Howie v Lawrence  VSC 616 (Supreme Court of Victoria, Mukhtar AsJ, 1 November 2013)
The Uniting Church in Australia was formed in 1977 from the union of the Presbyterian, Methodist and Congregationalist Churches. The forming of the church was recognized in statute by The Uniting Church in Australia Act 1977. The statute created a property trust which held the church’s assets. The Church itself was the beneficiary of the trust.
In recent years the church has experienced a long term decline with concomitant impacts on its financial stability. In addition, certain of the Church’s operations had financially failed generating significant debt. In May 2013 the Church’s Synod for Victoria and Tasmania (which included the Synod Property Trust, which held legal title to the church’s property), resolved to consider sales of certain church properties. It was also resolved that that decisions concerning sale of land would be made after discussions with the communities affected.
On 9 October 2013, the general secretary of the Synod’s Committee announced that a number of church properties would be sold, including St Stephen’s Church at Williamstown along with the associated hall and residence.
An application by a member of the St Stephen’s Church congregation (Kenneth Howie) sought judicial review of the decision to sell the premises under the Administrative Law Act 1978. He was accepted as having standing to make the application, being a person “whose interest…is…affected…to a substantial degree by a decision which has been made…”
In His Honour’s assessment, the critical question was whether the Synod’s committee was legally required by law to observe the rules of natural justice. While the Court accepted that neither the Uniting Church or its Synod were public bodes or a statutory authorities performing a statutory function, he considered it important that the church had both a statutory origin and statutory recognition. It was observed that the acts of an entity can be subject to judicial review even if they are not created by government or invested with statutory powers (for example, regulatory bodies recognised by statute, or having a ‘statutory linkage’ or performing a public function with government). The Court considered that there was a public element where the Church had a statutory origin or recognition. It noted that a public element can take a range of forms and that power is ‘public’ particularly if decisions carry significant weight.
Although the statutory basis of the church did not make it a public authority, it gave it a statutory and ‘public’ quality which meant it should “be accountable to the norms and values of public law including the requirements of natural justice”. However, it was not stated that religion was the business of government or that all of the Church’s activities would be subject to judicial review.
His Honour considered that the Church’s committee had not shown cause why their decision should not be reviewed by the Court. The matter will now proceed through the process of judicial review.
A number of Australian churches and religious bodies have a statutory foundation, sometimes based on legislation dating from the early colonial period (one such Act dates from 1838), including the Brotherhood of St Laurence, the Church of Christ, Scientist, the Church of Scotland, the Church of England, the Hungarian Reformed Church, the Roman Catholic Church in respect of property matters, the Sisters of Mercy in respect of at least one parcel of land, the Church of Christ in connection with property, the Baptist Church, the YWCA and possibly the Wesleyan and certain other older denominations. Notwithstanding the court’s refusal to inject judicial review into all aspects of church life, it may be interesting over time to consider whether statutorily founded churches and bodies may find that determinations which have affect congregations (for example, decisions as to doctrine which result in schisms) may ultimately be susceptible to review in the courts. Even more intriguingly, a person seeking to claim damages from a church may be able to call into question the validity of decisions to establish church structures or property arrangements which affect that persons prospects of recovering compensation.