How not to depose an Anglican bishop in Australia: Slater

Background

The former Bishop of Grafton, Keith Slater, resigned on 17 May 2013 and retired to the Diocese of Brisbane. In 2015 under the terms of the Diocese of Grafton’s Professional Standards Ordinance 2004 (the “2004 Ordinance”), his successor, Bishop Sarah Macneil, deposed him “from Holy Orders in the Anglican Church of Australia” in accordance with the recommendation of the Professional Standards Board of the Diocese of Grafton [4]. The matter ultimately came before the Appellate Tribunal of the Anglican Church of Australia, in Appeal of Keith Francis Slater [2017] 19 January. It’s an unusual judgment.

The deposition had followed a conclusion by the Diocese of Grafton’s Professional Standards Committee relating to Bishop Slater’s perceived failings in relation to allegations of child abuse within the Diocese of Grafton during his time as Bishop [23]. The complaint was emphatically not that Bishop Slater had had any part in child abuse himself, but that he had failed to act appropriately on a series of allegations of abuse against others [24]. The Professional Standards Board of the Diocese upheld the complaint; subsequently, a copy of the Instrument of Deposition was delivered to the Primate and the relevant details were entered in the National Register. The action was announced throughout the Diocese by a Pastoral Letter and a media statement [33]. Bishop Slater appealed.

The appeal

The Appellate Tribunal consists of seven members, three diocesan bishops and four laypeople elected by General Synod: the lay members must be both qualified as diocesan lay representatives and either judges or practising barristers or solicitors. Before the Tribunal Bishop Slater challenged the validity of his deposition and contended that he was entitled to appeal by way of a hearing de novo [35]. The Tribunal concluded, however, that it had no jurisdiction because the Grafton ordinance which had established the diocesan tribunal had not included any right of appeal:

“no mechanism for review was enacted beyond what may be implicit in the fact that the ‘relevant Church authority’ (the Bishop of the Diocese) was ‘empowered’ (as distinct from ‘required’) to give effect to any recommendation by the Professional Standards Board or its equivalent in another diocese” [7].

Moreover, the Episcopal Standards Commission of the Anglican Church of Australia – which would have had jurisdiction had he still been Bishop of Grafton – “formed the view that Bishop Slater’s resignation had deprived it of jurisdiction to consider the information about his conduct while Bishop of Grafton” [71].

Nevertheless, even though the Tribunal concluded that it did not have jurisdiction to hear the appeal, it also ruled that the deposition itself had no legal basis because the Professional Standards Board of the Diocese of Grafton had exceeded its own jurisdiction. In explanation:

“It is necessary to understand what, in jurisdictional terms, happened in the proceedings against Bishop Slater in Grafton. If those proceedings produced a legal nullity, because jurisdictional deficits rendered null and void the outcome of the processes actually taken against Bishop Slater, then (whatever additional remedies may be available to Bishop Slater) there would be nothing in law for him to appeal against in this Tribunal. If this Tribunal arrived at such a conclusion as to the legal issues in the course of considering its own jurisdiction, then it may be expected that expressing and explaining it would be welcomed and accepted in view of the justice of the situation, the costs already invested in the proceedings here and below, the impact of the action already taken with regard to the National Register, the desirability of avoiding further litigation in the secular courts, and the 15 theological principles discussed by St Paul in 1 Corinthians 6” [42].

It concluded that:

  • “the Grafton authorities had no jurisdiction over Bishop Slater under the 2004 Ordinance. Furthermore, such jurisdiction as they purported to exercise was legally flawed” [168];
  • “the recommendation of the Grafton [Professional Standards Board] and the Instrument of Deposition issued in consequence by Bishop Macneil were and are null and void in our opinion. It will be a matter for Bishop Macneil whether she respects this view and whether, in addition, she formally revokes that Instrument or takes any other action to remedy the injustice unintentionally inflicted upon Bishop Slater by the steps taken and announced against him in 2015” [169];
  • “[t]he General Secretary or other appropriate authority should rectify the National Register by removing any reference to Bishop Slater’s deposition from Holy Orders, perhaps in conjunction with any steps taken by Bishop Macneil, but not necessarily so” [170]; and
  • “[t]he Episcopal Standards Commission may consider whether taking any action consistent with these reasons is appropriate at this point of time, and (if it is) which diocesan bishop should be contacted” [171].

While the Appellate Tribunal did not make any order in respect of the nullity (not having jurisdiction to do so), it noted:

“Lacking appellate jurisdiction, this Appellate Tribunal cannot preclude the parties from relitigating the jurisdictional issues in a civil court (at risk as to costs), but we respectfully venture to repeat the remarks in para 42” [172]

Comment

It must be highly unusual for a tribunal of any kind to conclude that it has no jurisdiction in a particular case and then go on to conclude that the proceedings in the lower tribunal were so flawed as to render them null and void. But given that it was obvious to the Appellate Tribunal that the Grafton Professional Standards Board had acted ultra vires for want of jurisdiction, it could hardly avoid saying so – “in view of the justice of the situation”.

With thanks to Gavin Drake for drawing this case to my attention and for contributing to this note.

Cite this article as: Frank Cranmer and Gavin Drake, “How not to depose an Anglican bishop in Australia” in Law & Religion UK, 2 February 2017, https://www.lawandreligionuk.com/2017/02/02/how-not-to-depose-an-anglican-bishop-in-australia-slater/.

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