Chapter 9: The right to freedom of religion and belief
Te tika kia watea ki te whai whakapono, ki te whai haahi

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
(Universal Declaration of Human Rights, Article 18) [1]

1. Introduction — Timatatanga

What is the right to freedom of religion and belief?

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The right to freedom of religion and belief includes the right to hold a belief, the right to change one’s religion or belief, the right to express one’s religion or belief, and the right not to hold a belief. The right to believe is not limited to religion. It also includes atheistic beliefs, as well as matters of conscience such as pacifism and conscientious objection to military service (Jayawickrama, 2002, p.653).

The protection of religion and belief extends to communities of interest as well as individuals. It does not preclude criticism of beliefs, but requires tolerance of the beliefs of others.

The right to express a belief encompasses a range of activities (Office of the High Commissioner for Human Rights, 1981, Article 6) including:

Worshipping, observing and teaching one’s beliefs can be practised within the community of interest or alone, both publicly and privately.

Limitations

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The freedom to act in accordance with one’s religion is not as wide as the freedom to believe. Limitations can be imposed on how religion is expressed, particularly where matters of public safety or the fundamental rights and freedoms of others are affected.

2. International context — Ki ngā kaupapa o te ao

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The right to freedom of religion is referred to in a number of international treaties. The most significant is the International Covenant on Civil and Political Rights (ICCPR), which:

Article 20(2) provides that ‘any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’

Also relevant are the Convention on the Rights of the Child (UNCROC), which guarantees the child’s right to freedom of thought, conscience and religion (Article 14) and the right of children who are Indigenous or belong to a minority to group to profess and practise their own religion, and ILO Convention 111 on Discrimination (Employment and Occupation), which prohibits discrimination in employment on the grounds of religion.

3. New Zealand context — Ki ngā kaupapa o Aotearoa

New Zealand law, structures and processes

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New Zealand Bill of Rights Act 1990

The New Zealand Bill of Rights Act (BoRA):

Human Rights Act 1993

The Human Rights Act (HRA) prohibits discrimination based on religious and ethical belief (which the HRA defines as lack of a religious belief, whether in respect of a particular religion or religions or all religions) in employment, in partnerships, in access to places, vehicles and facilities, in the provision of goods and services and in the provision of land, housing and accommodation. The Act does provide, however, for specific exceptions for purposes of religion; for example, in relation to the employment of a principal or teacher in an integrated or private school, or of a social worker by an organisation whose members are adherents of a particular belief (s. 28(2)). It also allows for educational establishments maintained wholly or principally for students of one religious belief (s. 58(1)).

The exceptions in the HRA are designed to respect the religious beliefs of adherents. The international human rights standards give protection to the expression of religion and belief regardless of whether a particular religion or belief embraces doctrines or theology that contradict those human rights standards. Within their own communities, for example, religious groups are not legally constrained from breaching human rights standards relating to freedom from discrimination. In some churches, for example, the office of minister can be held only by men. Religious groups are also able to exclude people in same sex-relationships from official positions.

The Act requires employers to accommodate the religious or ethical belief practices of an employee as long as any adjustment required ‘does not unreasonably disrupt the employer’s activities’ (s. 28(3)).

When ratifying the ICCPR in 1978, one of New Zealand’s four reservations related to any further specific legislation against advocacy of religious hatred that constitutes incitement. The reservation reads:

The Government of New Zealand, having legislated in the areas of advocacy of national and racial hatred and the exciting of hostility or ill will against any group or persons, and having regard to the right to freedom of speech, reserves the right not to introduce further legislation with regard to Article 20 (Ministry of Foreign Affairs & Trade NZ, 2003, p.163).

Treaty of Waitangi

Articles 2 and 3 of the Treaty of Waitangi both provide protection for Maori to observe and practise their religions and beliefs. Article 2 does so by reference, in the Maori version, to taonga, that is, ‘everything that is held precious’. Article 3 provides for Maori to have ‘the same rights as those of the people of England.’ Although it is not part of the text of the Treaty, Lieutenant-Governor Hobson, in response to a question from Catholic Bishop Pompallier, made the following statement prior to the signing:

The Governor says that the several faiths (beliefs) of England, of the Wesleyans, of Rome, and also Maori custom shall alike be protected (Te Puni Kokiri, 2001, pp.40–41).

Some legislation dealing with the environment makes specific reference to Maori sacred places and spiritual beliefs. For example, both the Resource Management Act 1991 and the Hazardous Substances and New Organisms Act 1996 (HSNO) require decision-makers to take into consideration ‘[t]he relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, valued flora and fauna, and other taonga’ (HSNO, 1996, s. 6(d)). The Historic Places Act 1993 also has specific provisions relating to waahi tapu.

The Mental Health (Compulsory Assessment and Treatment) Act 1992

In a further and very specific protection of religious belief and expression, the Mental Health (Compulsory Assessment and Treatment) Act 1992 provides that a person’s religious beliefs are not enough on their own to invoke the procedures and processes set out in the Act.