The NZARH strongly believes that government should be secular, neither recognising nor funding religion or other non-religious belief.
We do not address individual issues arising from the Treaty of Waitangi. We note the New Zealand Human Rights Committee statement that ‘Articles 2 and 3 of the Treaty of Waitangi both provide protection for Maori to observe and practise their religions and beliefs.’ We believe that the Treaty of Waitangi concerns cultural and land rights that attain to a colonised people, and appropriate special measures for cultural integrity do not apply to the freedom they have to adopt and practise a religion of their choice. We therefore believe that what we say below is in accord with the spirit and intention of the Treaty of Waitangi.
The NZARH advocates:
1. The adoption of a written document, a New Zealand Constitution, setting out the basic principles of our democratic society and the institutions of government, containing a Bill of Rights listing those rights contained in the International Convention on Human Rights (ICCPR) in legislation that is entrenched
2. A clear statement in the Constitution that New Zealand is a secular society, setting out that this means complete separation of the state from religious or non-religious beliefs. This involves specific requirements that the state should neither fund, endorse or adopt the dictates of any religious or other non-religious belief, nor should it permit discrimination against any person or organisation, religious or otherwise, on the basis of religious or other non-religious belief
3. New Zealand becoming a republic.
We submit that the current constitutional provisions that determine the structure of Government is fragmentary, incomplete and difficult for citizens to understand. New Zealand should have a written constitution establishing the principles underlying our society, clearly defining the powers and limits of government.
A New Zealand Constitution should also contain a Bill of Rights to apply in similar fashion to the Canadian Charter of Rights and Freedoms and its relationship to the Canadian Constitution. It should a include a right to judicial remedy for infringement of rights, in addition to the option of applying to the Human Rights Commission. Any power of Parliament to pass legislation notwithstanding its infringement of rights should be subject to conditions similar to section 33 of the Canadian Charter. Section 33 provides that Parliament may expressly declare in legislation that an Act or a provision thereof shall operate notwithstanding it is contrary to the Charter. The declaration ceases to have effect five years after it comes into force or on such earlier date if specified. This provides that the electorate has the opportunity to vote on the issue at the following election.
The NZARH notes the concern expressed by the UN Human Rights Committee in 2002 that the NZ Bill of Rights Act 1990 (BORA) has no higher status than ordinary legislation, allowing laws that are incompatible with the provisions of the ICCPR, leaving victims being denied a remedy for breach of their rights. 2 We also note that the rights it contains are less expansive than those listed in the ICCPR.
We propose that constitutional provisions should include a list of Rights as set out in the ICCPR.
The creation of the United Nations and adoption of universal human rights means that Parliamentary ‘sovereignty’ is not boundless: it is subject to the obligations imposed on nations by their adoption of that Convention.
Parliamentary action should be reviewable by an independent body, the judiciary, to ensure compliance with these obligations. While there are arguments for and against entrenching legislation, especially a Bill of Rights, we believe political interests can influence parliamentary decision-making to a more detrimental extent than judicial overview. If a specific constitution is rejected, we argue that the following proposals should apply to any constitutional legislation.
However, we would re-word the provision of freedom of religion and belief in a New Zealand Constitution to clarify the necessary separation of government from the doctrines of religious and other non-religious beliefs, in accordance with international interpretation of the term ‘religion and belief’ to include a person’s non-religious convictions relating to the meaning of life and the fundamental values that prescribe an honourable existence. Specific principles that give expression to our submission are attached.
Is New Zealand Secular?
Citizens may accept that New Zealand is a secular nation, but differ in what they mean by secularism. The word secularism has been given several meanings, including
(1) the worldly aspects of religious activity such as management of religious institutions and their charitable works (religious secularism);
(2) a worldview and ethical code (philosophical secularism);
(3) impartiality towards the dictates of belief by the state in the exercise of its political power (political secularism).
In this Submission NZARH is referring to political secularism: impartiality towards the dictates of religious or non-religious belief by the state in the exercise of its political power. We argue political secularism is a mechanism by which the government ensures that no-one will be coerced, disadvantaged, or unduly influenced by the dictates of the personal beliefs and values of others. Nor will government advance particular beliefs and values, or favour those who hold or promote them. For example, it would be wrong for government to claim that New Zealand is either a Christian or atheist nation. In a liberal democracy government is based on the political values arising from the consensus of the people from widely differing perspectives, realised generally in the sovereignty of parliament, but subject to human rights and the rule of law. This consensus can be understood as public reason, the policies arrived at by the process of representative democracy.
