to the Appeal Tribunal of the Catholic Church for Australia &
of the Judgement of the Tribunal of the Catholic Church, Victoria
in Causa: Lilburne-Dowling, No: 301 00 165
In accordance with Canon 1634, this document indicates the
reasons for the appeal. The case is first summarised, then the
flaws in the Judgement and procedures used by the Tribunal are
discussed in detail.
Summary of Case Against Very Reverend Dowling
Very Reverend Dowling accepts that I was instituted as a lector,
as Very Reverend Waters wrote: "His evidence clearly implies
that he does not question that John Lilburne has been instituted
as a lector". (Acts, page 29).
Very Reverend Dowling says: "I believe that the ultimate
responsibility of who reads at Masses is mine." (Acts, page
He does not make a case for why I should not being allowed
to read as an instituted lector. In fact he says: "I have
no personal objection whatsoever to John Lilburne being a reader
of the Word of God at the Cathedral." (Acts, page 23, Q
On the question of whether any of the rostered readers at
St Patrick's Cathedral are instituted readers he replies: "To
my knowledge, they are not." (Acts, page 46, Q 2).
From this it is clear that people who are not instituted lectors,
are being given priority to read at the Cathedral, when an instituted
lector is available, and that Very Reverend Dowling accepts responsibility
for this situation.
This fails to comply with, for example, the General Introduction
to the Lectionary for Mass, n 51: "When there are instituted
readers available, they are to carry out their office at least
on Sundays and major feasts, especially at the principal Mass
of the day."
However, according to the Judgement, page 15: "We judge
that only instituted lectors who hold an office that calls for
liturgical reading at St Patrick's Cathedral take priority over
other readers at St Patrick's Cathedral." Apparently the
Office of Lector is judged to be inadequate, and a further office
is needed. Examples given on page 14 of the Judgement are "pastoral
associate, sacristan, catechist, director of catechumenate program,
etc." This is an unreasonable additional requirement, which
fails to respect the Office of Lector, and makes it meaningless.
Even when this additional requirement is satisfied, by Fabian
Smith being "acting Sacristan" at St Patrick's Cathedral,
the Judgement fails to uphold the law.
Flaws in the Judgement
Canon 230 §3
According to page 3 of the Judgement, "ministers"
in Canon 230 §3 refers to "the ordinary Church ministers
- bishops, priests and deacons". This is contrary to my
understanding of the term "ministers". I believe it
includes lectors and acolytes, as well as bishops, priests and
deacons. On page 13 of the Judgement:
We believe that the petitioner has misread or misinterpreted
this third paragraph of can. 230. The paragraph is simply dealing
with extraordinary ministers. The context is clearly indicating
lay persons supplying certain of the functions proper to sacred
ministers, namely bishops, priests and deacons. The words ministers
are not available (deficientibus ministris) cannot refer
to the lay ministers of lector and acolyte, as the functions
listed in can. 230 §3 are not proper either to lectors or
The interpretation that "ministers" in Canon 230
§3 refers only to clerics fails to explain:
- The use of the term "ministers", rather than "clerics",
"sacred ministers", or "ordained ministers"
which would have been used by the legislator if this exclusive
sense were intended.
- The context of Canon 230 §3, which is about lay ministers.
- The reference to Canon 230 §3 in the two official documents
I quote on page 35 of the Acts, which give priority to instituted
Functions in Canon 230 §3
While the term "ministers" need not refer exclusively
to instituted ministers, the choice of examples (as well as the
context) emphasises their role. The examples are "to exercise
the ministry of the word, to preside over liturgical prayers,
to confer baptism, and to distribute Holy Communion in accord
with the prescriptions of law." [All quotes from the Code
of Canon Law in this appeal are taken from Code of Canon Law
Latin-English Edition, Canon Law Society of America, Washington,
The lector's role in the ministry of the word is referred
to in the two documents quoted on page 4 of the Judgement: "The
lector is appointed for a function proper to him, that of reading
the Word of God in the liturgical assembly. Accordingly, he is
to proclaim the readings from Sacred Scripture, except for the
gospel in the Mass and other sacred celebrations...".
