A complaint against the Human Rights Commission has been laid by the New Zealand Association of Rationalists and Humanists, citing the HRC’s failure to address state sanctioned religious discrimination in primary schools.
Peter Harrison, President of the Rationalists said “It is about time that the Human Rights Commission take a long hard look at how it is dealing with complaints about the indoctrination occurring in state schools.”
Jeff McClintock (left) Peter Harrison (right)
School boards in New Zealand can approve evangelical organisations coming into the school to indoctrinate children without the knowledge or permission of parents. According to a 2013 survey about 40% of state primary schools operate some form of Christian Bible Class.
Every year the HRC receives many complaints about religious instruction in school, from children being forced to pick up rubbish if they opt out to parents being bullied and excluded from the school when the opt their children out of religious indoctrination classes.
While the HRC takes a strong and laudable stand against racism they have not made public statements about freedom of religion.
Harrison said that “the complaint simply requests that the Human Rights Commission live up to its charter, to become energetic, enthusiastic supporters of freedom of belief, to publicly endorse an education system that is safe and welcoming to all children, and to actively take an interest in ensuring schools observe the Human Rights Act and do not discriminate against children on the basis of religion.”
Human Rights Complaint
This document is a formal Human Rights Complaint as per the Human Rights Act 1993 against the Human Rights Commission on the basis of it’s failure to address state sanctioned discrimination on the basis of religion.
This complaint is primarily in relation to the practice of state sanctioned religious indoctrination conducted in state primary schools, the extensive complaints raised by this practice to the Human Rights Commission and the way the Human Rights Commission has failed to address the systemic discrimination that is clearly in evidence.
Who are we?
The New Zealand Association of Rationalists and Humanists are a voice for those with no belief, but also speak out in support of secular values such as freedom of belief. Human rights are part of the association objects.
Parents experiencing discrimination often approach us for advice. It has been our practice to refer people having difficulty with religious instruction in schools to the Human Rights Commission. In 2012 we began an effort to provide parents experiencing discrimination a support network. This evolved into the Secular Education Network, a informal network of mutually supportive parents.
This complaint is being made by the New Zealand Association of Rationalists and Humanists on behalf of all the parents who have had their human rights discrimination cases dismissed and ignored by the HRC.
Who are we complaining about?
We are complaining about the Human Rights Commission (HRC), the body tasked by the New Zealand Human Rights Act 1993 to advocate and promote respect for, and an understanding and appreciation of, human rights in New Zealand society.
What are we complaining about?
Our complaint is that the Human Rights Commission has not executed its responsibilities under the Human Rights Act. The practises of the Human Rights Commission have had the effect of minimizing complaints and isolating complainants while allowing the practices at the root of the discrimination to continue.
The primary functions of the Commission are:
to advocate and promote respect for, and an understanding and appreciation of, human rights in New Zealand society.
to encourage the maintenance and development of harmonious relations between individuals and among the diverse groups in New Zealand society.
to promote racial equality and cultural diversity.
The Commission has, in order to carry out its primary functions under subsection (1), the following functions:
to be an advocate for human rights and to promote and protect, by education and publicity, respect for, and observance of, human rights.
to make public statements in relation to any matter that may affect or infringe human rights (whether or not those human rights are affirmed in New Zealand domestic human rights law or international human rights law), including statements commenting on the position of the Government in relation to that matter.
to inquire generally into any matter, including any enactment or law, or any practice, or any procedure, whether governmental or non-governmental, if it appears to the Commission that the matter involves, or may involve, the infringement of human rights.
Prohibited grounds of discrimination. For the purposes of this Act, the prohibited grounds of discrimination are …
religious belief.
ethical belief, which means the lack of a religious belief, whether in respect of a particular religion or religions or all religions.
Inconsistency with the Education Act
Despite the Human Rights Act establishing that discrimination based on religion or with ethical belief is contrary to law the Education Act has provisions which give school boards the power to approve religious ‘instruction’ classes.
Religious instruction and observances in State primary schools
Notwithstanding anything to the contrary in section 77 or in section 65B of the Education Act 1989, if the school’s board for the school district in which the school is situated, after consultation with the principal, so determines, any class or classes at the school, or the school as a whole, may be closed at any time or times of the school day for any period or periods exceeding in the aggregate neither 60 minutes in any week nor 20 hours in any school year, for any class, for the purposes of religious instruction given by voluntary instructors approved by the school’s board and of religious observances conducted in a manner approved by the school’s board or for either of those purposes; and the school buildings may be used for those purposes or for either of them.
