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Griffiths, David H --- "Defining the secular in the New Zealand Bill of Rights era: Some cases and controversies" [2011] OtaLawRw 4; (2011) 12 Otago LR 497

Last Updated: 1 April 2013

Defining the “Secular” in the New Zealand Bill of

Rights Era: Some Cases and Controversies

David H Griffiths*

I Introduction

After a brief altercation between the Catholic Church and the New Zealand Human Rights Commission in 2010, the Church succeeded in securing a promise from the Race Relations Commissioner Joris de Bres to remove certain words from a document issued by the Commission for public discussion.1 The draft chapter on “Freedom of religion and belief”, which foreshadowed an update to an earlier general report on human rights in 2004, contained the following words:2

New Zealand is a secular State with no State religion, in which religious and democratic structures are separated. In legislation and policy, the State respects freedom of thought, conscience and religion. There are few constraints on the freedom to manifest one’s religion or beliefs. Matters of religion and belief are deemed to be a matter for the private, rather than public, sphere.

Representatives of the Catholic Church argued that the assertion that New Zealand was a “secular State” was “contradicted by official statistics which show that a majority of New Zealanders still described themselves as having a religious affiliation in the census”.3 The country’s Catholic bishops cavilled further with the statement that religion was a matter for the private sphere, saying that it “undermines the right of churches to seek to influence public opinion and political decision making”. The Commissioner went on the defensive, responding that there was no intention to “privatise religious belief”, and that the statement was only meant to signify that “state direction” of private belief was absent

* PhD, University of Auckland; Postdoctoral Fellow, AUT University, Auckland (2011). This article is based on a paper given by the author on

14 July 2011 at Melbourne Law School as part of the conference styled: “Law and Religion: Legal Regulation of Religious Groups, Organisations and Communities.” I am grateful to John Witte, Jnr and Paul Vincent for comments on earlier drafts.

1 See Simon Collins “Church forces ‘secular NZ’ retreat” New Zealand Herald

(14 July 2010).

2 New Zealand Human Rights Commission “Freedom of religion and belief:

Draft for discussion” (March 2010) <


Religion_and_Belief_1_.pdf >.

3 Some 58 per cent of the population continue to affiliate with a religion

according to census data, with 32 per cent declaring “no religion”. See

Simon Collins “Church forces ‘secular NZ’ retreat” New Zealand Herald

(14 July 2010); for the official statistics, see Statistics New Zealand Ethnic

Group (Total Responses) for the Census Usually Resident Population Count,

2006 <


in New Zealand. Regarding the “secular State” complaint, de Bres undertook that he would “probably” remove the term from the final version of the chapter.4

In this article I wish to focus on the problematic word “secular” that provoked this recent skirmish in the long-running question of the proper relationship of the New Zealand state with religion. There can be no doubt that the country has never had an official state religion,5 but the extent to which it can be accredited the “secular” moniker is open to debate. While it is indisputable that, as a general observation, religious belief is a matter for the private sphere, and that democratic structures are separate from religion in the modern New Zealand polity, the situation is far more complex than the somewhat glib statement of the Human Rights Commission attests. I will conclude that New Zealand is indeed a “secular State”, but that it is an uneven, or perhaps permissive, version of one when compared with the more doctrinaire “secularist” polities that exist, or have existed, on the world stage.

As I shall endeavour to explain, the legal concept of the “secular” is amenable to several interpretations that are equally valid linguistically and which depend on constitutional and historical factors that are peculiar to the polity in question. These differences can have contrasting effects when applied to legal disputes. It is therefore, I suggest, worthwhile here to make a conscious effort, supported with reasons, to argue for which interpretation ought to prevail in the New Zealand legal landscape. As I shall illustrate below, the “secular” principle has in fact animated court decisions and been used in legislation to demarcate the boundaries between church and state in this country, albeit more often in the distant rather than the recent past. Whether early iterations of the concept are still valid today is a moot point. As society becomes more religiously diverse due in part to immigration from non-Christian countries,6 and

4 Simon Collins “Church forces ‘secular NZ’ retreat” New Zealand Herald

(14 July 2010).

5 See Carrigan v Redwood [1910] NZGazLawRp 192; (1910) 30 NZLR 244 (SC), at 252, for an early judicial

affirmation of this point. Obvious comparisons can be made with, eg:

Iran, where the Constitution establishes Shi’a Islam as the state religion

and permits limited tolerance for some religious groups (eg, Christians

and Jews), but Baha’is and Kurds are regarded as apostates from Islam

and their civil rights are severely circumscribed. See Abdullahi An-Na’im

“Religious Minorities under Islamic Law and the Limits of Cultural

Relativism” (1987) 9 Hum Rts Q 1, at 11-13; and the United Kingdom,

where, for example, bishops still sit in the House of Lords and state schools

are required (under the School Standards and Framework Act 1998 (UK),

s 70) to make daily observances of a “Christian character” (albeit with

an opt-out for schools with multi-faith rolls); for a good summary of the

formal English religious establishment, see Peter Cumper “The United

Kingdom and the U.N. Declaration on the Elimination of Intolerance and

Discrimination Based on Religion or Belief” (2007) 21 Emory Int’l L Rev


6 For example, the 2006 census puts the current number of Muslim residents

in New Zealand at 36,000, still less than 1% of the national population of 4

minority religionists begin to assert their rights, it will, I believe, become necessary to revisit past attempts to define the “secular State” and to ask whether they are coterminous with modern notions of human rights law, in particular with the religious freedom guarantees codified by ss 13 and

15 of the New Zealand Bill of Rights Act 1990 (BORA).7

The draft statement at the start of this article seems to imply that this country’s conception of the secular state is compliant with BORA’s guarantees regarding religious freedom, and by extension with the international treaty commitments which ss 13 and 15 were intended to implement.8 The assertion that the New Zealand “secular State” is one that “respects freedom of thought, conscience and religion” seems to say as much. This article will attempt to reconcile these two sets of constitutional values by analysing two contemporaneous controversies in which the “secular” argument was deployed by some to attack the eventual resolution of each.

In the first controversy, two women of Afghan origin but resident in New Zealand requested that they be permitted to testify as witnesses for the prosecution in a criminal trial while wearing burqas (a veil worn in some Islamic countries that covers the face save for an opening for the eyes).9 The women claimed that requiring them to remove the veil in front of all those present at the Auckland District Court would violate s 15 BORA, which guaranteed their right to practise their religious beliefs in public. In a careful judgment, Judge Lindsay Moore determined that the women were motivated by sincere religious beliefs and that to require them to unveil before everyone in the courtroom would not be in the “interests of justice”.10 Despite arguments from the defence that an exemption for the women from the normal rules of courtroom testimony would be to “create a separate justice system for Muslims in what is essentially a secular society”, he ordered that they could give evidence behind a screen where only the judge and counsel could

million, but nonetheless a rise of 52% since the 2001 count. For discussion of trends in religious diversity in New Zealand, see William Hoverd “No Longer a Christian Country? – Religious Demographic Change in New Zealand 1966–2006” (2008) 23 New Zealand Sociology 41.

7 Section 19 BORA also guarantees protection against discrimination by state actors on the grounds of religion or ethical belief; see s 21(c) & (d) Human Rights Act 1993. For the wordings of ss 13 & 15, see the text below.

8 See, especially, art 18 International Covenant on Civil and Political Rights

999 UNTS 171 1966, (entered into force 23 March, 1976) (ratified by

New Zealand 28 December, 1978) [ICCPR]. Sections 13 and 15 BORA use

much the same terminology as the ICCPR. BORA expressly affirms the

international law origins of the rights contained within the statute; see

recital (b) to BORA’s long title.

9 See E Binning “I’d rather kill myself than remove veil, woman tells court”

New Zealand Herald (27 October 2004). For a useful depiction of female

Islamic religious attire, see BBC News “In graphics: Muslim veils” <www.


10 Police v Razamjoo [2005] DCR 408 (DC), at [108].

view their faces.11 While this arrangement arguably preserved the defendant’s fair trial rights, much debate in the public arena centred around whether a concession ought to be made by the “secular State” to a foreign religious practice which, moreover, grated against local norms concerning gender equality. As media commentator Brian Rudman put it:12

[W]hen a fundamentalist minority within a minority tries to impose its beliefs on our free and secular justice system, it’s time to remind its members why they sought refuge in Auckland. Wasn’t it to get away from the medieval mullahs of Kabul and their warped ideas about the lowly place of women before God and society?

Another journalist, the former MP Michael Laws, characterised the women’s request as effectively insisting that “secular New Zealand adapt to their sacred madness”.13

In the second controversy, Hagley Community College, a state secondary school situated in Christchurch, procured public funds in

2003 to construct a special prayer room for the large number of Muslim students on its roll.14 Initially, Education Ministry officials had encouraged the school to make use of existing buildings for this purpose, but when it became apparent that none were available an architect was commissioned and a purpose-built structure (including specialised ablution facilities and physical divisions for the sexes in the prayer area, as required by Islamic law) was completed at the cost of $121,000. What followed was a sequence of events that would not look out of place in an episode of Yes Minister.15

When questioned in Parliament as to the propriety of this expenditure,16 the then Education Minister, Labour MP Trevor Mallard, condemned the Hagley Board of Trustees for engaging in spending in contravention of the “secular provisions of the Education Act 1989”.17 This was because, in his view, the board had used funding for non-educational purposes and for the benefit of a “particular religious group”. It later transpired

11 Note that this was a judge-alone trial. The accused was later convicted

of insurance fraud in a trial conducted under these arrangements.

