternatively it was said that a power to revise, abridge or restate does not extend to making a change in essential doctrine. Further it was submitted that the power to change the formula contained in s. VI did not permit the church to abandon completely the use of any formula. It is unnecessary to decide whether these submissions are correct. It may be assumed, for the purposes of argument, that under the 1900 Basis of Union and articles of agreement there was no power to alter fundamental doctrine or to abandon the use of a formula. (at p606)

20. The next step in the appellant's argument is that the provisions of Pt III of the new basis of union contained in the Schedule to the 1971 Act must be read consistently with the provisions of the 1900 Basis of Union, since these two sets of provisions are intended to form one harmonious instrument. Then, the argument proceeded, the trusts on which the church property is held are declared by the 1900 Basis of Union; on the other hand, the provisions of Pt III grant powers which should be regarded as merely subsidiary to the objects of those trusts. One of the powers given by s. 15 of Pt III is to take the Presbyterian Church of Australia into union, and it is said that this means that the church to be taken into union is the existing church, which only preserves its identity if it adheres to its essential doctrine. For these reasons it was submitted that the power given by Pt III to approve of a proposed basis of union did not enable the General Assembly to effect any change of doctrine, except such a change as was already permissible under the 1900 Basis of Union. (at p606)

21. These submissions cannot be accepted. The effect of s. 4(2) of the 1971 Act is that if there is any conflict between the provisions of the 1900 Basis of Union and those of Pt III of the new basis of union contained in the Schedule to the 1971 Act the latter must prevail for the purpose of determining the trusts on which the property of the Presbyterian Church of Australia, and of its associated bodies and funds, is held. The statement in s. 4(2) that the property is to be held "subject to Part III" can only mean that the trusts declared by the 1900 Basis of Union are subject to the later provisions. It is not possible to regard the provisions of Pt III as merely ancillary to those of the 1900 Basis of Union. In any case the powers to enter into union and to approve of a proposed basis of union are different in kind from powers given to trustees for the purposes of the trust, such as powers to sell or mortgage the trust property. The powers given by Pt III, as I have already indicated, are in terms wide enough to extend to the approval of a proposed basis of union which effects fundamental changes of doctrine and which to that extent may be inconsistent with the 1900 Basis of Union, and these powers are not to be limited by treating Pt III as subordinate or merely ancillary to the 1900 Basis of Union, when the statute expressly indicates that the contrary is the intention. It is true to say that it is the Presbyterian Church of Australia as presently constituted that is to be taken into any union, but it does not follow that it is intended that the church should retain its identity once union has been effected; on the contrary, it is because it may lose its identity that it is necessary to provide that its property will be held subject to Pt III. It is hardly necessary to add that because the power granted by s. 15 was to enter into union with other branches of the Christian Church a proposed basis of union could not depart entirely from the doctrines of Christianity. It has of course not been suggested in the present case that the Proposed Basis of Union 1971 declares doctrine other than Christian doctrine. (at p607)

22. A further argument on behalf of the appellant was that the taking of the formulary oath itself bound the consciences of those who took it to adhere to the existing doctrines of the church. It is apparent that many sincere members of the church would not accept that argument, but it is not a matter which we need to discuss; our concern is with matters of law, and not with matters of individual faith and conscience. (at p607)

23. For the reasons given I hold that the General Assembly had power under s. 15 to approve of the Proposed Basis of Union 1971, provided that the procedure laid down by Pt III had been observed. It must then be considered whether there was a failure to observe that procedure, by reason of the fact that the General Assembly held a second vote of communicants and took the result of that vote into consideration in resolving to approve of the Proposed Basis of Union 1971. (at p607)