Some suggest that because a specific religion is not referenced in the legislation itself it is not inconsistent with the Human Rights Act. However, it is giving the school boards the power to decide what religions are given access to children. The last census confirmed that Christianity remains the dominant religion in New Zealand. Surveys of religious instruction in New Zealand Primary Schools show that the overwhelming majority of religious instruction programs, is of Christian religious instruction. Giving a school board the power to discriminate is simply discrimination by proxy. Schools should not be deciding which religion to promote any more than it decides the permitted ethnicity of students or the political view that will be promoted to students. If we do not permit the latter on what principle do we support the former?
The language of the law in the Education Act above does not require that parents provide informed consent. As a result parents are often not informed of religious instruction, are misinformed or actively deceived about the nature of the instruction, not asked for their permission.
When young children are opted out they are often sent to sit alone in isolation with little to do. It is an experience for the child functionally identical to punishment. Some schools have actually had children perform rubbish duties or other demeaning or degrading tasks. Parents who opt out have been met with hostility and been excluded from school events and activities.
Human Rights Commission Position and Approach
Susan Devoy once said “We live in a free country, where tolerance and freedom of religion are things the Human Rights Commission stands for.”
There is a long history of complaints against religious instruction in schools made to the HRC. While the HRC makes regular public statements about racial discrimination they have not made public statements condemning religious discrimination. HRC is conspicuous in its lack of public support for the victims of proselytizing in schools compared to its vocal opposition to racial intolerance and hatred.
Since the formation of the Secular Education Network, through all the media attention and support received from concerned parents and citizens, from our debates and legal challenges, through to our most recent experiences where HRC representatives have been sitting in the court room with us, we have not once seen a public statement from HRC that could be considered support of religious freedom.
So let us revisit what they should be doing according to the Human Rights Act and:
to advocate and promote respect for, and an understanding and appreciation of, human rights in New Zealand society.
The HRC has failed to promote tolerance of those with anything but the majority belief. It has not spoken out against the practices of schools violating freedom of belief.
to encourage the maintenance and development of harmonious relations between individuals and among the diverse groups in New Zealand society.
It has not spoken out against practices which exclude and ostracize children who are not members of the majority faith. It has not challenged the legal mechanisms in the Education Act which made the state sanctioned discrimination possible.
to promote racial equality and cultural diversity.
It has not been an critic of a education system which encourages segregation and intolerance towards those who are of a different belief.
to inquire generally into any matter, including any enactment or law, or any practice, or any procedure, whether governmental or non-governmental, if it appears to the Commission that the matter involves, or may involve, the infringement of human rights.
The HRC has had no interest in challenging the Education Act provisions which enable the discrimination. In fact it sat by with arms folded refusing to help as a private individual took the Government to court in an attempt to challenge this law.
The HRC has been silent on this issue. Its last word was its 2009 guidelines which did implicitly identified that there were issues with the practices in schools; but HRC waswas not explicit about the need for legal reform to address it, even though that is within their remit.
Mediation and Confidentiality
To date the advice given to those who were having trouble with schools discriminating against parents and children on the basis of religion was to first approach the school. If this could not resolve the issue they were told to approach the HRC. THRC would then have a mediation where the issue could be ‘resolved’.
As part of the mediation parents must agree to confidentiality. Technically this confidentiality only applies to the mediation itself, however is creates fear uncertainty and doubt about what can be said in public. The mediation process usually addresses only a single case of discrimination. While the HRC likes to talk about meeting their objective of resolving complaints through mediation the larger question of whether the mediation actually resolves underlying systemic discrimination is clear. It doesn’t. Case after case show there is a systemic problem. So what does the mediation process accomplish?
Isolation.
By ensuring each case is kept confidential and separate, allowing no communication between similar cases they HRC practises keeps parents isolated and powerless.
Many parents have been reluctant to complain because they felt they were the only ones to oppose religious instruction at a school. Often it turns out there are many parents, but they are isolated and afraid to speak out. The HRC approach has served to maintain this isolation and discourage parents from taking other paths of redress.
Suppression.
Most people take confidentiality agreements seriously, and so once they enter one they commit to the HRC as a venue to resolve their issues. This has the effect of suppressing public discussion of the issue. Parents complaining believe that they may be able to change school practises. While parents may find superficial resolution of their individual complaints the practises continue unabated.
Damaged School Relationships.
Making a complaint to the HRC is a huge risk for parents. Schools are entrusted to look after our children. While the mediation process is ‘confidential’ the parents concerned are identified to the school. The HRC does not investigate and communicate with schools on behalf of parents to improve practises and prevent religious discrimination while protecting the complainants. Instead the HRC required that parents first talk to a school about the discrimination before complaints are actioned. In our experience parents approaching the school can lead to being excluded from school events and community and their children being treated in a hostile manner, including being questioned by teachers. The assumption that schools will act in good faith in the interests of children is not helpful.