12 B Rudman “A cover-up the courts should ban” New Zealand Herald (29

October 2004).

13 M Laws “Row over burqa reveals more than was intended” Sunday Star-

Times (1 November 2004).

14 See “Controversial mosque opens” New Zealand Herald (4 November

2003). The school had 130 mainly Somali and Afghan refugees out of a

total roll of 1,890.

15 Yes Minister was a BBC television comedy show running from 1980

–1984, in which a well-intentioned, though fundamentally self-serving,

minister of the British government was continually trapped in a series of

humiliating situations thanks to the machinations of bureaucrats in his

own ministry; see <>.

16 See Order Paper 366 (10 February 2004), Rodney Hide MP to Minister of

Education; and (23 March 2004) 616 NZPD 11842.

17 Letter from Trevor Mallard MP to Rodney Hide MP; reported in “Mallard

backdown on Muslim prayer room” New Zealand Herald (5 March 2004).

that Mallard was unaware that his own ministry had approved the expenditure, and the local Labour MP had in fact cut the ribbon when the “mosque” was opened. Mallard responded to this revelation by apologising to the school board and, remarkably, suggesting that both he and the board should receive an apology, presumably from Education Ministry officials, for the “embarrassment” they had suffered.

This was not the end of the matter, however. The opposition ACT Party MP, Rodney Hide, picking up on the minister ’s earlier stated opinion that the spending was illegal under the “secular provisions” of the Education Act, wrote a formal letter to the Auditor-General requesting an investigation. The office of the Auditor-General, however, differed with both Hide and Mallard and reported back to Hide that there were “no secular provisions in the Education Act 1989 pertinent to the concerns you have raised”.18

I will argue that the “Burqa Trial” and the “Hagley Mosque” sagas were both resolved in a manner that was plausibly consonant with New Zealand’s secular tradition and also that they did not offend the modern statutory rules, including BORA, that governed their resolution.

I shall divide my argument into three parts. First I will lay out some plausible definitions of “secular” as that word is understood in countries within the liberal democratic fold and to which New Zealand often turns when attempting to tease out the meaning of the relatively untested religious freedom guarantees in BORA. I will contend, as others have done,19 that the term “secular” can be used to describe at least three fundamentally different types of church-state relationship: one that envisages a radical rooting-out of religion from all corners of the public sphere; one that is simply indifferent to religion; and one that is more permissive and does not hesitate to remove burdens on religious believers while going about their public or private business – so long as this does not unduly hinder the enjoyment of rights held by other citizens or undermine important public-policy goals. I will then consider what legal and other values contributed to the basically “religion-friendly” resolution of the Hagley Mosque and Burqa Trial controversies. This will involve a brief traversing of historical materials predating the enactment of BORA in which I assess which of the three types of “secularism” provides a better fit with New Zealand constitutional culture. I will

18 Letter from Pania Grey, Sector Manager, Office of Auditor-General, to Rodney Hide MP (20 April 2004); on file with author. This document was kindly supplied to the author by the office of Rodney Hide MP.

19 I borrow heavily from the following discussions of the different brands of secularism (and the significance thereof) in: Iain Benson “Notes Towards a (Re)definition Of The ‘Secular ’” (2000) 33 UBCL Rev 519 [Benson “(Re) definition of Secular”]; Wilfred McLay “Two Concepts of Secularism” (2001) 13 J Pol’y History 47 [McLay “Two Concepts of Secularism”]; Jennifer Westerfeld “Behind the Veil: An American Legal Perspective on the European Headscarf Debate” (2006) 54 Am J Comp L 637 [Westerfeld “Behind the Veil”].

conclude that it is to the final version of the casting of the secular principle that New Zealand belongs, and which therefore ought to be regarded as affirmed by ss 13 and 15 BORA.

II Three conceptions20 of secular(ism)

A glance at the Shorter Oxford English Dictionary (SOD)21 reveals that the concept of “secular(ism)” has a long history and has been ambulatory in its meaning over time. One of its original English meanings (indeed, the first mentioned in the dictionary) refers to those members of the clergy not belonging to a secluded “monastic or other order”, but rather those living in the outside world (in Latin, “saecularis” – the “world” or the “times/age”). The second definition describes “secular” as “belonging to the world and its affairs as distinguished from the Church and religion; civil, lay; non-religious, non-sacred”. Another use of the term is as follows: “(of a school or education) excluding religious instruction; not promoting religious belief.” Finally (although there are other definitions), another meaning, listed fourth, is: “Pertaining or adhering to the doctrine of secularism.” The word “secularism” in turn is described, inter alia, as: “The view that religion and religious considerations should be deliberately omitted from temporal affairs.”

It is interesting that the noun “secularism”, which denotes an active policy of expunging the religious from the cognisance of temporal government is, according to SOD, merged here with the more ambiguous adjective “secular”. This creates some confusion in my view, thereby illustrating the basic semantic contestability of the term. Arguably, a “secular State” (as opposed to a secularist one) could be one that respects people’s religious activities within the public, temporal, world and tries, where possible, to avoid influencing their autonomous religious choices

– thus preserving the “secular” state’s non-involvement in religion. To give an example, a secularist state might, when enacting a law banning the use of alcohol by minors, create a flat prohibition where nobody under the age of, say, 18, could drink alcohol in any circumstances. Yet another version of a secularist state, one that is increasingly rare with the demise of countries with official atheistic policies (such as the former Soviet Union), might decide to ban only the consumption of wine in religious ceremonies, while allowing it to be used by persons over 18 in all other situations.

20 In this article, I adopt the distinction between “concept” and “conception” regarding human rights values. See Ronald Dworkin Taking Rights Seriously (Duckworth, London, 1978), at 134-136. As Dworkin explains, ideas (or concepts) such as “secular(ism)”, “religious freedom”, “free speech”, and so on, are typically recognised by all major liberal democracies, but they will inevitably be attributed different legal content (or “conceptions”) in different cultures and societies, depending on historical factors and variances in constitutional structures.

21 Shorter Oxford English Dictionary: on historical principles (6th ed, Oxford

University Press, Oxford, 2007) [SOD].

A secular state, on the other hand, which regards itself as forbidden from intruding on religious affairs except where absolutely necessary, might consider itself bound to create an exemption for minors consuming small quantities of wine in religious ceremonies. Returning to the draft statement by the New Zealand Human Rights Commission above, it is plausible to say that a secular state of this sort effects a more nuanced and real separation of “religious and democratic structures” and respects the public/private distinction better than one that simply formulates religion-blind policies. It is certainly more neutral towards religion than the secular state par excellence, which crafts laws with the intention of burdening religious activities specifically.

This final version of the secular state is more in line with classical conceptions of the term, whereby a division of activities was envisaged on Earth between the civil and ecclesiastical authorities, a question that was the subject of intense debate for many centuries.22 In the 19th century, as a by-product of weakening links between the Established Anglican Church in England and the state, the term “secular” came to mean something more like “non-sectarian”;23 or in other words, the term envisaged that the “secular State” ought to be not one that ignores religion, or prefers one religion above all others, but rather is even- handed in its dealings with religion and tries to avoid influencing the choices of citizens in opting for one religion (or indeed no religion) in favour of another. By contrast, the other version of the “secular” (read “secularist”) state, which has come into being even more recently in time,24 depicts the modern state as being one that is formally neutral25 or “religion-free”: ie, as a polity that completely ignores the sacred realm in formulating its policies.26

22 For a lively discussion of how the pre-modern power struggle between religious and secular rulers transmuted over time into a principle whereby the “secular State” was charged with respecting individual conscience in religious matters, see Steven D Smith “Book Review: Discourse in the Dusk: The Twilight of Religious Freedom?: Religion and the Constitution

– Volume 2: Establishment and Fairness. By Kent Greenawalt” (2009) 122

Harv L Rev 1869; see also Charles Taylor “What Does Secularism Mean?”

in Charles Taylor Dilemmas and Connections (Belknap Press, Cambridge,

Massachusetts, 2011) [Taylor “Secularism”], at 303.

23 For this point, see Benson “(Re)definition of Secular”, above n 19, at 520:

“Parse historically the word ‘secular ’ and one finds that secular means

something like non-sectarian or focused on this world, not ‘non-faith.’”

24 Benson is deeply critical of this recent transition in meaning, which he

considers risks robbing the public square of all religious and non-religious

faith systems in favour of whatever values are considered important by

mainstream ideology. Ibid, at 538.

25 For a description of the distinction between “formal” and “substantive”

neutrality vis-à-vis religious freedom, see Douglas Laycock “Substantive

Neutrality Revisited” (2007) 110 W Va L Rev 51.