24. If the words of Pt III are construed literally, and are not read as subject to a condition which they do not themselves state, it is clear that the procedure which they lay down was completely observed. The words "the final vote" in s. 15 plainly enough refer to the final vote on the question whether the proposed basis of union should be approved, rather than to the vote to enter into union. The final vote to approve the Proposed Basis of Union 1971 was taken in the General Assembly on 1st May 1974. It was approved by more than three-fifths of the members present. The Proposed Basis of Union 1971 had previously been remitted to State General Assemblies and presbyteries under the Barrier Act procedure and had been approved by a majority of State Assemblies and at least three-fifths of presbyteries. Before the final vote was taken communicants had been given an opportunity to answer the questions set out in s. 16 and to enable this to be done the General Assembly had, on 4th May 1973, initiated the procedure prescribed by s. 17 which had thereafter been followed. Everything required to be done by ss. 15, 16 and 17 of Pt III had been done. But the appellant submits that because an earlier vote of communicants had been taken pursuant to the resolution of 15th December 1971 the final vote of the Assembly was invalid. It was rightly said that the result of such a vote must have been regarded by the framers of Pt III as of importance for the purposes of the deliberations of the General Assembly, as well as in the determination of the disposition of property under s. 18. It was submitted that once the General Assembly had approved of a proposed basis of union, the rights of minorities were to be determined by reference to the vote taken before that approval was given, and that it was not competent to the General Assembly to take another vote, at least without rescinding the approval already given. In support of this argument reliance was placed on the word "first" which appears in s. 15 and on the fact that s. 17 provides a procedure for taking one vote and not a succession of votes. It was further submitted that s. 15 envisages that the questions whether a proposed basis of union should be approved and whether the church should enter into union should be considered more or less contemporaneously. As to this submission it may be said at once that although in fact in the present case both these questions were considered on the same day there is no indication in Pt III of any intention that the two questions should be considered contemporaneously, and even if such an intention did appear this would not seem to advance the argument that there was no power to take a second vote. (at p608)

25. The fact that s. 17 is expressed in the singular affords no support to the view that only one vote may be taken. Section 17 deals with the method of arranging and conducting any vote, and is naturally expressed in the singular, because in relation to any one vote any procedure required is to take place only once, e.g. only one date is to be prescribed for the purging of the communion rolls and for the close of voting respectively. The requirement in s. 15 that the proposed basis of union shall "first" be remitted means only that this shall be done before the proposed basis of union is approved, and does not suggest that a remit may only be made once. Of course it is right to say that s. 18(b) refers to one particular vote of communicants taken "prior to the date of the final vote of the general assembly approving such union" but it does not follow that only one vote may be taken. It is the vote held "before the final vote is taken" in the General Assembly approving the proposed basis of union that is material, and if more than one vote of communicants has been taken before that time there is no difficulty in reaching the conclusion that it is the latest vote - the vote immediately preceding the final vote in the General Assembly - that matters. (at p609)

26. The consequences of construing s. 15 as permitting only one vote to be held before any particular basis of union is approved would in some possible situations render the provisions of Pt III unworkable. If a vote of communicants indicated strong opposition to a proposed union, and in consequence a resolution to approve the proposed basis of union was defeated in the General Assembly, it would be impossible subsequently ever to take another vote of communicants before again approving that proposed basis of union, even if, after a lapse of time, there was a change of opinion within the church and overwhelming support for union upon that basis. Similarly, if after a vote of communicants had been taken the General Assembly approved a proposed basis of union, but no union came about because the other church concerned decided not to enter into it, and if subsequently the other church repented of its decision and renewed attempts to bring about a union, it would not be possible to take another vote of communicants and again approve the basis of union. The appellant suggested that it might be possible to take a second vote if the approval of a proposed basis of union had first been formally rescinded, but it is difficult to see any reason why the rescission of an approval should make any difference if the appellant's argument is correct; no such rescission could alter the fact that the earlier vote had been taken. If the provisions of Pt III are ambiguous the inconvenient results that would follow from adopting the construction suggested by the appellant might properly provide a reason for rejecting that construction. (at p610)

27. In my opinion, however, Pt III on its proper construction is not ambiguous and does not have the effect suggested by the appellant. The power to enter into union may only validly be exercised if the procedure laid down in the provisions of Pt III is followed but it is not permissible to import further requirements not contained in the provisions themselves. According to the expressed will of the Legislature, if the General Assembly has by a three-fifths majority voted to approve of a proposed basis of union that approval will be valid if, before the final vote was taken, (1) the proposed basis of union had been remitted to State Assemblies and presbyteries under the Barrier Act procedure and approved by a majority of Assemblies and at least three-fifths of the presbyteries of the whole church, and (2) a vote of communicants had been taken in accordance with ss. 16 and 17. Provided that these things were done it does not matter that other things may have been done in addition, and in particular it is immaterial whether earlier remits had been made or earlier votes had been taken. The appellant's argument seeks to read into Pt III a requirement which its provisions do not contain. (at p610)

28. It was further suggested that the resolutions passed on 4th May 1973 offended against Standing Order 83 of the Standing Orders of the General Assembly which is in the following terms:

"No question which has been decided at one sederunt of a court can be reconsidered at a subsequent sederunt during the same session."

