Rex J. Ahdar, Religious Liberty in a Temperate Zone: a Report from New Zealand

• Citation: Vol. 21 No. 1
• Publication year: 2007
• topic: Civil Rights,Constitutional Law,Public Sector Law

RELIGIOUS LIBERTY IN A TEMPERATE ZONE: A REPORT FROM NEW ZEALAND

Rex J. Ahdar^*

INTRODUCTION

If a typical rugby-loving, suburban-dwelling New Zealander was asked by a pushy social scientist or pollster to take an annoying word association test, his or her response to the word "religion" might be a muffled yawn accompanied by an answer such as "irrelevant," "boring," or "outdated." Public interest, debate, or, for that matter, consternation over matters religious is rare-religion, church, and "all that God stuff" are not pressing concerns in the lives of most New Zealand citizens. In one sense, the widespread cultural disinterest in organized religion that typifies much of our history may be viewed as a positive thing. It can hardly be a cause for regret that, by and large, New Zealand has not witnessed the large-scale, bitter religious turmoil that has beset many nations.¹As John Stenhouse notes: "[W]hat is striking about New Zealand's past is not that religious bigotry existed but that it so seldom erupted into violence. By world standards, New Zealanders have handled their religious differences remarkably well."²The unrelated series of religious freedom and church-state controversies that erupted in 2006 was thus unusual and caught ordinary New Zealanders, as well as the media, social commentators, and politicians, rather unprepared.

New Zealand earned the wrath of some Islamic countries when two of its major city newspapers reprinted the Danish cartoons depicting the Prophet Mohammed.³That incident was followed by an outcry over the screening of an episode of South Park, a U.S. satirical television cartoon show, which showed a statue of the Virgin Mary menstruating.⁴Prime Minister Helen Clark denounced the screening of the episode as "quite revolting."⁵She insisted: "I think the critical thing is we show respect for other people's beliefs."⁶

By far the greatest controversy, however, has been the shadowy role that the Exclusive Brethren played in the indirect funding and support of the National Party, the principal opposition political party in the general election of 2005. The Exclusive Brethren allegedly spent $1.2 million-in the form of producing and distributing pamphlets, brochures, and other advertising material that was severely critical of the Labor-led coalition government-to help the National Party's campaign to win the election.⁷The National Party did not win, and when the fierce government attack and consequent media furor over the Exclusive Brethren's support erupted, the party sought to distance itself from this unpopular minority religious sect. Ultimately, Dr. Don Brash, the leader of the National Party, resigned,⁸stepping down on the eve of the publication of a book by an independent investigative journalist, which detailed the extent of the connection between the party and the sect.⁹

In this Article, I first wish to traverse briefly the political and constitutional foundations of church-state relations in Part I, before turning to the current legal protections for religious liberty in New Zealand. In Part II, I explore some contemporary religious freedom challenges as well as the emergent political controversies over the proper state response to religionists. The recognition of Maori spiritual concerns-as part of a broader government program to respect historic obligations owed to the Maori people-has proved a particularly fertile source of friction. The challenges created by the recent growth in religious pluralism-prompted by increased immigration from Asia and Africa-also pose some urgent and difficult questions for policy makers, human rights agencies, and courts. In Part III, I consider aspects of New Zealand's modern religious freedom record in light of the requirements of the

1981 United Nations Declaration on the Elimination of All Forms of

Intolerance and of Discrimination Based on Religion or Belief ("1981 U.N. Declaration").¹⁰I finish with some concluding comments.

I. THE FOUNDATIONS OF THE RIGHT OF RELIGIOUS FREEDOM IN NEW

ZEALAND

A. Non-Establishment and the Acknowledgement of Religious Liberty and

Equality

New Zealand has never had an established church.¹¹As the Supreme Court clarified at the turn of the twentieth century, "There is no State Church here. The Anglican Church in New Zealand is in no sense a State Church . . . and, although no doubt it has a very large membership, it stands legally on no higher ground than any of the other religious denominations in New

Zealand."¹²Initially, there was a modest preference for the Anglican Church, leading some to describe that Church as having a quasi-establishment role in the colony.¹³But, as Antony Wood observed, "The Anglican Church's pre- eminence was a shadowy affair in comparison with its position in the home country or in older established colonies of settlement."¹⁴New Zealand was settled as a British colony at the time when the principle of non-establishment was gaining favor in Britain and the disestablishment of the Church of England was being seriously debated.¹⁵