However, we argue, New Zealand is characterised by entanglement of the state with religion. Entanglement means that the dictates of religious belief are adopted as part of government culture. For example:
- The National Anthem, God Defend New Zealand, is like a religious hymn
- The Head of State is the British monarch who is also the Supreme Governor of the Church of England and must marry a member of that Church
- Parliament begins with Christian prayers
- Shops close to celebrate three Christian anniversaries
- There are multiple tax exemptions for the advancement of religion
- There is funding for religious schools
- Religious instruction and religiously-oriented programs are run as part of routine activities in government schools
- Christian prayers are said as part of official proceedings at many local council meetings
When a citizen complained to the Human Rights Commission in 2002 about a Māori prayer at a local council meeting his case was dismissed and his attempts to get legal address were also dismissed even before he could put his case in court;
In 2011 the High Court reinstated a Christian mortgage lending scheme as a charity after it was struck off the Register of Charities by the Charities Commission on the grounds that the interest-free mortgage scheme ‘advanced religion’.
The accommodation of religious belief thus fosters a central social role in New Zealand governance for religion. Government promotes its prominence, prestige and influence. Accommodation of religious belief is justified by arguing that it speaks to the cultural history of New Zealand, a viewpoint that has been critiqued in detail by Dr Bill Cooke. 3 Its supporters reject a strict separation of state from religious organisations, maintaining that a secular state denies any place for religion in the public arena. Some argue that is already the case despite the privileges listed above 4 . NZARH rejects these claims as overstated and self- serving.
NZARH does not wish to suppress the public discussion or debate of religious or belief doctrines. Any belief may be introduced into public political discussion and political decision-making at any time, and even adopted as government policy provided that it can be shown to be compatible with public reason, that is, consensus reasoning through parliamentary process uninfluenced by the dictates of religion or other personal convictions.
An example of this process was the recent adoption of gay marriage by the New Zealand parliament. Separation of state and religion or other belief Political secularism thus requires impartiality of the state and religious or other belief, not their entanglement. Nothing less than a clear separation between the two will ensure that people can pursue their religious or other beliefs without the undue influence of others. Accordingly, the NZARH supports:
- clearer and separation of state and belief
- prohibition of state support or funding for advancing the dictates of any particular belief (such as worship, practice, teaching, observance)
- impartiality of government towards belief with policies neither favouring nor disfavouring matters of belief
- no actual or apparent influence over, or identity with, any belief group
- equal respect for all beliefs with no-one belief considered more worthy of consideration than another
Legislation based on political consensus arises from the need, in a democracy, for citizens to act co-operatively, exercising restraint where the practice of their belief is contrary to the recognised public interest (e.g. public health and security, the rule of law, or the rights of others, including their right to freedom of belief).
This is the principle set out in the Universal Declaration of Human Rights, Article 18, which says that state can only prevent the practise (‘manifestation’) of belief when it threatens the public interest (‘prescribed by law and necessary for public safety, order, health, or morals or the fundamental rights and freedoms of others’) . This principle is replicated, although in more general terms, in BORA, section 5 (‘reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society’). We contend that the right to freedom of belief thus mandates limitations as well as freedoms regarding the manifestation of belief.
They are the foundation of the citizen’s ‘duty of civility’, the moral responsibility of both citizens and political officials, whatever their personal beliefs, to base government policy and action on the democratic interests of free and equal citizens. Public reason should be exercised by government officials in making policy and legislation, and by citizens in voting for their representatives.
Setting out the principles of separation in a constitution
The Constitutions of Australia and the United States prohibit the establishment of religion by the state. Professor Rishworth recognises s.13 of the New Zealand BORA as ‘founding an anti-establishment principle in relation to religion’. Separation of state and religious or other beliefs seeks to provide true equal opportunity for freedom of both sets of beliefs by favouring or disfavouring none. Conversely, entanglement of the state with such beliefs necessarily involves inequality and discrimination (intentional or otherwise) which could make New Zealand appear parochial, theocratic or even, to a degree, authoritarian.