The role "to preside over liturgical prayers" would
include the acolyte's role in the worship of the Eucharist outside
Mass, as well as the role of instituted ministers in the Book
of Blessings n 18 (d) (Acts, page 34), and for Sunday
Celebrations in the Absence of a Priest, n 30 (Acts, page
The role of conferring baptism is more clearly understood
when it is appreciated that an instituted lector is a catechist.
As stated in the Ceremonial of Bishops, n 794: "In
addition the reader is entrusted with the special office of instructing
children and adults in the faith and of preparing them to receive
the sacraments worthily." In the Rite of Baptism for Children,
Chapter IV is entitled "Rite of Baptism for Children Administered
by a Catechist when no Priest or Deacon is Available". This
is also covered in Canon 861 §2.
The role "to distribute Holy Communion" refers to
that of the acolyte.
It is not surprising, therefore, that the Index to the Code
of Canon Law New Revised English Translation (HarperCollins,
1997, page 456) has under the heading "Lector" an entry
"certain functions of, 230 §3".
But according to page 4 of the Judgement: "Clearly these
texts indicate that the proper functions of a lector are not
those enumerated in can. 230 §3". Page 13 of the Judgement
has: "the functions listed in can. 230 §3 are not
proper to either lectors or to acolytes". One may agree
with these sentences, particularly based on an understanding
of "proper" as being exclusive. But it does not follow
that Canon 230 §3 excludes lay ministers, nor that it was
not included to emphasize the role of lectors and acolytes.
Priority to Lectors and Acolytes
The middle paragraph on page 3 of the Judgement does not make
Moreover, can. 230 §3, by using the words even though
they are not lectors or acolytes, is stating that an instituted
lector or acolyte has no rights to be deputed in preference to
other lay persons in carrying out the ministerial functions that
are proper to bishops, priests and deacons.
If the term "proper" means functions only
performed by clerics, then the sentence is simply meaningless:
no lay person can do what only a cleric can do. But if "proper"
is meant in the more general sense of being appropriate, then
the assertion is wrong. The phrase even though they are not
lectors or acolytes, emphasises the preference given to lectors
and acolytes. Canon 230 §3 concludes with "in accord
with the prescriptions of law." I referred to such laws
giving instituted lectors preference in Church documents in pages
33 - 35 of the Acts.
Extraordinary Ministers and Ordinary Ministers
Canon 230 §3 is discussed in page 13 of the Judgement:
"The paragraph is simply dealing with extraordinary ministers."
But to deal with "extraordinary ministers" it must
also deal with "ordinary ministers".
There is a ordinary minister for distributing communion -
a bishop, priest, or deacon - with others being extraordinary
ministers. In the same way there is an ordinary minister for
"proclaiming the readings from Sacred Scripture except for
the gospel" - an instituted lector - with others being extraordinary
ministers. Just as clerics have functions proper to them, lectors
have a proper function.
The lector is not usurping the function of the priest. If
a lector is available and the priest does these readings, then
the priest is usurping the functions of the lector. This is clear
from the 1975 General Instruction to the Roman Missal n 66: "The
reader has his own proper function in the eucharistic celebration
and should exercise this even though ministers of a higher rank
may be present."
Page 15 of the Judgement refers to a letter of 11 September
1987. (This is a typing error, apparently not noticed by the
five judges, since the letter on page 51 and 52 of the Acts has
the date 21 September 1987.) The claim "This is clearly
a private letter with no juridic value, since it has never been
published in Acta Apostolicae Sedis ..." is misleading.
The letter was about the Pontifical Commission for the Authentic
Interpretation of the Code of Canon Law's response of 1 June
1988, which was published in Acta Apostolicae Sedis 80
(1988), on page 1373. This is referred to on page 35 of the Acts,
and applies to this issue of ordinary and extraordinary ministers.