At its third sederunt on 3rd May 1973 the General Assembly had decided to approve the Proposed Basis of Union 1971; at its fourth sederunt on 4th May 1973, during the same session, the General Assembly had resolved not to proceed into union, but to remit the Proposed Basis of Union 1971 again under the Barrier Act procedure, and to take another vote of communicants. The question decided at the third sederunt in these circumstances was not reconsidered at the fourth sederunt. There was no reconsideration of the question whether the Proposed Basis of Union 1971 should be approved; that question fell for consideration again at a later session, in 1974. But even if Standing Order 83 had been infringed and the resolutions passed on 4th May 1973 had been irregular, or even void, the remit in fact occurred and the communicants in fact cast their votes, so that the conditions of the exercise of the power given by s. 15 were in fact fulfilled. (at p610)

29. For the reasons that I have given I consider that the Presbyterian Church of Australia had power to approve the Proposed Basis of Union 1971 and that it observed the prescribed statutory procedure in doing so. The challenge that has been brought to the resolutions of 1st May 1974 accordingly fails. I would dismiss the appeal but consider that it would be convenient to add to the orders made by the Court of Appeal a further order that the questions stated for the determination of the Court should be answered as follows: Question 1. Yes. Question 2. Yes. Question 3. Unnecessary to answer. Question 4. Yes. (at p611)

30. The Presbyterian Church (New South Wales) Property Trust has given notice of cross-appeal from so much of the order of the Court of Appeal as ordered that the Trust should pay the costs of the relator, including the costs paid by the relator to the first defendant. It was conceded that the Court had a discretion to make the order that it did, but it was urged that the discretion had been wrongly exercised. The principles by which an appellate court is governed on an appeal from an exercise of discretion are familiar, and are stated for example in House v. The King (1936) 55 CLR 499, at pp 504-505 . It might be enough to say that, within those principles, no ground whatever has been made out for interfering with the exercise by the Court of Appeal of its discretion. However, it may be added that the case is one in which the destination of trust property of considerable value depended on the proper construction of statutory provisions whose meaning was at least open to argument, that if these proceedings had not been instituted it would have been prudent for the Trust to seek the guidance of the Court, and that it appears that when the matter was before the Court of Appeal the order for costs made by that Court was not opposed by the legal representative of the Trust. The cross-appeal should be dismissed. (at p611)

31. I would dismiss the appeal with costs but would answer the questions stated as I have indicated above, and would dismiss the cross-appeal with costs. (at p611)

STEPHEN J. I am in entire agreement with the reasons for judgment prepared by Gibbs J. I would dismiss this appeal and make the orders which his Honour proposes. (at p611)

MASON J. I have had the advantage of reading the reasons for judgment prepared by Gibbs J. with which I agree. (at p612)

2. Accordingly I would dismiss the appeal and I would make the orders proposed by his Honour. (at p612)

JACOBS J. I agree with the orders proposed by Gibbs J. and with his reasons. (at p612)

MURPHY J. This appeal concerns the validity of actions taken to unite the Presbyterian Church of Australia with the Congregational Union of Australia and the Methodist Church of Australasia into the Uniting Church of Australia. (at p612)

2. The proposed union affects the affairs and property of the Presbyterian Church throughout Australia. The Church's legal status is complicated. It has sought statutory recognition and therefore has problems (because of the federal system of Australian government) similar to those affecting the trade union movement (see Moore v. Doyle (1969) 15 FLR 59 ; "Report of the Committee of Inquiry on Co-ordinated Industrial Organisations", 1974). Its legal personality (or personalities) is recognized by acts of the State Parliaments and Ordinances of the Territories in references to the Presbyterian Church of Australia and the State Presbyterian Churches (cf. Bonsor v. Musicians' Union (1956) AC 104 ). (at p612)

3. The State Acts and the Territorial Ordinances (e.g. Presbyterian Church (Proposals for Union with Other Churches) Ordinance 1972 (A.C.T.)) which express a power to unite (subject to limitations on the destination of church property) involve the States and the Commonwealth in religious affairs. (at p612)

4. In applying common law and equitable principles in Australia to church property litigation, courts should not decide questions of doctrine, practice or procedure in ecclesiastical government. This would exceed the judicial sphere and interfere with religious freedom. Judicial determination of religious doctrine and practice is as much state interference in religious affairs as legislative and administrative measures are. The involvement of the United Kingdom courts in religious affairs is historically connected with government involvement in religious affairs. In my opinion, courts in Australia should not follow United Kingdom courts in this respect. (at p612)

5. The approach in Watson v. Jones (1871) 13 Wall 679 (20 Law Ed 666) (decided by the Supreme Court of the United States on non-constitutional grounds) is correct and applicable. The Court there said (1871) 13 Wall, at pp 728-729; (20 Law Ed, at pp 676-677) :

"The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect ... All who unite themselves to such a body" (the general church) "do so with an implied consent to" (its) "government, and are bound to submit to it. But it would be a vain consent and would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them" (sic) "reversed. It is of the essence of these religious unions, and of their right to establish tribunals for the decision of questions arising among themselves, that those decisions should be binding in all cases of ecclesiastical cognizance, subject only to such appeals as the organism itself provides for."