26 Charles Taylor describes this type of secularism as one that has abandoned

the notion that the world is divided into competing sacred and profane

realms and replaces it with a “conception of social life in which the

As seen in the communion-wine example above, the differences between these species of “state secularism” are obviously important. This is especially so when a choice has to be made by state actors when interpreting legal norms, such as BORA’s religious freedom guarantees, or indeed when interpreting the actual term “secular” where it has been used expressly in legislation. From the discussion above, I suggest that, while the definitional spectrum is probably infinite,27 one could define a “secular State” in three ways to assist the discussion here:

1. A state that suppresses religion (a “fundamentalist secular” state);

2. A state that refuses to acknowledge religion in any of its activities

(a “positive secular” – or “formally neutral” – state); or

3. A state that does not favour the religious beliefs of any particular group, but which attempts to avoid acting in ways that hinder religious activities which do not harm others or threaten important public policy goals (a “negative secular” – or “substantively neutral” – state).

The question then becomes: which type of secular state is New Zealand, if indeed it is one at all? In the next section I propose to demonstrate that it falls within the third, permissive, category of “negative” secularism, and possibly, as I shall relate further below, into a fourth category, bordering on favouritism towards religion and not qualifying as secular at all. I shall do this by considering what factors drove the resolutions of the Burqa Trial and Hagley Mosque controversies. This will involve delving into past controversies in New Zealand going back to the founding of the modern state in the 19th century. I will also resort to consideration of analogous cases from foreign jurisdictions where the secular concept has received a judicial, or legislative, airing – often to show that the secular concept, as it is drawn in places such as Turkey and France, ought not be held up as providing guiding principles for use in the New Zealand context. Rather, these comparisons will show that the boundaries of the secular state in any given polity will be demarcated by factors peculiar to the unique historical, constitutional and cultural contours of the country under consideration.

III The resolution of the Burqa Trial and Hagley Mosque sagas in historical and comparative context

A The Burqa Trial: “free exercise” of religion in New Zealand

I shall consider first Police v Razamjoo,28 in which the Auckland District Court permitted an exemption from the common law rule of witness testimony in criminal trials that oral evidence ought to be given in

‘secular ’ was all there was”. Taylor “Secularism”, above n 22, at 304.

27 For a more nuanced typology, see Benson “(Re)definition of Secular”,

above n 19, at 530, where he divides my type 3 into three further categories,

including one in which the “secular” state “may act to create conditions

favourable to religions generally”. Westerfeld’s typology is less discerning

than mine, dividing secular states into “fundamentalist” and “liberal”

ones. See, generally, Westerfeld “Behind the Veil”, above n 19.

28 Police v Razamjoo [2005] DCR 408 (DC) [Razamjoo].

“open court”, or in full view of the other persons involved in the trial process (ie, the accused, counsel and triers of fact), as well as before the general public as a facet of transparent democratic government. Recall that Judge Moore allowed two Afghan witnesses at this criminal trial – who wished to wear burqas – to testify behind a screen in order to preserve their modesty, as mandated by their religious beliefs, so that only the judge and counsel could see their faces. They were required to remove their burqas but permitted to wear veils covering their hair. The witnesses claimed that this was necessary to protect their rights under s 15 BORA, which provides: “Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.”

The defence argued that no concession should be made to the witnesses because to obscure their faces would inhibit cross-examination and thus detract from the fairness of the trial for the accused, a right, like the witnesses’ rights under s 15, that is guaranteed by BORA.29

In an interesting aspect of the case, the judge accepted as persuasive prosecution submissions based on overseas social science research to the effect that viewing facial demeanour was not essential for assessing the truth or falsity of claims made during cross-examination.30 The judge did not, however, grant the witnesses’ wish in full, insisting on the limited exemption described above, because to allow them to testify fully veiled would be too great a departure from normal rules and would damage public confidence in the judicial system.31

29 Section 25(a) BORA guarantees those charged with offences the “right to a fair and public hearing”; and s 25(f) stipulates that those charged with an offence have the right to “examine the witnesses for the prosecution and to obtain the attendance and examination of the witnesses for the defence under the same conditions as the prosecution”. Note that, unlike the Sixth Amendment to the US Constitution, which recognises that every accused has the right to be “confronted with the witnesses against him”, BORA affirms no such right of confrontation. For the judicial evolution of the Sixth Amendment, see Coy v Iowa [1988] USSC 154; 487 US 1012 (1988) and Craig v Maryland [1990] USSC 130; 497 US 836 (1990).

30 See Razamjoo, above n 28, at [76]; citing, among others, Olin Guy Wellborn III “Demeanor” (1991) 76 Cornell L Rev 1075. Wellborn concluded from his analysis of clinical trials carried out on volunteers that: “Taken as a whole, the experimental evidence indicates that ordinary observers do not benefit from the opportunity to observe non-verbal behaviour in judging whether someone is lying. There is no evidence that facial behavior is of any benefit; some evidence suggests that observation of facial behavior diminishes the accuracy of lie detection.” Ibid, at 1088. For further discussion of this aspect of the trial, see David Griffiths “Pluralism and the Law: New Zealand Accommodates the Burqa” (2006)

[2006] OtaLawRw 8; 11 Otago LR 281 [Griffiths “Burqa”], at 295-300.

31 See Razamjoo, above n 28, at [109]. In this regard, the Court accepted the

defence argument (see ibid, at [60]) that in a free and democratic society

it was of “‘fundamental importance that justice should not only be done,

Most relevant to the discussion in this article was the submission that the “secular court system” ought not to make any concessions towards religious practices. The defence’s attack was two-pronged. First, it was claimed that wearing a full-face veil was not required by Islam and was in fact a mere cultural accretion forced upon the women as a form of patriarchal social control in their native Afghanistan.32 Second, even if it was accepted that wearing the burqa was a religious practice under s 15, the secular nature of New Zealand’s court system (and New Zealand society generally) meant that an exemption ought not to be made to normal courtroom procedures – a system that had been set up over the centuries to further the inherently rationalistic pursuit of truth. Such a system, the argument went, ought not to be corroded by granting a concession to an essentially irrational religious practice, especially one which, as alleged by the defence, involved a custom that raised gender-equality concerns (itself a cherished norm of New Zealand culture33).

Judge Moore gave short shrift to the complaint that wearing a burqa ought not be counted as falling within the scope of the s 15 right to manifest religious belief and therefore not worthy of respect in the courts.34 Citing US authorities, he explained that the women’s sincere,

but should manifestly and undoubtedly be seen to be done’ (R v Sussex Justices ex parte McCarthy [1923] EWHC KB 1; [1924] 1 KB 256, 259)”. To allow the witnesses to testify in burqas (a garment that the judge described, at ibid [109], as “effectively a hood or mask”) would, in the judge’s opinion, have offended this basic principle.

32 See ibid, at [57] & [59], where the defence argued that the “Koran did not suggest that it was compulsory for women to cover themselves or be kept apart from men but requires full participation of women in society”, and that the burqa “has no real historical spiritual relevance to their own religion and indeed is a re-invented artefact”.

33 New Zealand was the first country to grant women the right to vote (see Neill Atkinson Adventures in Democracy: A History of the Vote in New Zealand (University of Otago Press, Dunedin, 2003), at 235) and prides itself on being at the forefront in global efforts to promote equality between the sexes. See Gordon McLauchlan “Better maybe to burqa off” New Zealand Herald (30 October 2004): “Whether [the witnesses in Razamjoo] should be able to wear burqas in situations where the rest of us are required by law and convention to bare our faces raises other issues that involve the gender wars that have been hard fought in this country.... Women have thrived in this country with successes over a century in winning the right to vote, to own property, to escape from unsatisfactory marriages, to retreat from abusive relationships, to be free from sexual intimidation in the workplace and, in almost every case, to wear clothing they choose without being oppressed for it or fearful of the consequences.”

34 BORA adjudication usually conforms to a two-step analysis. First, the courts will adjudge whether a limit imposed by government (often by statute, or, as here, by the common law) on an activity truly raises human rights considerations – the “scope” enquiry. Second, if the courts consider that a prima facie breach of a right has occurred they will then assess whether the limit is a reasonable one – an enquiry mandated by

subjective belief that they were required by their understanding of Islam to cover their faces in public was sufficient to pass this threshold step in BORA adjudication. To do otherwise, explained Judge Moore, would entail entering a “theological thicket”,35 an enquiry that would require the Court to make fine-grained distinctions regarding disputed questions of faith.

