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Appendix B-3: Opinion on Agreement for Union and the Presbyterian Church of New Zealand Act 1901, by F C Spratt 1931
1) My opinion is sought upon certain questions that have been stated as follows:
a) In Preamble of The Presbyterian Church of New Zealand Act, 1901, the words ‘have agreed to unite on certain terms’ occur. Do these words give the said Agreement the force of an Act of Parliament?
b) Article XII: ‘That the Barrier Act shall apply to all proposals for fresh legislation.’ Does this article of the Agreement provide that the Assembly may alter the provisions of the terms of the Agreement for Union so long as the fresh legislation is carried out under the Barrier Act?
c) The Assembly has for 30 years acted under the belief that it had power thus to change the provisions of the Agreement. Has the Assembly erred in so acting?
d) The present Assembly is composed of members who have not been appointed according to the provisions of the Agreement because of changes which have been made. Is this a legal Assembly?
2) I understand that the questions have been raised in the following circumstances. Article III of the Agreement for Union, which is part of the Constitution of the Church, provides (inter alia) that 'the United Church shall be governed by … a general assembly designated the General Assembly of the Presbyterian Church of New Zealand, in which all the ministers of the Church and an elder from each Session shall have the right to be present and take full part in the business, but the right to vote shall be limited to the representative ministers and elders who shall be appointed by the Presbyteries in the proportion of one-half of the number on their rolls.’
An overture has been proposed to the Assembly by one of the Presbyteries, to the intent that the proportion stated in the said Article III shall be altered from one-half to one-fourth.
The Overture coming before the Assembly, and a motion being proposed to remit the same to the several Presbyteries, an objection was taken that it is not within the power of the Assembly to remit such an overture as being contrary to the Agreement for Union.
The short question, therefore, is whether such an objection is well founded or not?
3) In my opinion, the objection is not well founded.
As I understand the rule of the Scottish Churches, they have always claimed the right to make ‘any alteration or innovation in either doctrine or worship or discipline or government’ of the Church, subject in all cases, where the Barrier Act or similar provisions have been adopted, to such provisions for the prevention of hasty or sudden decisions on matters of moment.
Be that as it may, the United Church, as appears from the statement submitted to me, has more than once during the last thirty years acted upon such a view of its powers, and in my opinion the power of alteration is clearly recognised by Article XII of the Agreement for Union, which provides that the Barrier Act shall apply to all proposals for fresh legislation.
There is no need for me to do more than refer to [Regulations 373 to 379 and 411] of the Book of Order and especially [379] in order to show that the whole scheme of the provisions relating to the constitution of the Church contemplates the power of the Assembly, subject to the provisions of the Barrier Act, to make such an alteration or innovation as that proposed.
4) We come now to the specific question raised, and first to that concerning ‘The Presbyterian Church of New Zealand Act, 1901’. That Act is merely a property Act, the only relevant provisions of which are to ensure to the Synod representing the old Church of Otago and Southland the continued ownership and enjoyment of its separate property.
The preamble, it is true, recognises the fact of the Agreement for Union. It was indeed necessary that it should do so, in order to make intelligible the enacting part of the Statute. But the preamble does not give statutory force to the Agreement for Union. The Act, in my opinion, does not limit the powers of Assembly to legislate in its own province.
The other specific questions are, I think, sufficiently answered by the foregoing opinion.
F. C. Spratt
49 Ballance Street, Wellington,
June 8, 1931
NOTE: The references in square brackets in clause 3 have been substituted for references in the original to an earlier edition of the Book of Order.