Max and Meg Wallace
On 31 July 2013 submissions closed to the New Zealand government’s Constitutional Advisory Panel concerning a constitution for New Zealand. New Zealand, like England, does not have a written constitution. On 13 July 2013 there was a day-long seminar sponsored by the Law Faculty at Victoria University in Wellington on the question of separation of church and state. But the Constitutional Advisory Panel subsequently ignored submissions concerning lack of separation in its Report.
New Zealand is not alone in blindsiding and misleading citizens about the lack of constitutional separation of church and state. In Australia, there has been no High Court case interpreting s.116 of the federal constitution, which is based on the American First Amendment, to mean separation of church and state. Indeed, the High Court differed from the US and indicated there is no separation of church and state in Australia, but the judges’ words do not appear in any constitutional law textbook. Separation is always framed in ways that favour a constitutional monarchist reading of the constitution.
The six Australian states also have constitutions written between 1840 and 1859. None of them have a section separating church and state. In fact, in 1853, a major figure in Australian, and to some extent, New Zealand history, William Charles Wentworth, said in the parliament that the New South Wales constitution would be a British constitution ‘not a Yankee one.’ New Zealand, formerly a part of the colony of New South Wales, became a separately governed British Dominion in 1840.
Canada, like New Zealand, has a Constitution Act to do the work of a Constitution. There is no section in the 1867 Constitution Act separating church and state. Similarly, in the New Zealand 1986 Constitution Act, there is no such section. Canadian Prime Minister Stephen Harper has come right out and said separation of church and state is an American constitutional concept that does not apply to the Canadian constitution. While Canada dropped the Union Jack (a composite of crosses of Christian saints) from its flag to be replaced entirely by the maple leaf, that was done to placate the secessionist, French-speaking citizens of the province of Quebec.
So, what should former British colonies do? A likely step in the right direction can be found in an unlikely place: Fiji. This small, troubled nation became a republic after a coup in 1987. Twenty five years later, the question of separation of church and state was addressed by a Constitution Commission, established in 2012, comprising some eminent persons headed by Professor Yash Ghai. On 6 September 2013, the new constitution was promulgated. It includes this section:
- (1) Religious Liberty, as recognised in the Bill of Rights, is a founding principle of the State.
- (2) Religious belief is personal.
- (3) Religion and the State are separate, which means
- (a) the State and all persons holding public office must treat all religions equally;
- (b) the State and all persons holding public office must not dictate any religious belief;
- (c) the State and all persons holding public office must not prefer or advance, by any means, any particular, religion, religious denomination, religious belief, or religious practice over nother, or over any non-religious belief;
- (d) no person shall assert any religious belief as a legal reason to disregard this Constitution or any other law.
The largest, most influential church in Fiji, the Methodist, opposed separation vociferously. It wanted Fiji to identify as a Christian nation. However, very importantly, both the Church of England and the Catholic Church in Fiji initially embraced separation. They seemed to take Professor Ghai’s point that separation of church and state is not ‘anti-religion, but just a feeling that the function and responsibility of religion or beliefs within societies should be separated from the functions and policies of the institution of the State.’ Later, closer to the September 2014 election, which is now partly a debate about the role of religion in government, the Catholic Church has backed away from its earlier support.
Canada, Australia, and New Zealand are in the awkward position of being constitutionally compromised by having a major religious figure, the Supreme Governor of the Church of England in England, the Queen, as head of state. The theocratic symbol of ‘the Crown’ with its Christian cross atop is reconfirmed in New Zealand by the appalling National Anthem, God Defend New Zealand, which is effectively a Christian hymn; Parliament opens with Christian prayer; the flag still has the Union Jack. We note that the government will be holding a referendum to replace the flag with a silver fern on a black background, a step in the Canadian direction.