As the Judgement says on page 15 "The abuse was extraordinary
ministers of the Eucharist taking over the role of ordinary ministers."
It is unreasonable that it is not recognised how this principle
applies to lectors.
According to page 12 of the Judgement:
Installation to a ministry of lector or acolyte without appointment
to serve a specific ecclesial group or worshipping community
would be meaningless. Normally no bishop, priest or deacon can
lawfully exercise his ministry without holding an office that
requires the exercise of his ministerial functions. In order
to exercise lawfully his ministerial functions outside the context
of an office that he holds, permission needs to be obtained,
unless it is granted by the law. Similarly, after a lay man has
as a lector, he needs to be provided with an ecclesiastical
office wherein he can carry out the functions of his ministry.
... However, should a bishop institute a lector not destined
for Holy Orders, he would need to appoint him to a pastoral office
where the functions of this ministry can be lawfully exercised.
I do not believe that the Rite of Institution of Reader is
a meaningless ceremony. The "specific ecclesial group"
that I was appointed to serve (at least in a formal way in the
liturgy) is the Latin Church. The ceremony includes nothing more
specific than that. I was not making a commitment, for example,
to always live in the Archdiocese of Melbourne. The lector's
office is simply the Office of Lector.
Most Reverend Hart refers to the "importance of the Office
of Lector" (Acts, page 24, Q 4). There is no suggestion
that the "Office of Lector" is not an office, or that
an additional appointment is needed for its functions to be performed.
What is the basis for saying that a bishop "would need
to appoint him to a pastoral office where the functions of this
ministry can be lawfully exercised."? The Judgement refers
to an "office of pastoral associate" on page 12, an
"office that calls for liturgical reading at St Patrick's
Cathedral" on page 15, and an "office to serve a worshipping
community (such as pastoral associate, sacristan, catechist,
director of catechumenate program, etc.)" on page 14. With
all these offices regarded as valid, why is the Office of Lector
regarded as invalid?
On page 15 of the Judgement: "The suggestion that a blessing,
even if solemnly imparted by a bishop, is at the same time imposing
an office is preposterous." It is wrong to say that the
Rite of Institution of Readers does not give the Office of Lector
to the person instituted. If it does not do this, then it is
a meaningless ceremony.
The Judgement's assertion that it does not give an office
is inconsistent with the following:
- The bishop's words in the homily: "As readers and
bearers of God's word, you will assist in this mission, and so
take on a special office within the Christian community;"
(Acts, page 41).
- The Office of Lector satisfies the requirements of an office
listed on the bottom of page 12 of the Judgement. In accordance
with Canon 146 there is canonical provision for it, given in
Canon 230. In accordance with Canon 147 there is free conferral
of a competent ecclesiastical authority, as occurs in the Rite
of Institution. In accordance with Canon 157 this is done by
the bishop. The "Office of Pastoral Associate", for
example, does not satisfy these requirements to the same extent
as the Office of Lector does.
Confusion re Lawful Exercise of Functions
According to page 12 of the Judgement "after a lay man
has been instituted as a lector, he needs to be provided with
an ecclesiastical office wherein he can carry out the functions
of his ministry" and "should a bishop institute a lector
not destined for Holy Orders, he would need to appoint him to
a pastoral office where the functions of this ministry can be
lawfully exercised." This gives the impression that it would
be wrong, or unlawful, for an instituted lector to read - carry
out the functions of his mininstry - without an additional "ecclesiastical
office" or "pastoral office".
But according to page 14 of the Judgement: "The respondent
has no obligation to employ the petitioner, even if he were to
invite him on occasion or often to read as an instituted lector."
So the Judgement is inconsistent, with page 12 requiring an appointment
by the Archbishop, but page 14 simply requiring an invitation
from the respondent.
So if Very Reverend Dowling can invite me to read as an instituted
lector, why is an pastoral office required from the Archbishop
to perform this function? Why before institution should I be
able to read, but after institution require further approval
from the Archbishop to do this? It does not seem reasonable.