For this principle of judicial non-involvement in assessing faith-claims, Judge Moore could perhaps have profitably referred to 20th-century New Zealand jurisprudence predating BORA where state actors were asked to make assessments of this sort. In the 1910 case of Carrigan v Redwood,36 for example, it was suggested (in tones similar to the defence claim in Razamjoo that wearing a burqa was not a valid religious practice) to the then Supreme Court (now the High Court) that the Catholic custom of praying for the dead was a mere superstition that ought not to be tolerated in the predominantly Anglican country. Carrigan concerned a contested will in which a testatrix had bequeathed half of her property to be held in trust and ordered that it be expended on “masses announced publicly from the altar and that the prayers of the people of the Palmerston North Roman Catholic Parish be asked for me”.37 In response to the submission that the bequest rested on false religious (ie, Catholic) dogma and ought therefore to be declared void, the Court rejected this claim, replying:38

[T]he secular Court must act upon evidence of the belief of the members of the community concerned. The exclusiveness, the vagueness, or the self-sufficiency of principles religiously held by particular creeds, whether they rest on dogma, or doctrine, or on conscience, cannot exclude those

s 5 BORA, which provides in relevant part that the “rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Section 4 BORA declares that the courts may not “strike down” or disapply statutes (thus preserving parliamentary sovereignty). However, the courts have used their interpretive powers to read down offending statutes so that they do not infringe on human rights, or (more controversially) to issue declarations of inconsistency when this is not possible. In Razamjoo, the Court was dealing with a common law rule, so there was no issue as to whether primary legislation should govern the outcome. On the workings of BORA, see, generally, Andrew Butler & Petra Butler The New Zealand Bill of Rights Act: A Commentary (LexisNexis NZ Ltd, Wellington, 2005), at part 2.

35 Razamjoo, above n 28, at [66]; quoting Md & Va Eldership v Sharpsburg

249 Md 650 (1968), and United States v Ballard [1944] USSC 72; 322 US 78 (1944): “Men

may believe what they cannot prove. They may not be put to the proof

of their religious doctrines or beliefs.” For insightful commentary on

the “sincerity” enquiry as that concept has developed in the US, see

Kent Greenawalt Religion and the Constitution: Free Exercise and Fairness

(Princeton University Press, New Jersey, 2006), at ch 7.

36 Carrigan v Redwood [1910] NZGazLawRp 192; [1910] 30 NZLR 244 (SC) [Carrigan].

37 Ibid, at 244.

38 Ibid, at 254 (per Cooper J); quoting O’Hanlon v Logue [1906] 1 Ir Rep 257,

an Irish case with very similar facts.

who profess any lawful creed from the benefits of charitable gifts.

The Carrigan decision is also interesting for the present discussion because it provides a judicial window on to the founding principles of this country concerning religion. One of the core arguments in the attack on the bequest was that an English statute, enacted some 400 years previously, remained good law in New Zealand. The Act for the Dissolution of the Chantries 1547 (Chantries Act)39 prohibited the giving of moneys in wills and trusts that requested the “continual services of priests”.40 Cooper J conceded that this practice was not followed by members of the dominant Protestant culture in New Zealand,41 but he considered this irrelevant because the “Anglican Church” was “in no sense a State Church”.42 Instead, the judge continued, it stood “legally on no higher ground than any of the other religious denominations in New Zealand”.43 According to the English Laws Act 1858, English common law and statute were applicable to the local courts to the extent that they were “applicable to the circumstances of the colony”.44 Because New Zealand (unlike the mother country) did not have a state church, however, Cooper J deemed the Chantries Act to be of no effect in the

39 1 Edw VI, c 14 (Eng). The Chantries Act was one of a series of statutes designed to suppress Catholicism in England from the Tudor era onwards. See discussion of this legislation in Joseph Tanner Tudor Constitutional Documents, A.D. 1485–1603 (Cambridge University Press, Cambridge,

1930), at 103; see also, for a general summary of Reformation-era persecution in England, Douglas Laycock “Continuity and Change in the Threat to Religious Liberty: The Reformation Era and the Late Twentieth Century” (1996) 80 Minn L Rev 1047, at 1055-1066.

40 See Carrigan, above n 36, at 244.

41 Catholics made up a relatively large minority of 13 per cent of the religious

demography at the time of Carrigan. See Michael King The Penguin History

of New Zealand (Penguin, Auckland, 2003), at 315. James Belich opines that

the general culture of New Zealand settler society conformed to a “vague,

shared Protestantism, self-repressive yet ‘progressive’”. James Belich

Making Peoples: A History of the New Zealanders (Penguin, Auckland, 1996),

at 439. Overt sectarian conflict was comparatively rare in the country but

flared up during times of stress, for example after World War I when a

Catholic bishop was prosecuted (unsuccessfully) for sedition after he

criticised the British army’s suppression of the Easter rising in Dublin

in 1916. See, generally, Rory Sweetman Bishop in the Dock: the Sedition

Trial of James Liston (Auckland University Press, Auckland, 1997); and PS

O’Connor “Sectarian Conflict in New Zealand, 1911–1920” (1967) 19 Pol

Science 3.

42 Carrigan, above n 36, at 252. For a more recent affirmation of this

constitutional fact, see Mabon v Conference of the Methodist Church of New

Zealand [1998] NZCA 244; [1998] 3 NZLR 513 (CA), at 523 per Richardson P.

43 Carrigan, above n 36, at 252; citing Long v Bishop of Cape Town (1863) 1

Moore PC (NS) 411 (PC), at 461.

44 English Laws Act 1858, s 1. For discussion of this statute, see Philip Joseph

Constitutional and Administrative Law in New Zealand (3rd ed, Brookers,

Wellington, 2007), at [1.6.1]; see also, generally, David V Williams “The

Foundation of Colonial Rule in New Zealand (1988) 13 NZULR 54.

country due to this difference in “circumstances”. Accordingly, the Court

found no legal bar to holding that the bequest was valid.

Justice Cooper ’s affirmation of the lack of an established church in this country reflected a number of events at the country’s founding. Significantly, at the very first Parliament a debate was held on the desirability of opening proceedings in the House of Representatives with a Christian prayer. Although the prayer was eventually made standard practice (and continues to this day), the decision to install the custom was accompanied by a proviso intended to limit its significance. Noting that the Constitution Act 185245 was silent on the matter of a state religion, which in their view implied equality between all religions,46 the members agreed on the following statement:47

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, whoever may be called upon to perform this duty for the House, it is not thereby intended to confer or admit any pre-eminence to that Church or religious body to which he may belong.

The decision in Carrigan is, I suggest, not only consonant with the general historical New Zealand theme of egalitarianism vis-à-vis the religion-state relationship,48 but it is also mirrored by the deference shown by Judge Moore 95 years later to the female witnesses in Razamjoo.49

45 15 & 16 Vict, c 72 (UK).

46 The future Premier Patrick Weld (of English Catholic background) argued

that no prayer should open the House’s business because to do so “may

tend to subvert that perfect religious equality that is recognized by our

Constitution”. (1854) 1 NZPD 5 (HR).

47 Ibid, at 6 (emphasis added). This debate is well recounted and its

importance commented on in, eg: Rex Ahdar Worlds Colliding: Conservative

Christians and the Law (Ashgate, Aldershot, 2001) [Ahdar Worlds Colliding],

at 10-11; and GA Wood “Church and State in New Zealand in the 1850s”

(1975) 8 J Religious Hist 255, at 255.

48 See also the oral guarantee of religious equality given by the future first

governor of New Zealand Captain William Hobson at the signing of the

Treaty of Waitangi in 1840: “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.” I have written further on the (sometimes

ambiguous) significance of historical documents like the so-called “fourth

article” of the Treaty in David Griffiths “Religious Conduct Exemptions

under the New Zealand Bill of Rights Act 1990: An advocacy for the ‘Equal

Regard’ reading of section 15” (PhD Thesis, University of Auckland,

2011) [Griffiths “Equal Regard reading of s 15”], at ch 3; available online

at ResearchSpace@Auckland <


49 See Razamjoo, above n 28, at [65]: “All [beliefs] are protected.” Compare,

for example, with Kamaruddin v Public Services Commission, Malaysia

[1994] 3 MLJ 61, Civ App No 01-05-92, (5 August 1994) (SC), in which the

Malaysian Supreme Court openly disputed a state employee’s subjective

interpretation of Islamic law when a female complainant requested she

Moreover, when Judge Moore concluded that he was satisfied that a prima facie breach of s 15 would occur if the women were required to unveil, he was surely ruling, like Cooper J in 1910, in the only way a genuinely secular court could. Indeed, his statement that the courts, and other institutions of government, should not “pronounce as to the correctness or otherwise of any person’s faith or culture”50 is surely another way of saying that secular courts must not get involved in what would in effect be test trials for religious orthodoxy.

The next matter to be considered by the judge was whether, despite the recognition of the women’s religious beliefs, the “secularity” of the New Zealand court system demanded that these beliefs be overridden to promote other important values. Significantly, the trial system had in the past allowed exceptions to the common law rule of giving testimony in full view of those present in the courtroom on a number of occasions. This undermined the defence claim that the women were asking the Court to give them an exemption from this rule and so were demanding “special laws for themselves”.51 For example, in R v Atkins,52 the Court of Appeal allowed witnesses to a gang-related killing to testify from a remote location by closed-circuit television. The accused and defence counsel were unable to assess visual or verbal demeanour, because the faces and voices of the witnesses were distorted.53 This seemed to be an adequate arrangement to the Court, which was phlegmatic about the erosion of open-court testimony that had occurred in the past:54

What is at issue in this respect is an inroad into generally accepted trial processes, something which has occurred from time to time over the years but without infringing the basic concept of a fair trial.