Concomitant with the early colonial government's policy of non- establishment was its distinct commitment to, and recognition of, the principles of religious equality and freedom. In the Imperial Instructions to Captain William Hobson, the Governor and Commander-in-Chief of the Colony of New Zealand, dated December 5, 1840, there was a requirement that the Governor not propose or give his assent to any ordinances impeding persons in the free exercise of their religion.¹⁶

The signing on February 6, 1840 of the Treaty of Waitangi-a founding document whereby the leaders of the Maori people ceded sovereignty to the British Crown in return for becoming British subjects and securing the continued protection of their lands¹⁷-witnessed the unexpected inclusion of an oral assurance concerning religious liberty and equality.¹⁸This assurance came about due to the initiative of the Roman Catholic Bishop Jean Baptiste François Pompallier.¹⁹In response to Bishop Pompallier's request for the protection of the Catholic Church by the British government, Governor Hobson, "with much blandness of gesture and expression, replied, 'Most certainly,' and proceeded to express his regret that the Bishop had not made known his wishes earlier, as in that event the provision 'would have been embodied in the treaty.'"²⁰The Reverend Henry Williams, the person charged with translating the agreement into the Maori language, wrote: "The Governor wishes you to understand that all the Maoris who shall join the Church of

England, who shall join the Wesleyans, who shall join the Pikopo or Church of

Rome, and those who retain their Maori practices, shall have the protection of the British Government."²¹The note was relayed to the Governor, who in turn passed it on to Bishop Pompallier, who read it and expressed approval.²²

Reverand Williams then read a carefully written statement to the assembly:

E mea ana te Kawana, ko nga whakapono katoa, o Ingarani, o nga Weteriana, o Roma, me te ritenga Maori hoki, e tiakina ngatahitia e ia. ("The Governor says the several faiths [beliefs] of England, of the Wesleyans, of Rome, and also the Maori custom, shall be alike protected by him.").²³

Despite some skepticism, this verbal assurance has taken on a renewed importance in the latter part of the twentieth century, sometimes being referred to, alongside the three written articles, as the "Fourth Article" of the Treaty.²⁴

This elevated contemporary characterization of Hobson's promise is misleading. In my opinion, the better view is that the guarantee was intended to have moral and not legal weight.²⁵

The earliest Parliamentary debates also underscore this desire for religious equality. The opening session of the first sitting day of Parliament, May 26,

1854, witnessed an unexpected debate on the question of an opening prayer.²⁶

James Macandrew, a Presbyterian from Dunedin, offered to fetch a nearby

Anglican parish minister to ensure there should be "an acknowledgement of dependence on the Divine Being."²⁷It was "clear to him that the House of Representatives, being the first embodiment of a New Zealand nationality, should be consecrated[,]" and so he proposed a motion to that effect.²⁸Dr. Walter Lee immediately offered a counter-motion that the House "be not converted into a conventicle, and that prayers be not offered up."²⁹A vigorous debate ensued. Some considered that such a prayer would seem "to involve the question of a State religion, the very appearance of which ought to be avoided by [the] House."³⁰Edward Gibbon Wakefield tried to assuage fears by pointing out that in America "where State religion was absolutely repudiated," the practice of opening the legislative houses by prayer was allowed.³¹By then, some members became impatient and sought to short- circuit potentially "fruitlessly prolonged" discussion.³²In response, Frederic Weld suggested an amendment: "That this House, whilst fully recognizing the importance of religious observances, will not commit itself to any act which may tend to subvert that perfect religious equality that is recognized by our Constitution, and therefore cannot consistently open this House with public prayer."³³

Wakefield worried that "New Zealand should be singular in this respect among the Christian countries of the earth"³⁴if proceedings began without a prayer. Dr. Walter Lee responded with doubts as to how the Jew could join with the Christian in a prayer and added: "[A]s the Constitution had very properly rid them of State religion, the House should take care how they voluntarily submitted to it."³⁵Weld's amendment was rejected by twenty votes to ten.³⁶The House then returned to the original motion and passed it with no vote count recorded. The text follows:

That, in proceeding to carry out the resolution of the House to open its proceedings with prayer, the House distinctly asserts the privilege of a perfect political equality in all religious denominations, and that...