According to the 1975 General Instruction to the Roman Missal,
n 66, a lector is "instituted to proclaim the readings".
But page 12 of the Judgement seems to say: a lector is instituted
to prevent him from proclaiming the readings, unless the Archbishop
appoints him to a pastoral office. It is an unreasonable assertion
that is likely to cause confusion.
A Word Game?
What difference is there whether the word used is "office"
rather than "function" or "ministry"? To
an extent it is simply a question of semantics - whether I am
not being allowed to perform my "ministry", "office"
or "function", my ministeria, officium, or munus.
I have been instituted as a lector, but am not allowed to
read. Whichever word is used for what happened when I was instituted,
this is still wrong.
But if I do not have an office - "officia" - then
it could be argued that the words of Canon 230 §3 "officia
supplere" do not apply to me. Perhaps this is why the Judgement
pays so much attention to the word, so I examine how it is used
for instituted ministers in the next section.
"Office" in the Motu Propiro Ministeria
From the Motu Propiro Ministeria Quaedam I find the
officia - 3 times
officium - twice
officiis - once
officii - once
The first paragraph, taken from Acta Apostolica Sedis 69 (1972),
MINISTERIA QUAEDAM ad cultum Deo rite exhibendum et ad populi
Dei servitium iuxta necessitates praestandum vetustissimis iam
temporibus ab Ecclesia instituta fuerunt; quibus sacrae liturgiae
et caritatis officia exercenda fidelibus committebantur,
variis rerum adiunctis accommodata. Horum munerum collatio peculiari
ritu saepius fiebat, quo fidelis, benedictione Dei impetrata,
ad officium aliquod ecclesiasticum adimplendum in speciali
classi seu gradu constituebatur.
The translation of this, (from Documents on the Liturgy, Liturgical
Press, 1982, p. 908):
Certain ministeries were established by the Church even in
the most ancient times for the purpose of suitably giving worship
to God and for offering service to the people of God according
to their needs. By these ministries, the offices to be carried
out in the liturgy and the practice of charity, deemed suitable
to varying circumstances, were entrusted to the faithful. The
conferring of these functions often took place by a special rite,
in which, after God's blessing had been implored, a Christian
was established in a special class or rank for the fulfillment
of some ecclesiastical function.
The Motu Propiro quotes Sacrosanctum Concilium, n 14:
(1 Pt. 2, 9; cf. 2, 4-5), vi Baptismatis ius habet et officium.
(1 Pt 2:9; see 2:4 - 5), is their right and duty by reason
of their baptism.
In the next paragraph of the Motu Propiro:
In officiis peculiaribus servandis et ad hodiernas
necessitates accommodandis, continentur ea, quae praesertim cum
ministeriis Verbi et Altaris arctius conectuntur et in Ecclesia
Latina Lectoratus, Acolythatus et Subdiaconatus vocantur;
Among the particular offices to be preserved and adapted to
contemporary needs are those that are in a special way more closely
connected with the ministries of the word and of the altar and
that in the Latin Church are called the offices of reader
and the subdiaconate.
In the next paragraph:
Praeter officia Ecclesiae Latinae communia, nihil obstat,
quominus Conferentiae Episcopales alia quoque petant ab Apostolica
Sede, quorum institutionem in propria regione necessariam vel
utilissimam, ob peculiares rationes, iudicaverint.
In addition to the offices universal in the Latin Church,
the conferences of bishops may request others of the Apostolic
See, if they judge the establishment of such offices in their
region to be necessary or very useful because of special reasons.
In paragraph V of the Motu Propiro:
Lector suscepti officii conscius, omni ope contendat
atque apta subsidia adhibeat, quo plenius in dies sibi acquirat
suavem et vivum Sacrae Scripturae affectum atque cognitionem,
quibus perfectior fiat Domini discipulus.
Aware of the office he has undertaken, the reader is to make
every effort and employ suitable means to acquire that increasingly
warm and living love and knowledge of Scripture that will make
him a more perfect disciple of the Lord.
