Academic journal article University of Queensland Law Journal

How Well Is Religious Freedom Protected under a Bill of Rights? Reflections from New Zealand

Academic journal article University of Queensland Law Journal

How Well Is Religious Freedom Protected under a Bill of Rights? Reflections from New Zealand

Article excerpt


The New Zealand Bill of Rights Act 1990 ('NZBORA') is approaching its twentieth anniversary. This article seeks to draw some lessons from the last two decades. Australia has been grappling with the potential introduction of a national Charter or Bill of Rights. (1) The Attorney-General Robert McClelland on 21 April 2010 announced the Government will not introduce a national Charter: 'The enactment of human rights should be done in a way that unites, rather than divides our community', he said. (2) Instead, the Government will invest some $12m in education initiatives to promote greater understanding of human rights and establish a Parliamentary Joint Committee on Human Rights. All bills introduced will be vetted to ensure their compatibility with Australia's international human rights obligations. Complying legislation would be issued with a statement of compatibility. (3)

Despite the view of former NSW premier, Bob Carr, that the issue is 'off the agenda in Australia for at least 30 years' that seems highly unlikely, even for an observer from this side of the Tasman. First, the Government announced there will be a review of the changes introduced in 2010 in 2014. (4) Second, the broad constituency of human rights groups, and other proponents, of a charter of rights are not likely to go away. Disappointed supporters of a national charter were unbowed. For example, Human Rights Commissioner Catherine Branson stated she hoped the question would be reopened in 2014: 'It is very much on the agenda--it is not off the agenda at all'. (5) The 2010 initiatives were, she insisted, merely 'a stepping stone' to a charter emerging after the 2014 review. (6) For Professor Frank Brennan, who chaired the 2009 National Human Rights Consultation Committee, a positive report on the Victorian Charter of Rights in the 2011 review of that state's rights instrument would give impetus for a Commonwealth Act to be re-considered in the 2014 review. (7)

It is fair to say that the pros and cons of a charter of rights will continue to be actively debated. Accordingly, it might be useful for Australians to consider how one significant right, the right of religious freedom, has fared under New Zealand's Bill of Rights. This right received considerable attention in the recent Australian debate: the potential erosion of religious rights, if a charter should be introduced, featured prominently in the opponents' (ultimately successful) case against a charter. (8)

Part II of this article examines the genesis of the NZBORA and tightens the focus by recounting the opposition in New Zealand by one major and particularly vociferous opponent to it, conservative religionists. It is no coincidence--given their broadly similar cultural and religious topography--that Australian conservative Christian voices also feature prominently in the opposition to a proposed Bill of Rights. In his comprehensive analysis, Professor Patrick Parkinson, notes:

   The divisions about a Charter of Rights were seen in all parts of
   the community. There is ... one quite prominent sector of
   Australian society in which opposition to a Charter has been rather
   more evident than support for it. That is in the Churches....
   Submissions to the NHRC [National Human Rights Consultation] that
   are critical of a Charter, apart from the Australian Christian
   Lobby, include the Presbyterian Church of Australia, the Baptist
   Union of Australia, the Anglican Diocese of Sydney, the Life,
   Marriage and Family Centre of the Catholic Archdiocese of Sydney,
   and the Ambrose Centre for Religious Liberties (a body which has an
   advisory council that includes senior figures from a number of
   different faiths).... While the Catholic Bishops collectively did
   not take a stand either way, Cardinal George Pell, the Church's
   most prominent leader, has been an outspoken critic of a Charter.

What were (and, in contemporary Australian political discourse, are (10)) their particular concerns? …

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