In other instances, it had been permitted for witnesses (both adults and children) in sex trials to testify behind screens to limit the stress of

be allowed to wear a face-covering veil at work. The Court stated, on the basis of testimony by a senior Islamic cleric, that the complainant’s reading of Surah 24 (also relied on by the two women in Razamjoo at para [16]) was incorrect. Significantly, perhaps, Art 3(3)(1) Constitution of Malaysia states that Islam is the established religion of the Malaysian Federation. The courts of that country evidently prefer versions of Islam that are condoned by Islamic leaders speaking for the dominant faith.

50 Razamjoo, above n 28, at [66].

51 Ibid, at [56].

52 R v Atkins [2000] NZCA 9; [2000] 2 NZLR 46 (CA) [Atkins]; cited in Razamjoo, above n 28,

at [21].

53 In Atkins, the Court endorsed the arrangement whereby the judge and jury

were able to view the witnesses’ faces undistorted (although witnesses’

voices were distorted). For a strong critique of Atkins, due to its significant

departure from normal rules of open court testimony, see Paul Rishworth,

Grant Huscroft, Scott Optican & Richard Mahoney The New Zealand Bill of

Rights (Oxford University Press, Melbourne, 2003) [Rishworth and others

BORA], at 703-704.

54 Atkins, above n 52, at [21].

confronting their alleged attackers.55 These exceptions, which suggested that the full confrontation of witnesses by defendants was not an absolute value in the New Zealand court system, assisted greatly the women’s claim and contributed to the final decision to allow testimony from behind a screen.

It is instructive at this point to consider how the US courts approach a system of exemptions like this in the face a claim by religionists that they have not received equal treatment. In Fraternal Order of Police v Newark,56 a US federal court considered whether a police department’s policy that all uniformed officers must be clean-shaven interfered with the right to religious free exercise of two uniformed Muslim police officers, as guaranteed by the Constitution.57 The officers, citing Islamic texts requiring that they wear beards, claimed that the fact the department allowed a “secular” exemption for officers who could not shave because of a medical skin condition, meant that they were being discriminated against. Judge Alito (now a Justice of the US Supreme Court) found that the medical exemption fatally undermined the police department’s claim that it was necessary to have the no-beard rule in order to promote public confidence in the force and to create an esprit de corps among police officers.58 The judge declared himself “at a loss” to understand why allowing a medical exemption would not undermine public confidence or staff morale, whereas a religious exemption would. As a result, he inferred from the department’s stance a discriminatory intent on the part of governmental actors that violated the Constitution.59

Applying the analysis in Newark to the facts in Razamjoo, it is also possible to argue that the existence of “secular” exemptions to normal trial procedures mandates the provision of a similar exemption for the two women to a degree that creates no more harm to the asserted interest in full-faced testimony (ie, the pursuit of truth in the courtroom)

55 See R v Moke & Lawrence [1996] 1 NZLR 263 (CA); cited and discussed in Razamjoo, above n 28, at [82], in which the Court of Appeal permitted the testimony via closed circuit television of child witnesses involved in sex abuse trials. Adult complainants in sex trials have also been accorded this exemption; see, eg, R v Daniels (1993) 10 CRNZ 165 (CA).

56 Fraternal Order of Police v Newark [1999] USCA3 199; 170 F 3d 359 (3rd Cir) (1999) [Newark].

57 The First Amendment to the US Constitution provides in relevant part:

“Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof...”.

58 The judge noted that an exemption for undercover officers from the

no-beard rule was constitutionally insignificant, because this did not

undermine the police department’s desire to foster a united front to the

public. For commentary on the workings of the Newark methodology, see

Richard Duncan “Free Exercise is Dead, Long Live Free Exercise: Smith,

Lukumi and the General Applicability Requirement” (2001) 3 U Pa J Const

L 850.

59 Elsewhere, I argue that the Newark decision ought to be adopted as the

general model for New Zealand courts when interpreting s 15 BORA; see

Griffiths “Equal Regard reading of s 15” , above n 48, at ch 3, section 4.

than the secular exemptions do. Moreover, looking more generally at the court system, other exemptions for religious belief suggest that the system does not in fact operate in a “secular” vacuum, as commentators like Michael Laws would have it.60 For example, s 15 (2)(a) Juries Act

1981 permits exemptions from jury service for persons who claim they are “a practising member of a religious sect or order that holds service as a juror to be incompatible with its tenets”; and s 58 Evidence Act

2006 continues the long-standing exemption for clergy or other persons holding positions of trust in spiritual communities from testifying on matters confided to them as part of their spiritual function (except where such confidences contribute to the commission of crimes). The decision in Razamjoo, therefore, comports with a long tradition in New Zealand of accommodating religious sensibilities in the court system where possible, and it also fits well with the egalitarian approach adopted at the founding of this country.

After the trial, however, some argued that equating the women’s religious beliefs with the fear of reprisals against witnesses in gang trials or the discomfort of sexual attack victims on the stand was a false comparison. In an opinion piece in the Otago Daily Times,61 the exemption granted by Judge Moore was disparaged as essentially caving in to a mere “personal choice”,62 and that it was therefore misguided to equate the women’s claims with the “genuine threat” to witnesses’ lives in gang murder trials, or with the “extreme vulnerability” of child witnesses in sex cases. This contention, however, ignores the fact that s 15 BORA was enacted specifically to protect the manifestation of religious beliefs (or of non-religious beliefs that resemble religious beliefs in their intensity63), and not to accord relief to activities that do not rise to the same level of cogency or comprehensiveness in the lives of those holding them. The newspaper ’s views are, I suggest, typical of those operating within a fully secularised and aggressive liberal worldview and who cannot

60 See text above accompanying n 13, where Michael Laws decries the Afghan women’s request as seeking an unacceptable concession by “secular New Zealand”.

61 See “Blinded by burqa” Otago Daily Times (20 January 2005).

62 Ibid. The opinion piece also denounced the fact that the decision was

“prompted wholly by the self-interest of the witnesses involved”.

63 Section 15 protects the manifestation of “religion or belief”, and not mere

thought or opinion or conscience, which are protected by s 13 BORA and

are regarded as instances of the forum internum. Overseas jurisprudence

suggests that “belief” ought to be construed as embracing beliefs that are

closely analogous to religious beliefs. See, eg, United States v Seeger 380

US 163, 176 (1965), where the US Supreme Court extended the definition

of “religion” under the First Amendment to a “sincere and meaningful

belief which occupies in the life of its possessor a place parallel to that

filled by...God”; see also Campbell and Cossans v UK [1983] ECHR 3; (1982) 4 EHRR 293,

at [36]: “‘Beliefs’...denotes views that attain a certain level of cogency,

seriousness, cohesion and importance”; and see Rishworth and others

BORA, above n 53, at 292: “‘Belief’ takes its colour from, and extends


distinguish between autonomous acts based on religious beliefs, which are perhaps regarded by believers as divinely ordained, and acts motivated by more mundane and ephemeral concerns.64 However, if, as the opinion piece implies, religious beliefs are not deserving of this status (and I concede that this argument can be made out in modern times), then the proper response would be for Parliament to repeal s 15, and for the government to lodge a (probably illegal65) retrospective reservation to the underlying treaty guarantee contained in art 18 International Covenant on Civil and Political Rights. While s 15 remains on the books, however, arguments like that put forward by the Otago Daily Times must surely fall on stony ground.

A final issue canvassed briefly by Judge Moore was whether foreign jurisprudence endorsing the exclusion of Muslim veils from public places as an incidence of the principle of secularism was applicable in the New Zealand context. At the behest of defence counsel who cited it, the judge quoted the following statement by the European Court of Human Rights in Sahin v Turkey:66

[T]he Court has also previously stated that the principle of secularism in Turkey is undoubtedly one of the fundamental principles of the State, which are in harmony with the rule of law and respect for human rights.... In a country like Turkey, where the great majority of the population belong to a particular religion, measures taken in universities to prevent certain fundamentalist religious movements from exerting pressure on students who do not practise that religion or on those who belong to another religion may be justified under Article 9 [sect] 2 of the Convention. In that context, secular universities may regulate manifestation of the rites and symbols of the said religion by imposing restrictions as to the place and manner of such manifestation with the aim of ensuring peaceful co- existence between students of various faiths and thus protecting public order and the beliefs of others.

64 This is the prime difficulty with according an autonomy rationale to s 15 in order to provide a modern justification for religious freedom that is free of the religious underpinnings of the concept in past centuries. For commentators like the Otago Daily Times, there is no principled way to distinguish between those wishing to wear a burqa in court for religious reasons, and those wishing to wear, say, a face mask because they are shy in public. For discussion of this issue, see, eg, Rex Ahdar & Ian Leigh Religious Freedom in the Liberal State (Oxford University Press, Oxford,

2005), at 60-64.

