Ecclesiastical Jurisdiction in the Church of the Province of Aotearoa, New Zealand and Polynesia

Cox, Noel S., "Ecclesiastical Jurisdiction in the Church of the Province of Aotearoa, New Zealand and Polynesia" . Deakin Law Review, Vol. 6, 2001

Abstract:

This paper is an exploration of the legal relationship between Church and State in twenty-first century New Zealand, taking as its example the Anglican Church.

We begin with a look at the sources of fundamental authority within the Church, especially divine law as a superior source of law. This is followed by a brief look at the history and origins of canon law, the spiritual law of the Church. The legal position of the Church within the wider legal system is then examined, in its original English setting. The internal governance of the Church of England is then reviewed. The next step is an examination of the possible models, of disestablished Churches, and non-established Churches, which might be said to describe the situation of the Church in New Zealand. The doctrine of consensual compact, the secular legal basis for Church law, is then examined, along with the applicability of pre-existing canonical systems. Some aspects of secular legislation impinging on the Church is then reviewed.

In conclusion, it is asked whether the concept of separation of Church and State, so influential in many parts of the world, has been overstated in this country. It is postulated that this separation is alien to both the secular and spiritual laws. The true situation is an imperfect separation, but one which reflects the historical evolution of the English Church, particularly but not exclusively post-Reformation.

The Church is neither established nor dis-established. The Anglican Church in New Zealand may be classified broadly as quasi-established in the sense that whilst having the status of contractual societies, there are close legal links between the Church and State, the authority of internal Church law rests at least in part upon the existence of secular legislation, and secular legislation expressly and directly regulates some of the temporal affairs of the Church.

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