In paragraph VI, which is about the acolyte:
Poterit quoque - quatenus opus sit - aliorum fidelium institutionem
curare, qui ex temporanea deputatione sacerdoti vel diacono in
liturgicis actionibus opitulantur, missale, crucem, cereos etc.
deferendo vel alia huiusmodi officia exercendo.
He may also, to the extent needed, take care of instructing
other faithful who on a temporary basis are appointed to assist
the priest or deacon in liturgical celebrations by carrying the
missal, cross, candles, etc., or by performing other such duties.
Wrong Use of the term "Office"
These examples illustrate the unreasonableness of taking the
word "officium" and saying it only means an appointment
to a specific job. But this is the sense used on page 18 of the
Judgement: "Should the petitioner want to exercise his munus
of instituted lector, we recommend that he approach the Archbishop
to see whether there is an officium available in the Archdiocese
of Melbourne where this can happen."
The unreasonableness of saying I have the function but not
the office, the munus but not the officium, is
clear from Canon 145 §1 itself:
Officium ecclesiasticum est quodlibet munus
ordinatione sive divina sive ecclesiastica stabiliter constitutum
in finem spiritualem exercendum.
An ecclesiastical office is any function constituted
in a stable manner by divine or ecclesiastical law to be exercised
for a spiritual purpose.
Other examples of this narrow use of "office" are
on page 12 of the Judgement: "diocesan bishop of X, auxiliary
bishop of Y, parish priest of Z, episcopal vicar of A, chaplain
to B, assistant priest of C, deacon appointed to parish D, etc.".
But even without such specific appointments, people would still
have the "office of bishop", "office of presbyter",
"office of deacon", "office of lector" or
"office of acolyte". There are duties in Church law
associated with these different ministries, regardless of additional
duties arising from specific appointments.
But according to page 11 of the Judgement, discussing Canon
Instituted lectors are in lay ministry, and are in no sense
ecclesiastical authorities exercising Church governance. Moreover,
they do not automatically hold an ecclesiastical office.
It is contradictory to say someone is an instituted lector,
but does not have the "Office of Lector". An instituted
lector, by virtue of the rite of institution, automatically holds
an ecclesiastical office - the Office of Lector. It is an office
in the Church, so it is an ecclesiastical office. It is unreasonable
for the Judgement to say instituted lectors do not automatically
have the Office of Lector, following their institution. It could
be reasonable to say that someone instituted as a lector but
has lost the Office of Lector as a penalty for an offence, but
clearly this is not the meaning intended.
Perhaps part of the entry on "office" from the Harper
Collins Encyclopedia of Catholicism (New York, 1995, page 931)
will be useful:
In the 1917 Code of Canon Law, officeholders were limited
to the clergy alone, because "office" was strictly
defined; it included the exercise of jurisdiction, the governing
power within the Church. Because clerics alone could possess
jurisdiction, positions requiring it were limited to them alone.
In the current code (1983) the term "office" is understood
in a broader sense; any permanent ministry for the good of souls
is considered to be an office. Broadening the definition of office
not only allows members of the laity the opportunity to hold
office, but also places additional positions under the same norms
as clerical offices, thus protecting the rights of lay ministers.
According to page 12 of the Judgement: "A fundamental
principle is that the functions of ministry are different from
office." Perhaps there was such a principle in the 1917
code, but for instituted lectors the terms "ministry",
"function" and "office" seem to be used without
much difference, in the Motu Propiro Minsteria Quaedam.
Judgement Inconsistent Regarding Fabian Smith
The Judgement fails to use the criteria it establishes in
the case of Fabian Smith.
According to page 14 of the Judgement: "If an instituted
lector has been given an office to serve a worshipping community
(such as pastoral associate, sacristan, catechist, director of
catechumenate program, etc.), naturally it would be appropriate
and normal for him to carry out the special munus he possesses."
On Acts page 38 I give evidence that Fabian Smith is an instituted
lector and that on Sunday 21 January 2001 I saw him as an altar
server with Very Reverend Dowling, but not reading. On Acts page
46, Question 3, Very Reverend Dowling gives evidence about Fabian
Smith: "At the Cathedral he was acting Sacristan."