65 The ICCPR does not permit states to withdraw from the treaty obligation,

except for brief periods during national emergencies. See Sarah Joseph,

Jenny Schultz, and Melissa Castan The International Covenant on Civil

and Political Rights: Cases, Materials, and Commentary (2nd ed, Oxford

University Press, Oxford, 2004), at [25.38].

66 Sahin v Turkey [2005] EHRR 8 (29 June 2004) [Sahin], at [99]; quoted in

Razamjoo, above n 28, at [92].

In Sahin, the European Court of Human Rights endorsed the decision of state authorities to ban religious garb in public universities based in part on the secular principle contained in the Turkish Constitution. Judge Moore refused to apply the rationale in Sahin to the facts at hand, however, stating that jurisprudence from countries “whose traditions and legal systems are far removed from those in this country will not assist”.67 Judge Moore did not elucidate further on this assertion, which resembles perhaps that of Cooper J in Carrigan not to apply an English statute in New Zealand. However, a few points could be made here that throw light on his refusal to take the Turkish precedent into account.

First, unlike Turkey, New Zealand does not have a freestanding secular principle anywhere in its constitution,68 a key factor in the European Court’s decision. The Turkish Constitution, reflecting the French constitutional guarantee of “laïcité” on which it was based,69 provides in Art 2 that the nation is a “democratic, secular and social state”; and the document also expressly prohibits the “exploit[ation] or abuse of religion or religious feelings...for the purpose of personal or political influence, or for even partly basing the fundamental social, economic, political or legal order of the State on religious tenets”.70 These very direct words, which were created in order to make permanent the seven-decade-long transition to non-religious-based rule by the country’s founding father Kemal Atatürk from 1923, reflect in the positive law of that country a concern about radical elements in the majority-Muslim population who allegedly seek to frustrate this policy.71 I suggest that Judge Moore’s refusal to apply the secular principle that was so important to the resolution of Sahin was due to his unspoken assessment that it would be inappropriate to transplant into the New Zealand context a principle based on domestic Turkish considerations as to the dangers of radical Islamic politics when no such crisis could plausibly be said to exist in

67 Razamjoo, above n 28, at [86].

68 As I argue below, the express “secular principle” in the Education

Act 1964 only applies to a narrow band of circumstances within the

New Zealand educational system.

69 The similarity to the French Constitution’s phrasing of the secular

principle is not a coincidence, as it was consciously borrowed from the

French model; see Adrien Wing & Ozan Varol “Is Secularism Possible in

a Majority-Muslim Country?: The Turkish Example” (2006) 42 Tex Int’l

LJ 1, at 6.

70 Constitution of the Republic of Turkey 1982 (as amended 1987), Art 24;

see Sahin, above n 66, at [30].

71 See, generally, Dominic McGoldrick Human Rights and Religion: The Islamic

Headscarf Debate in Europe (Hart Publishing, Oxford, 2006) [McGoldrick

Islamic Headscarf Debate], at ch 5.

this country.72 Similarly, the French constitutional provision of laïcité,73 which was used as part of the justification for enacting legislation banning all religious garb from schools in 2004 and to ban the burqa from all public places in 2010, is another useful country-specific illustration of what Wilfred McLay has called the “cultural and historical context” in which the word “secularism” is used.74 The French decision to legislate against religious attire, based as it was on that country’s secular principle, arguably derives from the violent birth of the modern French state in the 18th century, when the Revolution sought to break the grip of the monarchy, allied with the Catholic Church, over the country’s future direction.75 The culturally-ingrained suspicion of public religiosity in France is in part a product of this violent history. Accordingly, I suggest that these principles of secularism, grounded as they are in the unique histories of the Turkish and French nations, ought not to apply in New Zealand, a country where no Islamic insurgency appears imminent, and where it has never been seen as necessary to sever links between the state and religion or to enforce such a separation in the positive law.

Viewed in the context of the three categories of the secular listed above, the French and Turkish examples are, I believe, examples of “fundamentalist secularism”, and are for that reason inappropriate for assisting in the resolution of New Zealand religion-state issues.

Returning finally to the resolution of Razamjoo, it is my opinion that the decision aligns well with either the positive secular (ie, providing an exemption for religious believers is necessary given the existence of many non-religious exemptions) or the negative secular (ie, the exemption for religious believers is simply a necessary exemption from a general law that the secular state is entitled to provide as a way of avoiding unduly influencing individual religionists’ choices regarding their private beliefs) formulations of the concept.

72 This included the possibility that women would be coerced into wearing the garment by radical Islamists infiltrating the university system. The gender equality issue was downplayed by Moore DCJ, who simply stated that the courts could not be expected to put the “world to rights”, and that women in New Zealand wearing attire that was arguably enforced on them by males ought to be given time to adjust to New Zealand culture; see Razamjoo, above n 28, at [75] & [74], citing Isha Khan “Islamic Law and International Human Rights Standards” (1999) 5 Appeal Rev Current L & L Reform 74. Khan writes that the tension between Islamic law and modern human rights norms, such as gender equality, ought to be approached by public authorities in a spirit of “gradualism”.

73 See Constitution 1958 (France), Art 2: “France is a Republic that is

indivisible, laïc [secular], democratic, and social.”

74 McLay “Two Concepts of Secularism”, above n 19, at 59.

75 See, eg, T Jeremy Gunn “Religious Freedom and Laïcité: A Comparison

of the United States and France” (2004) BYUL Rev 419, at 438, where he

describes the legislative attempt to separate church and state in France

in 1795 as a reaction to widespread religious violence following the

Revolution; see also McGoldrick Islamic Headscarf Debate, above n 71, at


B The Hagley Mosque incident: a clash of “free exercise” and “establishment”


The result in the Burqa Trial ought to be regarded as unproblematic when it is considered through the lens of what is described in US constitutional parlance as an “establishment of religion” issue. Surely the best view is that Judge Moore was simply removing an unnecessary burden on the women’s religious beliefs that did not harm other persons in any substantial way: moreover, it did not appear to involve the state in directly endorsing Islam or imposing any of that religion’s practices on citizens belonging to other religions or to none.76 The Hagley Mosque controversy presented a different problem in that it involved the state spending public money on a house of worship in one of its own institutions. Thus, while, like Razamjoo, the controversy involved a core ritual of a certain religious group,77 it also required the state to take active steps to facilitate the ritual. This arguably implicated not just s

15 BORA, but also s 13 BORA, which protects against state interference with the internal belief systems of its citizens.78 This right, which is absolute, is arguably offended if the state “endorses” (or “establishes”) a religion (or all religions), and thereby makes non-adherents (for example, non-Muslims who paid taxes to support the building of the prayer room at Hagley College) feel like outsiders from the political culture.79

While s 13 has never been interpreted as importing the full edifice of

US establishment clause jurisprudence into this country,80 the Hagley

76 Compare with Mair v Wanganui District Court [1996] 1 NZLR 556 (HC), in which Heron J upheld a conviction for contempt of court of a person who, against the express direction of a lower court, uttered a Maori karakia (religious incantation) during proceedings. For Heron J, the courts were “secular” institutions and he declared that “involving any person in a karakia against their personal wishes” was “insensitive and unacceptable”; ibid, at 564. The Burqa Trial was qualitatively different in that nobody was being asked to join in the women’s religious activities; see Griffiths “Burqa”, above n 30, at 288-289.

77 See Adbullahi A An-Na’im “Religious Minorities under Islamic Law and the Limits of Cultural Relativism” (1987) 9 Hum Rts Q 1, 17, where the author names the requirement to pray five times a day as one of the core rituals of Islam that cannot be given up by Muslim minority groups living in non-Muslim countries.

78 Section 13 BORA provides: “Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and hold opinions without interference.”

79 The classic statement of the non-endorsement principle is by O’Connor J in Lynch v Donnelly [1984] USSC 47; 465 US 668, 688 (1984): “Endorsement sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.”

80 See, however, Rishworth and others BORA, above n 53, at 285-288, where Rishworth explains that the basic guarantee of “freedom of thought, conscience, religion, and belief” in s 13 could be interpreted as providing freedom from state-imposed religious orthodoxy, and does not simply protect people’s internal religious opinions.

Mosque issue certainly raises important questions as to the limits of

what a supposedly secular polity can spend its money on.

Recall that critics of the Hagley Mosque construction attempted to recruit the “secular provisions” of the Education Act in their arguments that a “secular State” such as New Zealand should not spend money on such things. Also recall that the Office of the Auditor-General replied to the complaint of Rodney Hide MP that there were “no secular provisions in the Education Act 1989 pertinent to the concerns you have raised”. Unfortunately for the purposes of this discussion, the Auditor-General was not forthcoming on why the secular principle was not offended. It is therefore worthwhile now to speculate on what the insertion of the “secular provisions” in the Education Act was intended to achieve.

