The retreat of religious freedom
Religious freedom slipped off the radar during our COVID-19 response; is it slipping down the rank of rights?
New Zealand is predominantly and increasingly a secular society, though a significant minority of us practice some form of religion.[i] For example, 16 percent of New Zealanders attend a Christian church at least once a month, and 2.5 percent of us are Hindu.[ii] COVID-19 posed a number of challenges for religious believers and their communities. For example, common Christian practices like communion (which in some traditions involves drinking from a shared cup) and corporate singing had the potential to spread COVID-19, while lockdowns limited the ability to gather for worship.[iii]
The vast majority of believers accepted these restrictions as necessary and sensible but they were, nonetheless, significant. We all have to ask ourselves questions about the meaning and purpose of life, the existence of truth, and the source of moral order, and live with the answers. Religious believers do so in accordance with our respective faiths and, like our secular neighbours, treat these answers as foundational. So it was revealing, but perhaps not surprising, that so little consideration was given to religious freedom in our COVID-19 response.
A revealing omission
Religious freedom is expressed in the Bill of Rights Act, where it takes the form of the rights to “freedom of thought, conscience, religion, and belief” and to manifest religion or belief.[iv] So it was significant that these rights were entirely omitted from the Ministry of Justice’s review of the CPHR [COVID-19 Public Health Response] Bill in May 2020. Advising the Attorney-General on the Bill’s consistency with the Bill of Rights Act, the Ministry considered eight rights and freedoms, but not religious freedom.[v] Religious freedom fell off the radar again in November 2021 when the Ministry reviewed the COVID-19 (Vaccinations) Legislation Bill.[vi] This is despite the fact that both Bills clearly limited religious freedom—for example, the CPHR Bill restricted faith-based (and other) gatherings, and the Vaccinations Bill infringed on the religious objections to COVID-19 vaccination held by some.[vii] It’s disturbing when officials seem unaware of fundamental rights and freedoms, including and especially when they protect minorities whose interests can otherwise be overlooked.
They also seemed to fall off Parliament’s radar, at least when the Finance and Expenditure Committee was conducting its Inquiry into the CPHR Act. There, the Committee discussed the Police’s power of warrantless entry onto marae, which was similar to the power to enter businesses and public premises. Describing this as “inappropriate,” the Committee said that entry powers “should be tailored to reflect the dignity of marae.”[viii] Although the Act requires any such entry to be followed by a report to the marae committee, the Committee considered this was insufficient as a safeguard, applying only “after the fact.”[ix] The Committee didn’t discuss the dignity of other institutions of civil society, like churches, mosques, or temples, and nor does the Act make any provision for post-entry reports to their governance.
This is not a critique of the status given to marae or the requirement to report to them; rather, it’s a suggestion that that logic might also mean other significant institutions should be treated in the same way. To be fair, the Committee’s deliberation may have been shaped by the history of the Act, which initially treated marae differently and hence focused debate on them, but again it seems significant that no-one seems to have considered the place of religion and its institutions.
Religious freedom also slid out of view in the High Court and Court of Appeal in the leading case of Borrowdale v Attorney-General. Challenging the legality of the 2020 lockdowns, Borrowdale argued that the right to manifest religion had been limited, along with other rights.[x] However, the High Court considered, rather generally, that the lockdown powers “engage a number of rights,”[xi] and its ultimate declaration that the lockdown was indeed unlawful singled out its limitation of the rights to freedom of movement, assembly, and association.[xii] The Court of Appeal focused on those same three rights.[xiii]
The Court giveth, and the Court taketh away
This sense that religious freedom is slipping down the ranks of rights also finds some support in a recent case that considered it directly. Although not COVID-19-related, the case is contemporaneous with the response to the pandemic and was decided in September 2021.
NZHPA v Attorney-General involved a challenge to the Contraception, Sterilisation and Abortion Act 1977. The case included an argument that requiring a doctor to tell a woman seeking an abortion where she could access that service infringed that doctor’s right to manifest religion, if the doctor believed that providing that information would make them complicit in the abortion. Ellis J held that the doctor’s refusal did not qualify for protection as a manifestation of religion because all that was required was to provide information, not a formal referral.[xiv]
In reaching that decision, Her Honour was prepared to take note of orthodox Catholic teaching on abortion but doubted that it represented the position of all Catholics or Christians: “I would imagine, for example, that many adherents of that faith now honour a good part of it only in the breach.”[xv] The two most striking features of this case are that Ellis J essentially substituted her own assessment of what religious belief or conscience require in place of an individual doctor’s assessment, and that she effectively required unanimous adherence to a religious belief before it qualifies for Bill of Rights Act protection. Both render the right almost worthless.