So even when someone has the additional requirement of "an
office to serve the worshipping community (such as .... sacristan..."
the Judgement fails to apply this. Simply on this point my rights
under Canon 846, that the liturgical books be faithfully observed,
Of course I believe that Fabian Smith should read simply because
he is an instituted lector. But the Judgement, which makes the
additional requirement of a job like sacristan, fails to uphold
the law even when this additional requirement is satisfied.
Flaws in the Judgement - Non Central
In this section other flaws in the Judgement are discussed.
I do not consider these issues as the central to this case. I
hope that in raising them, there is not a diversion from the
central issues above. They are included, not only because I think
they should be corrected, but also to highlight the short comings
of the Judgement.
The Judgement fails to address the issue of the damage to
my reputation in being treated as someone who had lost the office
or ministry of lector. This was an issue raised in the Libellus:
"that the ministry was somehow removed as a penalty for
some offence." On page 37 of the Acts I wrote:
Valid reasons for preventing me from functioning as an instituted
reader would be for the penalties of excommunication (in accordance
with Canon 1331), interdiction (Canon 1332), or as a penalty
in accordance with Canon 1336 (where an offender can be punished
with "deprivation of power, office, function, right ...").
Canon 846 §1
On page 8 of the Judgement the liturgical texts are discussed:
The first is the General Introduction (Praenotanda)
to the Lectionary for Mass, n 51:
The reader's ministry, which is conferred through a liturgical
rite, must be held in respect. When there are instituted readers
available, they are to carry out their office [proprio munere]
at least on Sundays and major feasts, especially at the principal
Mass of the day.
It is clearly stated here that the ministry of reader - whether
performed by an instituted lector or by a reader with a temporary
deputation - is to be held in respect.
It is a mistake to interpret these sentences as applying to
readers with a temporary deputation. What distinguishes an "instituted
reader" from "a reader with a temporary deputation"
is the ceremony of institution. The instituted reader's ministry
is "conferred through a liturgical rite" but the "reader
with a temporary deputation" does not have a ministry conferred
though a liturgical rite. At least this was the case in 1981,
when the instruction was written.
The mistake could be based on the Book of Blessings
having a ceremony for the blessing of readers. According to Book
of Blessings, published by Liturgical Press, Minnesota, in
1989, page 691:
CHAPTER 61 ORDER FOR THE BLESSING OF READERS ...
1828 This order is not intended for the institution of readers
by the bishop, who uses the rite contained in the Roman Pontifical.
Rather, this blessing is for parish readers who have the responsibility
of proclaiming the Scriptures at Mass and other liturgical services.
But this ceremony did not exist in 1981 when the General Introduction
to the Lectionary for Mass was written. In 1984 De Benedictionibus
was published, without a Blessing for Readers. In 1989 approval
was given for this additional blessing for use in the United
States of America.
The Judgement discusses the Ceremonial of Bishops on page
One text is from the Caeremoniale episcoporum, which
is clearly not a liturgical book in the proper sense, as it merely
describes rites. At any event, this book is for bishops, so we
cannot see how its prescriptions apply to the respondent, except
in the remote sense that he sometimes assists in rites celebrated
by a bishop. Moreover, this text simply states it is fitting,
and refrains from implying an obligation by using words such
as it is obligatory.
To say the Caeremoniale Episcoporum "merely describes
rites" suggests an inadequate understanding of the legal
importance of this book. Perhaps some quotes from the Decree
of publication (from Ceremonial of Bishops, Liturgical
Press, Minnesota, 1989, page 9) will show this:
The aforementioned pastoral and juridical norms issued by
the Apostolic See, as well as the norms and rubrics already laid
down in the liturgical books, remain in force, unless this Ceremonial
corrects them. ....