Prior to 1877, education was administered by provincial legislatures which in some cases used public funds to support church schools, as was inevitable given that public education was in its infancy in the new colony.81 In 1877, however, resistance to funding of sectarian education led to the decision of the national legislature to ban all funding of religious schools and also to prohibit religious observances to start the school day, or indeed instruction to individual classes during the day.82

The Education Act 1877 provided, at s 84(2), that: “The school shall be kept open five days in each week for at least four hours, two of which in the forenoon and two in the afternoon shall be consecutive, and teaching shall be entirely of a secular character.” Unfortunately, at least from the point of view of secularist-minded legislators, this provision was undermined by what came to be known as the “Nelson System” (named after the area in which it was pioneered). Since schools were, in practice, actually open for five hours a day, and only four of these were required to be devoted to teaching secular subjects, many schools used one of these hours, typically at the start of the day, to introduce voluntary religious instructors from outside the school.83

This system was later made formal by the Education Act 1964, which provided in s 78 that “primary schools” could be “closed” for up to one hour a week in which instruction (or general observances to the whole school) could be given by volunteers from outside the school in accordance with the wishes of school boards, or indeed by the school’s own teachers on a voluntary basis.84 Under s 78A, moreover, “additional

81 For an exhaustive account of the New Zealand educational model from its beginnings, with a special focus on the march towards establishing a secular system, see AG Butchers Young New Zealand (Coulls Somerville Wilkie Ltd, Dunedin, 1929).

82 Ibid, at ch 31; see also Ian Breward Godless Schools? A study in Protestant reactions to the Education Act of 1877 (Presbyterian Bookroom, Christchurch,

1967), at ch 1.

83 See Ahdar Worlds Colliding, above n 47, at 13.

84 Section 80. See discussion in Rex Ahdar “Religious Liberty in a Temperate

Zone: A Report from New Zealand” (2007) 21 Emory Int’l L Rev 205

[Ahdar “Religious Liberty in New Zealand”], at 216-217.

religious instruction” can be given if the majority of parents at the school so desire.85 This latter provision was added in 1975 when Parliament decided formally to provide funding for religious schools (and also other schools espousing non-religious philosophies) after a century of sometimes-heated debate on the matter.86

Several features of this legislation suggest answers to why the Auditor-General considered that the Hagley Mosque complaint was not reached by any secular provisions in the Education Act. First of all, the requirement of secular education applied only to teaching at state primary schools.87 Hagley College was a secondary school, which meant that the “secular” legislation simply did not apply. Also, as was argued in a letter written by lawyers acting for the school board,88 the prayer room was not to be used for instruction of any sort but was rather to be used by Muslim students individually for worship purposes outside normal teaching hours. Other problems with the “secular State” critique of the prayer room’s construction, also adverted to in the letter, lay simply in the fact that instruction was permitted by law at state schools, sometimes by state actors (ie, teachers voluntarily giving instruction, or by school principals leading collective worship in school assemblies). It was also pointed out that some secular institutions, most notably universities, had prayer facilities on campus. The implication of this critique was that the secularity of the state in educational matters was questionable, and, in any case, the principle referred to by Trevor Mallard and Rodney Hide MPs was not of an overarching kind that was intended to influence the general administration of education in the country. If a secular principle existed to prevent the construction of the prayer room, it was not to be found in the education legislation. Recall that the SOD definition of secular included the definition of “secular” education as denoting schools that exclude religious instruction. The New Zealand system does no such thing; in fact surely there is a case for saying the New Zealand educational system is not secular at all.89 This observation is given further

85 See Rory Sweetman ‘A Fair and Just Solution’?: A history of the integration of private schools in New Zealand (Dunmore Press, Palmerston North, 2002) [Sweetman Integration of private schools], at 102-105, where Sweetman comments on the controversial nature of s 78A, which appeared to some to go against the spirit of the secular foundations of the national system in the 19th century. Note that section 79 of the Act gives the parents of students the right to withdraw their children from all instruction or observances should they wish.

86 See Private Schools Conditional Integration Act 1975. The Act provided state funding for private schools, allowing them to retain their “special character”, which could be either religious or philosophical. See, generally, Sweetman Integration of private schools, above n 85.

87 See Sweetman Integration of private schools, above n 85, at 34.

88 Letter from Cuningham Taylor Barristers & Solicitors to Rt Hon Trevor

Mallard (8 March 2004) (Obtained under Official Information Act 1982

Request to Ministry of Education).

89 In his comment on the Hagley incident, Kolig remarks that provision for

currency by the fact that the report of the Commission into Education in 1962 argued (unsuccessfully) that state school teachers ought not to be permitted to take part in any religious activities at school, even voluntarily, and parents should be required to “opt in” their children rather than being forced to opt out (thereby attracting the disapproval of peers and being forced to make a religious statement of sorts) of any religious instruction taking place at schools.90 This was presumably an attempt to preserve secular values in the state education system. The New Zealand legislature evidently took a different view as to what secularism required in the field of education.

One way of conceiving of the mosque’s construction as not offending some local secular principle, drawn perhaps from an “anti-establishment” reading of s 13 BORA, is to view the expenditure as facilitating equal access to education for Muslim students on the same level as other students. The reason why the prayer room was requested in the first place was to obviate the need for Muslim students to walk some

45 minutes off campus to a local mosque during school hours in order to satisfy Islamic religious requirements. Other students at the school were not inconvenienced by the presence of the prayer room (non- religious students were unaffected, and Christians simply could pray in unattended classrooms). To make an analogy that has been used by the South African Constitutional Court, it is possible to regard the provision of the Hagley prayer facility as analogous to providing ramps and other devices for disabled students so that they can receive an equivalent education to their non-disabled classmates.91 If one views the expenditure in this way – as furthering a predominantly non-religious purpose (ie, education) – it is possible to consider the expenditure as furthering

Muslim students could be compared with state concessions to indigenous Maori spirituality that are now commonplace in legislation and other governmental actions. See Erich Kolig “A Gordian Knot of Rights and Duties: New Zealand’s Muslims and Multiculturalism” (2006) 8

New Zealand Journal of Asian Studies 45, at 50 & n 7. In one well- publicised instance, Transit NZ altered a motorway construction at some cost to protect a “taniwha”, or Maori spiritual guardian; see Greg Ward “Maori swamp creature delays road” BBC News (4 November 2002)

<>; see also the excellent discussion of how the modern New Zealand state’s concessions to Maori spirituality have affected the secularity of public life in recent years in Rex Ahdar “Indigenous Spiritual Concerns and the Secular State: Some New Zealand Developments” (2003) 23 Oxford J Legal Stud 611.

90 See Report of the Commission on Education in New Zealand (Government

Printer, Wellington, 1962), at ch 16 “Religious Teaching in State Schools”.

91 See MEC for Education: Kwazulu-Natal and Others v Pillay [2007] ZACC 21; 2008 (1) SA 474

(CCSA), at [74] per Langa CJ. In Pillay, a girl who wished to wear a Hindu

nose-stud, which contravened her school’s uniform code, won her case

under the religious freedom and equality provisions of the South African

Constitution. Langa CJ justified his decision in part on the disabled-

student analogy.

sufficiently secular ends.92

By contrast, consider the 1917 case of Doyle v Whitehead,93 where Stout CJ invalidated a Wellington City Council bylaw, because it forbade the playing of golf on town reserves on Sundays. Upon investigating the matter and finding that the proprietors of a Presbyterian orphanage, which was located near one such reserve, had requested that the bylaw be made in order to preserve the Sabbath, the Chief Justice declared the measure invalid, as its only purpose was to enforce religious doctrine. A rule made for an exclusively religious purpose was expressly interdicted by s 347(e) Municipal Corporations Act 1908. Stout CJ tried in vain to find a genuine secular purpose for the bylaw, which might have saved it, noting (using analysis similar to Alito J in Newark) that if the asserted purpose of the council in creating the bylaw was to protect persons using town reserves for other reasons from injury from golf balls, then it would have been logical to ban golf on Saturdays as well as Sundays. In summing up his more general reasons for striking down the bylaw, Stout CJ declared:94

Considering that the State is neutral in religion, is secular, and that the State has provided for Sunday observance only so far as prohibiting work in public or in shops, &c., is concerned, and not prohibiting games, it cannot be said that this is a reasonable by-law.

For Stout CJ, laws promoting religious values could be justified in the light of the state’s secularity only if they were allied with plausible secular reasons.95 Viewed in light of Doyle, therefore, it is arguable that the Hagley College prayer room, facilitating as it does the equal access to public education of Muslim students, could be regarded as surviving one aspect of the historical conception of secularism in this country, in that its construction was not solely designed to further a religious purpose.

A further useful comparison could be made at this point with the Canadian case of Chamberlain v Surrey School District.96 In Surrey, a school board had refused permission to a state schoolteacher to use readers as part of his kindergarten/first grade curriculum. The readers depicted same-sex parents, and the board, apparently at the behest of parents motivated by religious objections to exposing their children to positive portrayals of gay parents, refused to approve their use.

92 Rishworth argues for this viewpoint; see Paul Rishworth “The Religion Clauses of the New Zealand Bill of Rights” (2007) NZ Law Rev 631 [Rishworth “Religion Clauses”], at 657.

93 Doyle v Whitehead [1917] NZGazLawRp 39; [1917] NZLR 308 (SC) [Doyle].

94 Ibid, at 314; see discussion of Doyle in Ahdar Worlds Colliding, above

n 47, at 13.