One might argue that the remaining Christian symbols are mere remnants of the past, and of no real importance. So, why are they still there, and, in fact, enhanced in Australia and New Zealand by the recent the return of knighthoods? What they really are, are symbols of constitutional monarchist power. We are reminded of this every day with the currency we carry in our pockets. Turn over any coin and there is the head of state who also happens to be the Supreme Governor of the Church of England in England. We carry the constitutional position of the British in our pockets. Is this what we want in 21stC Canada, Australia and New Zealand? The citizens are much more multicultural than they were in the 19thC. To many non-Anglo citizens the current system of government may seem non-inclusive. Fiji, on the other hand, plans to remove the Queen’s face from its currency; the Queen’s birthday public holiday has been abolished; plans to remove the Union Jack from the flag were advanced before it occurred to New Zealand.
CONCLUSION: genuine constitutional separation of church and state may not be possible in the constitutional monarchies of Canada and New Zealand. The republican-style s.116 in the Australian Constitution is yet to be properly tested. It seems likely however that separation would be more easily achieved if the three nations were republics, without the trappings of privilege and custom derived from a top-down attribution of status and power, rather than the fully democratic power of the people. Genuine separation occurs in three possible ways:
Separation is legislated by a parliament (France, 1905); a constitution implies separation and is interpreted that way by the highest court (US, 1947, 1948); separation is written into a constitution (Fiji, 2013).
It is widely believed that because a nation does not have an ‘established’ church – an official, legislated religion of the state (England), or officially promotes a particular religion – there is separation of church and state. But this mistakes partial, conventional separation for complete constitutional separation.
By conventional separation we mean the notion that because (1) churches do not participate in parliamentary lawmaking, and (2) government respects the separate jurisdictions of church and state without a formal, legal distinction, it follows there must de facto be separation. This is simplistic to say the least. It means that there can be state-religion entanglement as found in Canada, Australia and New Zealand where governments, variously …
- Openly support the private beliefs of the religious, and to a much lesser extent, alternatives to religion, with the use of public money via tax exemptions and donations.
- Allow exemptions and exceptions to law that do not apply to others.
- Bow to the influence of religion concerning, for example, a woman’s right to choose and voluntary euthanasia.
- Subsidise proselytism and indoctrination through very significant religious school funding.
- Fund or allow religious instruction and religious chaplaincy in public schools.
The census is telling us citizens are moving away from religious identification while governments still embrace it. In New Zealand Christianity declined to 43.47 per cent in the 2013 census while citizens stating they had ‘no religion’ rose to 38.55 per cent in a long-term, continuing trend. It is doubly ironic that a very small nation, Fiji, with a large majority of citizens who are religious, can define itself constitutionally as a secular state, whereas Canada, New Zealand, and Australia with declining religious adherents – cannot!
We believe it is not hard to find the number one reason (not the only one) for the former British colonies’ stonewalling on constitutional separation, preferring to persist with power from above rather than the full realisation of secular democracy: religious school funding. The political trade off for religious school funding is the perception of votes. We suggest proselytising religious schools are the tail that wags the dog of the body politic. In the United States, 90 per cent of children attend public schools because the Supreme Court has found federal funding of religious schools there to be unconstitutional. Rob Boston’s summary of the current fate of Catholic schools in the United States poses a total contrast with their situation in Canada, Australia and New Zealand, exposing, by inference, the former British colonies’ constitutional monarchist protection racket:
The Catholic hierarchy is essentially seeking a taxpayer-financed bailout of its troubled private school system. Statistics tell the story: in 1960, 5.2 million youngsters attended approximately 13,000 Catholic schools. Today, those numbers are 2.3 million students in 7,500 schools. Eager to stop the freefall, the bishops have for years lobbied for handouts from the taxpayers. (‘Challenging the ‘School Choice’ Charade’, Church & State, March 2014)
In the case of Canada, Australia and New Zealand, the taxpayers have been handing out what now amounts to multiple billions of dollars to religious schools. Constitutional separation of church and state as it is defined in the Republic of the United States and expressed in a denial of funding for religious schools – threatens these arrangements, and so the very idea of separation is defined out of existence keeping citizen taxpayers blindsided, in the dark, paying and beholden to a tax-avoiding, absent monarch. The legitimacy of these arrangements has been questioned recently in Canada but remain under the radar in Australia and New Zealand.