The Congregation for Divine Worship prepared this new Ceremonial
of Bishops and Pope John Paul II, at an audience of 7 September
1984 granted to the undersigned Pro-Prefect and the Secretary
of the Congregation, by his authority approved it and ordered
By mandate of Pope John Paul II this Congregation for Divine
Worship therefore publishes the new Ceremonial of Bishops
and decrees that it supersedes the previous Caeremoniale Episcoporum
as soon as it is issued.
All things to the contrary notwithstanding.
The Caeremoniale Episcoporum corrects earlier rubrics.
Changes in it did not apply only to bishops or only to Mass with
bishops. For example, according to the 1975 Roman Missal and
1981 Lectionary for Mass at the reading of the Gospel the three
crosses were made only by the person reading the Gospel. But
this was corrected by the Caeremoniale Episcoporum , n
74 with "The bishop signs himself in the same way on forehead,
lips, and breast, and all present do the same."
The Judgement says "this text simply states it is
fitting, and refrains from implying an obligation by using
words such as it is obligatory." If the words were
changed to "it is obligatory" then bishops would be
put in the absurd position of not being allowed to celebrate
Mass without an instituted reader. So it is unreasonable to use
this text to say that it is not obligatory to use an instituted
reader when they are available. It is stressing the importance
of instituted readers being available for Mass with a bishop.
Regarding the General Instruction to the Roman Missal, the
importance of Church unity does not seem to be dealt with adequately.
For example on page 9 of the Judgement:
We consider the Institutio Generalis is entirely different
in character from the general rubrics in the Missal of Pius V.
The Institutio presents first of all the doctrinal and
pastoral considerations in order to give meaning to the rubrics.
Therefore, any regulations are to serve the pastoral aims of
Pope Paul VI wrote on 3 April 1969 in the Apostolic Constitution
of the Roman Missal, (from The Sacramentary, Catholic
Book Publishing Company, New York, 1985, page 10):
After what we have presented concerning the new Roman Missal,
we wish in conclusion to insist on one point in particular and
to make it have its effect. When he promulgated the edito
princeps of the Roman Missal, our predecessor St. Pius V
offered it to the people of Christ as the instrument of liturgical
unity and the expression of a pure and reverent worship in the
Church. Even though, in virtue of the decree of the Second Vatican
Council, we have accepted into the new Roman Missal lawful variations
and adaptions, [footnote 15: See SC, art. 38-40] our own expectation
in no way differs from that of our predecessor.
Change the Homily in the Roman Pontifical
According to page 16 of the Judgement: "if the instituting
bishop uses the sample homily reproduced on p. 41, the impression
could be created in the minds of the ignorant and confused that
along with the munus of lector, an officium is
being conferred ...". The solution seems to be to change
the homily, or not use it.
It is extraordinary that this should be suggested in a Judgement
considering Canon 846 §1: "The liturgical books approved
by the competent authority are to be faithfully observed in the
celebration of the sacraments; therefore no one on personal authority
may add, remove or change anything in them."
The homily is part of the Roman Pontifical. According to the
rubrics the homily is not optional: "the bishop gives the
homily, which he concludes by speaking to the candidates in these
or similar words:...". Part of the homily is: "As readers
and bearers of God's word, you will assist in this mission, and
so take on a special office with the Christian community;"
This highlights that an office is obtained though institution,
and the suggestion that the homily be changed shows the flaw
in the Judgement saying institution does not give an office.
According to page 10 of the Judgement, Canon 1375 "aims
to ensure freedom and lack of intimidation within the Church,
namely in the exercise of the ordained ministry...". While
I agree it includes the ordained ministry, there is no reason
for it to exclude the lay ministry.
On page 17 of the Judgement the issue of an instituted reader
wearing an alb is discussed. It is claimed that there is a custom
of instituted readers not wearing albs despite the 1981 General
Introduction to the Lectionary for Mass, n 54. According to page
17 of the Judgement: "Whatever may be written about lectors
or readers wearing albs, surely the custom, not only in the Archdiocese
of Melbourne but throughout Australia, is that they do not."