By contrast, a COVID-19 case decided a few months later gave the right to manifest religion a much more meaningful treatment. In Yardley v Minister for Workplace Relations and Safety, the High Court heard a challenge to an order requiring Police and Defence Force personnel to be vaccinated. Apparently some of those employees were concerned the vaccine had been tested on foetal cells, potentially from an aborted foetus, and objected to vaccination on that basis. Cooke J held this engaged the right to manifest religion because it “is grounded in a core principle of the particular Christian religion and the objection to abortion.” Unlike Ellis J, he held that, “[t]he fact that others observing the same religion do not agree with the stance does not mean that the stance does not involve the observance of a religious belief.”[xvi] However, this finding wasn’t strictly essential to the ultimate decision, which also engaged the right to refuse medical treatment and ultimately rested on an assessment that the evidence did not show that the limits on these rights were justifiable.
These cases illustrate that the right to manifest religion is in flux and the outcome is uncertain. Along with the lapses in law-making process noted earlier, they suggest a cross-institutional and cultural failure to take religion and religious freedom seriously. More attention and more clarity may be forthcoming when a challenge to COVID-19 restrictions mounted by several churches and mosques comes to court later this year.[xvii]
This is an extract from my recent research paper for Maxim Institute, COVID and Our Constitution.
[i] Stats NZ, “Losing our religion,” 3 October 2019, https://www.stats.govt.nz/news/losing-our-religion (last accessed 20 April 2022).
[ii] Stats NZ, “Losing our religion”; NZ Faith and Belief Study, “16% churchgoer – at least monthly,” Wilberforce Foundation, https://nzfaithandbeliefstudy.files.wordpress.com/2018/05/faith-and-belief-infographic-may-2018.pdf (last accessed 20 April 2022).
[iii] Theis Oxholm et al, “New Zealand Religious Community Responses to COVID‑19 While Under Level 4 Lockdown,” (2021) Journal of Religion and Health 60:16–33.
[iv] Sections 13 and 15 of the New Zealand Bill of Rights Act 1990.
[v] Jeff Orr, “Consistency with the New Zealand Bill of Rights Act 1990: COVID-19 Public Health Response Bill,” [3].
[vi] Jeff Orr, “Consistency with the New Zealand Bill of Rights Act 1990: COVID-19 (Vaccinations) Legislation Bill,” [3].
[vii] Yardley v Minister for Workplace Relations and Safety, [49].
[viii] Finance and Expenditure Committee, Inquiry into the operation of the COVID-19 Public Health Response Act 2020, 10.
[ix] Finance and Expenditure Committee, Inquiry into the operation of the COVID-19 Public Health Response Act 2020, 10, referring to s20(8).
[x] Borrowdale v Director-General of Health (High Court), [87].
[xi] Borrowdale v Director-General of Health (High Court), [89].
[xii] Borrowdale v Director-General of Health (High Court), [292].
[xiii] Borrowdale v Director-General of Health (Court of Appeal), [105].
[xiv] New Zealand Health Professionals Alliance v Attorney-General [2021] NZHC 2510, [109]-[110], [115].
[xv] New Zealand Health Professionals Alliance v Attorney-General, [108], and citing US President Joe Biden’s Catholicism and support for abortion at footnote 64.
[xvi] Yardley v Minister for Workplace Relations and Safety, [49].
[xvii] Family First, “Important Update – Judicial Review on Church Vaccine Mandates,” 24 December 2021, https://familyfirst.org.nz/2021/12/24/important-update-judicial-review-on-church-vaccine-mandates/ (last accessed 20 April 2022); Local Matters, “Groundbreaking Covid case – Churches v State,” 11 March 2022, https://www.localmatters.co.nz/news/groundbreaking-covid-case-churches-v-state/ (last accessed 20 April 2022).
The retreat of religious freedom
It is a great pity that it seems government bureaucrats are not educated in world history and philosophy, and thus are unable to exercise intelligent objectivity.
Perhaps a good place to start, if we were really interested in contributing to the common good, would be to teach in our schools philosophy and world history - not a sanitized version which racistly eulogizes noble savages and cancels slavers, but the full version with all its warts and seeping wounds. There's no place to start like reality