Asymmetric Relationships.
Mediation is not a negotiation between parties of equal power. School board have the power to conduct religious instruction legally without informing parents and without gaining their permission. The asymmetric relationship of school and parent means parents have little power. Parents may reach an agreement about their own child but they are powerless to resolve the systemic discrimination experienced.
Investigation and Research
Given the responsibilities of the HRC and the volume of complaints received every year by the HRC that require mediation, it might be expected that the HRC would conduct research. The HRC has undertaken no interest in researching the systemic causes of discrimination on the basis of religion. The only research conducted has been performed by external agencies, including the Secular Education Network and more recently Helen Bradstock. The HRC has left researching discrimination to others.
The responsibility of monitoring religious instruction has been disowned by the Ministry of Education, Education Review Office, and the HRC. No Government body is currently collecting data about the number of schools participating, the practises employed, the material being taught, whether the materials themselves are discriminatory, or whether the practises are actually compliant with the law.
We contend that the HRC as the body responsible for Human Rights in New Zealand has an obligation to investigate and collect data on practises which are clearly generating a sizable number of complaints. The power to perform this investigation is cited in the act establishing the Human Rights Commission.
Dismissing David Hines and Tanya Jacob Complaints
Some time ago representatives of the Secular Education Network met HRC to discuss their concerns. During this meeting it was suggested that SEN should gather evidence if they wished to present a case for challenging the law.
Since this meeting David Hines led an effort to collect together the experiences of multiple parents into a single complaint. Several parents worked with David Hines and Tanya Jacob in their combined complaint.
The real target of this complaint was not the individual schools involved, but rather the legislative environment which permits and endorses religious discrimination in public primary schools. Rather than the HRC being an energetic supporter of religious diversity and freedom they quietly dropped this complaint. The Ministry of Education has failed to deliver new guidelines since HRC dropped the complaint.
The real question here is why an external group like SEN is needed to identify and address this issue at all. The HRC is tasked with evaluating and correlating complaints to identify areas of systemic discrimination. It appears that HRC is simply unwilling to execute its mandate.
Failure to support Jeff McClintock
Perhaps the best documented case of religious discrimination was that of Jeff McClintock who approached the Secular Education Network shortly after it formed. After years of attempting to negotiate with the school to modify their practices to respect the New Zealand Human Rights Act, and the impotent intervention of the HRC, the school remained steady in their commitment to religious indoctrination of children.
As a result Jeff filed a court case challenging the school and the legislation that gave them the legal basis for discrimination. HRC will no doubt be fully aware of the details based on McClintock’s affidavits that they received by being an interveners in the litigation.
Despite years of detailed evidence being gathered McClintock his lawyer failed to make submissions in the appropriate time frame and therefore the case will not proceed. While the HRC are not responsible for the failure of the lawyer to proceed, this case is both a symptom and example of the HRC’s failure to fight against state endorsed religious discrimination.
It is a symptom because McClintock tried to follow the process with the HRC and it failed. The HRC was unable or unwilling to take the issue further after the school refused mediation. Because of the amount of time the complaint process takes children have often moved onto other schools long before a resolution is reached. This means that the practices at these schools persist. Independent citizens are risking their own welfare to challenge discriminatory laws.
It is an example of how the HRC is failing to execute its core mission; to protect and promote human rights. It was well aware of the case, having joined it as an intervener but failed to take a position or provide any assistance. McClintock took on significant financial risk in order to take on a case for the public good, to support freedom of belief for all children. As a result he now faces a possible award of costs exceeding $20,000.
The HRC to its shame watched with arms folded, saying nothing. They provided no hint of support or assistance. They are no doubt aware of the internal documents inside the Ministry of Education citing the practise of religious instruction being contrary to the Human Rights Act but have been resolutely provided no support for parents like McClintock who were prepared to put their own financial interests on the line.
A Solution?
Religious discrimination in state primary schools is not one event experienced by one victim, but a systemic issue experienced by many innocent children and parents over decades. It is enabled by the New Zealand Education Act. It is a failure of the very systems and bodies intended to protect our human rights. We do not expect a resolution through quiet confidential mediation. Our position is clear. New Zealand needs an effective organisation promoting and protecting freedom of belief in New Zealand.
Our solution?
That the Human Rights Commission live up to it’s charter, to become energetic, enthusiastic supporters of freedom of belief, to publicly endorse an education system that is safe and welcoming to all children, and to actively take an interest in ensuring schools observe the Human Rights Act and do not discriminate against children on the basis of religion.
The HRC needs to work with and support those striving for better human rights rather than maintaining cold, silent, objective detachment.
Yours sincerely,
Peter Harrison
President,
New Zealand Association of Rationalists and Humanists