But this contradicts Most Reverend Hart on Acts page 25: "The
distinctive vestment common to all Ministers is the alb. In other
words, there is no difference in the vesture for a lector than
for any other Minister."
It is also inconsistent with Very Reverend McKenna on Acts
page 19: "At the institution they wear an alb or a soutane
and surplice. ... The February 2000 group wore albs, from memory."
My evidence on Acts page 38: that the readers at the Mass of
institution on 27 February 2000 wore vestments. Another case
is from my evidence on Acts page 37, which describes me wearing
vestments as a lector at the Mass on 9 November 2000.
If an instituted lector does not wear vestments in accordance
with the General Introduction of the Lectionary for Mass, n 54,
then it is a case of liturgical law not being followed. It is
unreasonable to claim it is a legitimate custom.
Flaws in Procedure?
In this section I raise questions about whether the procedures
for trial under Canon Law were adequately followed in this case.
According to Canon 87, a diocesan bishop can dispense from
some Church laws. But this Canon stresses that procedural laws
cannot be dispensed from: "He cannot dispense, however,
from procedural or penal laws ...". This highlights the
importance of these laws for justice in the Church.
According to Canon 1454: "All persons who constitute
a tribunal or assist it must take an oath that they will fulfil
their function properly and faithfully." The importance
of the procedures
being followed properly is thus further stressed.
Notary Not Present
At my interrogation on 6 February 2001 there was no notary
present. Very Reverend Waters took notes himself, without using
a tape recorder that was available on the desk. There is no indication
of a notary being present at any of the other interrogations,
so I assume the same method was used for these as well.
This method seems to breach Canon 1561: "The examination
of a witness is conducted by the judge, a delegate or an auditor,
who is to be assisted by a notary;...". Similarly Canon
1567: "The answer is to be put in writing at once by the
notary ...". According to Canon 1569:
§1. At the conclusion of the examination what the notary
has put in writing from the deposition must be read to the witness
or the witness must be given an opportunity to listen to the
tape recording of the deposition with the option of adding to,
suppressing, correcting or changing it.
§2. Finally the acts must be signed by the witness, the
judge and the notary.
None of the interrogations in the Acts have these three signatures.
In my case, parts of the interrogation were read back to me during
the interrogation. However the complete examination was not read
back to me at the conclusion, in accordance with Canon 1569.
Thus I was not given the opportunity to correct the interrogation.
One obvious flaw I would have corrected is on Acts, page 13,
question 2. I am asked for my date of birth, but according to
the Acts I did not give it (although, from memory, I think I
The importance of the notary is stressed in Canon 1473:
Whenever the signature of the parties or witnesses is required
for judicial acts and a party or a witness cannot or will not
sign, this is to be noted in the acts; both the judge and the
notary are to attest that the act has been read to the party
or witness verbatim and that the party or witness either could
not or would not sign.
But by not having a notary present, this is not possible.
Canon 1437 also stresses the importance of a notary:
§1. A notary is to be present during each procedure
so that the acts are considered null if they have not been signed
by the notary.
Procedure for Appeal
On 29 March 2001 I wrote to Very Reverend Waters:
I am writing to lodge an appeal, in accordance with Canon
1630. I direct it to the Appeal Tribunal of the Catholic Church
for Australia & New Zealand.
I intend to give the reasons for the appeal when I pursue
it, in accordance with Canon 1634.
His reply of 9 April 2001 included:
... As soon as I have received your appeal, I shall forward
it to the Judicial Vicar of the Appeal Tribunal.
You have until 29 April 2001 to forward the appeal to me.
This does not seem in accord with Canon 1634 §1: "In
order to prosecute an appeal, it is required and suffices that
the party call upon the services of a higher judge for the emendation
of the challenged sentence, append a copy of this sentence, and
indicate the reasons for the appeal."
Given the contents of this appeal it seems inappropriate to
me that it be forwarded through the Tribunal of the Catholic
Church, Victoria & Tasmania.
23 April 2001
Copyright J.R. Lilburne, 19 October