As the Supreme Court later said of this passage,

"The logic of this language leaves the civil courts no role in determining ecclesiastical questions in the process of resolving property disputes." (Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969) 393 US 440, at p 447 (21 Law Ed 2d 658, at p 664) .)

and further,

"The opinion radiates ... a spirit of freedom for religious organisations, an independence from secular control or manipulation - in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." (Kedroff v. St Nicholas Cathedral (1952) 344 US 94, at p 116 (97 Law Ed 120, at p 136) ). (at p613)

6. As the United States cases indicate, courts may properly determine church property disputes on neutral principles and also interfere where decisions of ecclesiastical government are based on fraud, collusion or arbitrariness. Otherwise, only marginal inquiry into church government is permissible. In cases such as this, the decisions of the governing body of the church should be accepted on issues of practice and procedure of ecclesiastical government, as well as issues ofdoctrine (Watson v. Jones (1871) 13 Wall 679 (20 Law Ed 666) ; Gonzales v. Archbishop of Manila (1929) 280 US 1 (74 Law Ed 1) (another non-constitutional case)). It has not been suggested in this case that the decisions of the General Assembly of the Presbyterian Church are affected by fraud, collusion or arbitrariness. (at p613)

7. In my opinion, the New South Wales Parliament did not intend by the passage of the uniting Acts that the courts should hear and decide controversies over religious doctrine or the practice or procedure of church government. (at p613)

8. Many of the appellant's submissions would require this Court to inquire into and decide controversial questions of doctrine (or departure from doctrine) or practice or procedure in ecclesiastical government. In my opinion, however forceful these arguments appear to be, they are outside the judicial sphere. Leaving them aside, I find no ground to support the appellant's case. The Court of Appeal was right to dismiss the proceedings and not answer the questions proposed. In my opinion, they cannot be resolved on neutral principles of law as some at least involve questions of religious doctrine, or practice and procedure of ecclesiastical government. (at p614)

9. The possible effect in these proceedings of s. 116 of the Constitution has not been raised. (at p614)

10. The appeal should be dismissed. In the Court of Appeal, the order for costs made by that Court was not opposed by those who now cross-appeal against the order. The cross-appeal should be dismissed. (at p614)

Orders

Appeal dismissed with costs.

Order of the Court of Appeal of the Supreme Court of New South Wales varied by answering the questions of law stated for the determination of that Court as follows:
Question 1.

"Whether, upon the assumption that a departure from heretofore Presbyterian fundamental doctrine is involved in the proposed Basis of Union 1971 of the Uniting Church, the resolution of 1st May 1974 of the Thirty-Fifth General Assembly of the Presbyterian Church of Australia approving such Basis of Union (set forth in Minutes 16 and 17 of the Proceedings of the said Assembly) was nevertheless a valid exercise of any power conferred upon that Assembly by Section 15 of the Schedule to Act 42 of 1971?"

Answer: Yes. Question 2.

"Whether, subject to any issue arising upon the assumption set out in question 1, the resolution of 1st May 1974 of the said General Assembly in favour of the Presbyterian Church of Australia entering into union with the Methodist Church of Australasia and the Congregational Union of Australia (set forth in Minute 43 of the Proceedings of the said Assembly) was a valid exercise of any such power?"

Answer: Yes. Question 3.

"If the answer to either question 1 or 2 is No, whether the resolution of 1st May 1974 of the said General Assembly (set forth in Minute 43 of the Proceedings of the said Assembly) purporting to appoint a Commission pursuant to Section 18 of the Schedule to the said Act was a valid exercise of any power under that Section?"

Answer: Unnecessary to answer. Question 4.

"Whether the result of the second vote of communicants referred to in paragraphs 11 and 12 of the Statement of Agreed Facts has any legal consequence for any purpose connected with the application of Section 18 of the Schedule to Act 42 of 1971?" Answer: Yes.

Cross-appeal dismissed with costs.