95 Regarding laws prohibiting work on Sundays, Stout considered that

these furthered the valid secular purpose of providing a common day of

rest for all society. For discussion of Stout’s views on Sunday observance

laws, see Jim Dakin The Secular trend in New Zealand (First Edition Ltd,

Wellington, 2007), at 73-74.

96 Chamberlain v Surrey School District [2002] 4 SCR 710 (SCC) [Surrey].

The Supreme Court of Canada overturned the decision in part on the grounds that it conflicted with the board’s enabling legislation. Section 76 of the British Columbia Schools Act 1996 required that schools be conducted on “strictly secular and non-sectarian principles”. The Court held that it was acceptable for the board to take the religious views of parents into account, but that it must respect other values when actually implementing policies in its classrooms.97 Foremost among these values were equality rights for gay persons, which were protected alongside the right to freedom of religion under the Canadian Charter of Rights and Freedoms.98 The Court therefore found that the board had failed to promote and respect the constitutional value of equality in its decision to ban the books. One could argue that the decision to build the Hagley Mosque, which certainly respected the religious views of part of the parental community of the school, ought to be regarded as inoffensive as it did not impact on the enjoyment of any other students’ rights – whether this be conceived as the right to religious freedom of non-Muslims, or of equality. As for taxpayers who might object to the expenditure on the grounds of their own freedom of religion, a simple answer could be that the New Zealand education system is not a purely secular animal and that if the government ordered that the mosque should be dismantled, then other similar structures (eg, the Maclaurin Chapel at Auckland University, which provides services to Christian groups) ought also to be pulled down.

As Paul Rishworth has explained, the numerous assistances granted to religion in the education system disclose a governmental attitude towards religion of “state facilitation of the religious expression or inclinations of the citizenry”.99 This version of “secularism” (if it can be called that at all) goes beyond the type 3 version I identified above, which simply envisages the state in the “negative secular” role of removing obstacles from religious practice where possible – not actually creating conditions conducive to religion.100 It is certainly a far cry from the austere secularist

  1. Ibid, at [19]; see further David Schneiderman “Canada: Supreme Court addresses gay-positive readers in public schools” (2005) 3 Int’l J Const L

77; and Benjamin Berger “Law’s Religion: Rendering Culture” (2007) 45

Osgoode Hall LJ 277, at 306-307.

98 Freedom of “conscience and religion” is protected by s 2(a) and the right

to equality by s 15 of the Canadian Charter of Rights and Freedoms, Part

I Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK).

99 Rishworth “Religion Clauses”, above n 92, at 658. Rishworth considers that

such positive assistance to religion is justifiable on democratic grounds

(ie, school boards are democratically elected bodies), and must be closely

monitored to avoid discrimination between religions and non-religion;

for example, religious instruction at schools ought to be permitted to all

faiths represented on the student body.

100 Benson argues that a truly secular state should “not be run or directed

by a particular religion or ‘faith-group’ but must develop a notion of

moral citizenship consistent with the widest involvement of different

faith groups (religious and non-religious)”. Benson “(Re)definition of

Secular”, above n 19, at 530.

systems of France and Turkey, where public religiosity is regarded as a source of danger to the survival of the state.

IV Conclusion: the permissive “secularism” of New Zealand

In 2002, the then Prime Minister, Helen Clark, dropped the saying of

grace at a state banquet for the Queen, declaring:101

There was no grace for the same reason as there is none now in New Zealand, because we’re not only a society of many faiths, but we’re also increasingly secular. In order to be inclusive, it seems to me to be better not to have one faith put first.

Five years later, however, Clark spoke in favour of retaining the Christian prayer that opens parliamentary sessions with the following words:102

I believe it is very important that our law makers acknowledge God before they go about their business. By doing so they honour the founding values of our nation and are reminded that there is a higher authority than themselves, although I suspect this reminder is the very reason why they want the prayer removed.

My instinctive response to these two statements is to recruit an American expression: “Go figure”.103 More seriously, it seems plain that Clark’s utterances reflect, perhaps unconsciously, what was recently acknowledged by a 2005 select committee report into New Zealand’s constitutional arrangements. The committee decided not to include the “secular” clause of the Education Act 1877 in a list of important constitutional “milestones” in the nation’s history because it regarded the concept as “contested constitutional ground”.104 In the meantime,

101 See “Lack of grace leaves no trace” Otago Daily Times (9 March, 2002).

102 See M Houlahan “MPs want prayer changes to reflect religious diversity”

New Zealand Herald (1 June 2007). See text of the latest version of the prayer

(which was altered slightly in 1962), in Report of the Standing Orders

Committee Petition of Dr Anthony Hochberg and 9 others (relating to the

parliamentary prayer) (15 June 2007), at 3. The report, which recommended

maintaining the prayer in its current form, recounts that 63% of MPs

canvassed on the issue preferred the prayer to remain unaltered.

Ibid, at 4.

103 David Smolin recommends “laughter” in the face of similar conflicting

practices in the US; see David Smolin “Cracks in the Mirrored Prison:

An Evangelical Critique of Secularist and Judicial Myths Regarding the

Relationship of Religion and American Politics” (1995) 29 Loy LA L Rev

1488, at 1501 (noting, eg, that the US President-elect would soon be sworn

into office by a US Supreme Court Justice while holding a Christian Bible,

whereas the US courts at the same time disallowed student-led prayers

at college football games; see Santa Fe Independent School District v Doe

[2000] USSC 56; 530 US 290 (2000)).

104 See Report of the Constitutional Arrangements Committee Inquiry to

review New Zealand’s existing constitutional arrangements (August 2005),

1.24A, App B. The committee also posed (but did not answer) the

question of whether the “convention that New Zealand is a secular state”

however, in April 2009 the New Zealand government lodged the following statement (containing terms very similar to those objected to by the Catholic Church at the start of this article) to the United Nations Human Rights Council:105

In New Zealand the right to freedom of religion or belief is legally protected through the [New Zealand Bill of Rights Act 1990] and the Human Rights Act 1993. ... New Zealand is a secular State with no State religion, where religious and democratic structures are separated. Matters of religion and belief are deemed to be a matter for the private, rather than public sphere. There are no legal restrictions specifically relating to religious groups,...

This article has been an attempt to categorise different versions of the “secular” and has applied them to the resolution of two religious freedom controversies in the New Zealand context. It has shown, at the very least, that the term “secular State” means much more than the mere fact that an increasing number of New Zealanders are ticking the box “no religion” in the five-yearly census. The term secular, insofar as it is a legal construct, is only indirectly affected by this feature of the new religious demography. In fact, it seems to me that consensus on the legal meaning of the term will only become more important once the number of those citing a religious affiliation dips below 50 per cent, if indeed that ever happens. I have also used as a resource case law employing the term as a starting point for considering how this principle ought to be construed in the BORA era, which is, I believe, a necessary step to take in defining a concept that is essentially culturally driven and prone to different interpretations over time in different countries.106 It is certainly arguable that the guarantee affirmed in ss 13 and 15 ought

is being “eroded by various statutory directives to consider cultural and spiritual values”. Ibid, at App G. See also Erich Kolig “Coming through the backdoor? Secularization in New Zealand and Maori Religiosity” in J Stenhouse & B Knowles (eds) The future of Christianity: historical, sociological, political and theological perspectives from New Zealand (ATF Press, Adelaide, 2004), at 183.

105 National report submitted in accordance with paragraph 15 (A) of the annex to Human Rights Council Resolution 5/1: New Zealand UN Doc A/ HRC/WG.6/5/NZL/1 (9 April 2009), at [67]. These words repeat verbatim a statement (which, as we have seen, is now undergoing revision) by the Human Rights Commission in 2004. See New Zealand Human Rights Commission Human Rights in New Zealand Today (Wellington, 2004), at ch 9 < >.

106 Justice Richardson has explained that an investigation into the “historical, social and legal context” within which a BORA right operates is a valid way, among others, of construing its scope. See R v Jefferies [1994] 1 NZLR

290 (CA), at 299. Whether the permissive brand of “secularism” existing in New Zealand is immune to challenge by individuals claiming that their right to religious freedom is infringed (eg, by an atheist parent who objects to legislatively-permitted religious observances at state school assemblies) is a moot point; see discussion in Ahdar “Religious Liberty in New Zealand”, above n 84, at 219.

to be construed as validating the visions of the secular state embodied in older decisions like Carrigan and Doyle. These decisions, like their modern analogues in Razamjoo and in the Hagley Mosque controversy, are not ones that bodies like the Catholic Church need to fear if it should turn out that they reflect accurately the modern notion of secularism. I therefore conclude that the New Zealand state is of the permissive or liberal secular type,107 but that it is an uneven one, causing much confusion amongst media commentators and politicians who seek with little apparent forethought to invoke the rhetorical power of secularism.

107 For media commentary advocating the liberal version of secularism identified in this article (and which is directly at odds with the news articles of Rudman and Laws cited in the text above accompanying ns 12

& 13), see Tapu Misa “How to live up to freedom’s ideals” New Zealand

Herald (1 August 2011).

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