28 July 2004

The Reverend Dr Kerry Enright
Assembly Executive Secretary
Presbyterian Church of Aotearoa New Zealand
WELLINGTON

via email

<typohead type="3">Re: Constitutional Changes – Westminster Confession </typohead>

Background

1. The Presbyterian Church of Aotearoa New Zealand is in the process of reviewing its Constitution. This entails a substantial rewrite of Chapter 1, including Rule 1 – Standards.

2. Rule 1(b) provides:

That the Westminster Confession of Faith and the Larger and Shorter Catechisms are the subordinate standards of this Church;

It is likely that Rule will be deleted. Instead, it is proposed that there be a Rule along these lines:

The Presbyterian Church of Aotearoa New Zealand stands within a heritage of confessions of faith that giving living expression to the Word of God, which include:

Amongst the Confessions that would be then included would be the Westminster Confession of Faith and the Larger and Shorter Catechisms.

3. I have been asked to advise whether or not the Presbyterian Church has the power to make such a change. Some supplementary questions were also asked of me.

Advice

4. In my view, the Presbyterian Church does have the power to make the proposed change.

5. But this view is subject to a number of qualifications. This is because the power to make such change is contained within Rule 1(e) which power is a limited power only. That Rule provides:

The Presbyterian Church of Aotearoa New Zealand is founded on the following basis:

…

e)That the Church has the right, in dependence on the promised guidance of the Holy Spirit, to formulate, interpret or modify its subordinate standards; always in agreement with the Word of God and the fundamental doctrines of the Reformed Faith contained in the said Confession and other subordinate standards, of which agreement the Church itself shall be the sole judge.

The qualifications that this gives rise to are set out below.

Qualifications

6. The Westminster Confession and the Catechisms are the subordinate standards of the Presbyterian Church. Rule 1(e) confers on the Church the right to "formulate, interpret or modify its subordinate standards". It does not confer a power to do away with subordinate standards altogether. To declare the Westminster Confession and Catechisms are simply confessions that are part of the heritage of the Presbyterian Church would mean that they are no longer subordinate standards.

7. Although the proposed replacement Chapter 1 refers to a Focal Identity Statement, a draft of which I have seen, the function of that Statement is different from being a subordinate standard of the Church. Something more comprehensive is required.

8. This problem can be solved by formulating new subordinate standards or by, for instance, declaring that the Declaratory Act 1892-3 and the Statements of Fundamental Doctrines of 1965-71 (already within the Book of Order) are now the subordinate standards. I make this comment simply from a legal perspective. It is, of course, for the Presbyterian Church to make that decision from a theological perspective.

9. Whatever is done, any new such subordinate standards need to be "in agreement with the Word of God and the Fundamental Doctrines of the Reformed Faith contained in the said Confession and other subordinate standards". On these matters the Church is the sole judge. However, in reaching any such decision, the Church must act in accordance with its Constitution and in good faith.

10. The constitutional issues can be solved by following the appropriate processes of the Presbyterian Church, including complying with the Barrier Act and by the use of Overtures.

11. It would be desirable that any resolution effecting the change and deciding upon replacement subordinate standards, should affirm the view of the Church that what it is doing is in agreement with the Word of God and the Fundamental Doctrines of the Reformed Faith contained in the Westminster Confession of Faith and the Larger and Shorter Catechism.

12. As will be apparent from the foregoing comments, the existing power to modify the Constitution of the Presbyterian Church is a qualified power. Any amendment to the Constitution needs to preserve that qualification on the power of modification. It is not permissible for an unincorporated association, particularly a Confessional Church, to first of all, amend the power of modification and then make amendments to the Constitution that go beyond the scope of the original power of modification.

Is an Act of Parliament Needed?

13. Provided the foregoing qualifications are satisfied, the Presbyterian Church can effect the proposed changes without requiring a private Act of Parliament.

14. There may, however, be some residual issues in relation to property matters. These would arise where the original trust deed for the land in question declares that the land is held in trust for a Church that adheres to and follows the Westminster Confession of Faith and the Larger and Shorter Catechism (or other similar such wording). In order to protect the ongoing Church’s access to such property, it may still be desirable to have an Act of Parliament declaring that property currently held in trust for the Presbyterian Church as presently constituted will continue to be held in trust for the Presbyterian Church under the amended Constitution.

15. My reasons for the foregoing views are set out in more detail in a formal Opinion.