Amicus Curiae: To Believe or Not To Believe – Is There a Right Approach to Secularisation in Schools?

Content Contributor, Hannah Yang

A year-long case over Bible lessons in state primary schools has recently been dismissed by the High Court after court documents were not submitted in time before the deadline. The case arose in 2015 between Auckland parent Jeff McClintock, and the Red Beach School Board of Trustees and the Attorney General, after McClintock’s daughter was allegedly placed in Bible lessons without parental permission.

Mr McClintock, who has been joined in his case by the Secular Education Network (SEN) and the Human Rights Commission (HRC), seeks an end to the opt-out system currently in place, and challenges the legality of the section of the Education Act 1964 allowing for religious instruction in schools, also known as the “Nelson Clause”. The HRC states that these proceedings have implications for human rights, and concern certain sections of the New Zealand Bill of Rights Act 1990.

Mr McClintock is now seeking to appeal the High Court decision to dismiss the case. If successful, this could see New Zealand’s first court case against religious instruction in schools.

It should first be noted that religious instruction differs from religious education. The HRC defines religious instruction as the teaching of a faith in its own right, encouraging students to accept the faith. On the other hand, religious education is the teaching about religion(s) in the wider context of society, and does not promote acceptance of these beliefs. In this sense, religious education would not be inconsistent with New Zealand’s status as a secular state, which means that New Zealand does not officially endorse any religion or irreligion over another. The concern here is over religious instruction.

Strictly speaking, religious instruction in state primary schools is legal under current New Zealand law. While section 77 of the Education Act 1964 dictates that state primary schools are to be “entirely of a secular character”, section 78 of the Act, or the so-called “Nelson Clause”, allows schools to close for religious instruction for no more than 60 minutes a week and a total of 20 hours a year, at the discretion of the school Board of Trustees. Section 79 of the Act allows pupils to be opted-out of such programmes if parents or guardians make this wish known to the school in writing. These are some of the few sections of the 1964 Act that have not been replaced by the newer Education Act 1989.

The Education Act 1964, however, is not the only statute to which school boards are subjected. Every New Zealander has the right to freedom from discrimination on the grounds of religious belief or non-belief, which is affirmed in the New Zealand Bill of Rights Act 1990. While the Bill of Rights Act strictly does not affect other legislation and may be considered aspirational in nature, the question is still pertinent as to whether the current allowances for religious instruction under the Education Act 1964 lead to discriminatory practices that breach these rights.

Opponents of the “opt-out” system argue that it leads to discrimination against (non-)religious minorities by singling children out. Mr McClintock claims that his daughter was placed in the “naughty corner” of the classroom during Bible lessons after being opted out, while another case highlighted by media involved a pupil who was allegedly made to do dishes. While New Zealand courts have yet to deal with this issue, this position is not without legal authority overseas. In Canada, for example, the Ontario Court of Appeal has ruled in Zylberberg v Sudbury Board of Education that a right to be exempt from religious observances in schools does not save a regulation that allows the practice, as there is still “a compulsion to conform to the practices of the majority”.

The wider debate on the place of religious instruction in state schools also relates to similar issues relating to the Bill of Rights Act, but engages more arguments of general principle. Opponents to religious instruction claim that this allowance is inconsistent with true separation of church and state, as it means not all faiths will be given equal treatment by the state, violating the principle of religious equality. On the other hand, Murray Burton from the Churches Education Commission (CEC), which provides Bible studies to state primary schools in New Zealand, has pointed out that the Education Act does not limit what religion schools choose to incorporate, leaving faiths other than Christianity free to give religious instruction if they so choose. In 2015 CEC was allowed to join the case between Mr McClintock and Red Beach School to give evidence, after the court held that the case had potential to affect their interests. CEC’s policy statement expresses belief in a need to emphasise the Christian faith in New Zealand due to its “pervasive influence”, and “continuing power and relevance.”

Historically, Christianity has been the dominant religion in New Zealand. However, recent census data reveals that secularisation is rising, with those identifying with no religion increasing from 35% in 2006 to 42% as of 2013. Should this case finally proceed to trial, it is unknown whether New Zealand will follow the approach of the Canadian courts, or take our law into a new direction.

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