The US Supreme Court has interpreted this prohibition widely, to mean ‘separation of church and state’. The clearest definition of the principles applying to separation of ‘church and state’ was enunciated by Justice Black, in the U.S. Supreme Court case of Everson v. Board of Education. 7 In considering the First Amendment of the US Constitution, which says Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, he argued that this meant separation of church and state. He described separation as including the following criteria:
1 The state cannot:
- set up a church;
- pass laws which aid one or all religions, or prefer one religion over another;
- force or influence someone to attend or not attend a church against their will;
- force someone to profess a belief or disbelief in any religion; or
- openly or secretly, participate in the affairs of any religious organization or group and vice versa.
2 No religious organizations or groups can openly or secretly, participate in the affairs of any government.
3 No person can be punished for:
- entertaining or professing religious beliefs or disbeliefs;
- attending or not attending church.
However more conservative Courts had narrowed this interpretation in recent times, allowing for a ‘benevolent neutrality’ that allows for increasing entanglement. The Australian High Court has interpreted establishment narrowly as meaning the institution of a national state-run religion. Neither of these approaches has been adequate to prevent state entanglement with religious activities and dictates, thus demonstrating that inserting a non-establishment clause and relying on the courts’ interpretation cannot be relied on. It follows, we argue, that separation must be clearly spelt out.
We note that Fiji, in a Draft Constitution currently under consideration at the time of writing, includes a declaration that Fiji is a secular state, and provisions that set out provision for separation in detailed legislative form. While reserving judgment on the detail of these provisions, we applaud this attempt to ensure the free adoption and exercise of disparate religious and non-religious beliefs and practices. In the attached appendix we have used these provisions as a model for specifying the principles we submit are necessary to ensure full and equal freedom of religion or belief.
It is passing strange that the Republic of Fiji is on the verge of formalising separation of church and state in its constitution, supported by the Catholic Church 10 and the Church of England, after a Constitutional Commission, staffed by eminent constitutional law academics recommended it, while separation, thus far, has not even been considered as part of the discussion for New Zealand’s future constitution!
By its future disengagement from religion or belief altogether the state would avoid the inevitable unfairness arising from discretionary government decision-making regarding eligibility for favourable (or unfavourable) treatment of disparate, and possibly contradictory, beliefs and their organisations. No-one would have a privileged access to the common resources of society simply because of ‘their [sectarian] conceptions of the good’: Professor Nickel expresses this democratic concept well:
The believer, the religion shopper, the founder of a new religion, the syncretistic new age seeker, the theologian, the doubter, and the atheist all find shelter in the broad basic beliefs [of civil society]’. We believe the current provision of freedom of religion and belief in the ICCPR and BORA, was based on the desire by those involved to promote national interests to retain state churches at the time of the of drafting the ICCPR. 15 It fails to specify separation of state and religious or other belief. It does not adequately provide for the full realisation of thedemocratic principles of secular government.
From NZARH’s perspective, clear recognition of the right to be free from the influence of any belief is required, so that state endorsement, funding or promotion of any particular belief should be prohibited.
For example, such an approach would question the definition of charity as including the ‘advancement of religion’. To be charitable under this category, under current law, an organisation’s purpose must be for the benefit of a religion with an aim to pass on the relevant religious faith to others. A religion must be based on a belief in a supernatural being, thing, or principle and acceptance of conduct in order to give effect to that belief.
We argue that this gives religious/supernatural beliefs an unfair advantage over other beliefs in being compulsorily subsidised by the taxpayer. We note the Human Rights Act prohibits discrimination on the grounds of non-religious belief, which includes, we argue, in this instance, freedom from the compulsion to subsidise religion through taxation. While NZARH could gain charitable status as an institution advancing education or perhaps as beneficial to the community, it has chosen not to do so. Neither have we sought special not-for-profit status as some kind of tax-exempt institution, for example, as a scientific institution, as we believe that taxpayers should not be supporting personal beliefs in this way.
New Zealand should be a Republic
Not only is a monarchy, even a formally ‘constitutional’ monarchy, an anachronism in 21 st century liberal democracies, the presence of a hereditary, aristocratic sovereign, determined by religious affiliation, is contrary to the principle of secularism, which more securely vests sovereignty in the people. There can be no true secular government when allegiance is owed to a sovereign.