Introduction
There has long been speculation that with the passing of Queen Elizabeth II and her replacement by King Charles III, New Zealand may give more consideration to becoming a republic.However, if that becomes possible, it is likely that New Zealand will simply exchange its current status from a Christian constitutional monarchy to a Christian republic.
A central issue is that separation of church and state in New Zealand is understood as (1) lack of an established church and (2) equality between religions, which is inconsistent with stricter definitions of separation. That is unlikely to change.
Some History
In the New Zealand Law Journal of April 7, 1959, Ivor Richardson, Professor and later Dean of the Law Faculty, Victoria University, later Judge of the High Court, Court of Appeal, Privy Council member, knighted in 1986, said at p.91:
… the law in many respects favours religion in general and Christianity in particular, as against agnosticism and atheism. In doing so, the state is respecting the religious interests of the people of New Zealand generally … our institutions and our traditions presuppose a Supreme Being and we are basically a religious people. In making special provision for charities and religious groups and in favouring religion generally, the State is simply recognizing the religious nature and needs of the people of New Zealand … the State has used Christianity as its basis and has drawn heavily on Christian ethics.
At the 1961 Census 82.5 per cent of New Zealanders said they were Christian. Only 0.7 per cent said they had ‘no religion’.
At the 2018 Census, 48.5 per cent of citizens said they had ‘no religion’. Christianity slipped to an all-time low of 37 per cent.
This major shift raises the question of why the government continues to operate as if Sir Ivor’s 1959 majoritarian argument still holds.
A New Zealand Rationalist and Humanist Association (NZARH) Colmar Brunton survey in 2016 found that 56 per cent supported formal separation of government and religion, 15 per cent disagreed with separation, and a concerning 29 per cent did not have an opinion.
That sounds fairly positive for a formal separation of government and religion to be realized when New Zealand becomes a republic. The problem is, without political support for separation, which is currently lacking, little will change.
The weak form of separation of religion and government – equality between all religions (with no mention of non-belief) and an absence of an established church as one that identifies as the official religion – is simply not sectarian. It allows government-religion entanglement with all religions. This is likely to continue, irrespective of how low Christianity declines in a future Census.
To his credit, Sir Ivor, who completed his LLM and SJD in the 1950s in the United States, where a stricter separation of church and state has been a defining characteristic of government since the Everson (1947) and McCollum (1948) Supreme Court cases, also recognized this in the NZLJ …
Although there is no established church, and although the various denominations rank equally in law, it does not follow that there is a complete separation of Church and State in New Zealand.
The McCollum case was an example of complete separation of church and state: it led to the banning of religious instruction in American public schools.
However, Sir Ivor’s legal opinion here has been overlooked by the authors of the Encyclopedia of New Zealand who say in an article revised as recently as 2018 that …
The first New Zealand Parliament enshrining ‘a perfect equality in religious denominations’ in 1854, separated church and state more sharply than in the Australian colonies.
Sir Ivor’s much later paper ‘Private Acts of Parliament’, Victoria University Law Review, 33, 2010, impressively written when he was 80 years old, details as many as forty-seven pieces of legislation concerning church matters, which have been passed by the parliament. This later paper helps to drive home the point he made in 1959.
For example, the Roman Catholic Bishops Empowering Act 1997 was assented to on 28 October 1997. It was introduced by the Hon Richard Prebble on behalf of six Catholic bishops. There was no debate, the legislation was passed on the voices, it was not reported in the media, and Mr Prebble claimed, without any detailed justification for his very broad claim that …
I am satisfied that this Bill is the only way the Catholic Church can make these amendments. To do it by court would require dozens and dozens of very expensive court cases.
There is no suggestion here that Sir Ivor would have endorsed a stricter definition of separation, but, to his credit, Sir Ivor recognised in the VULR, no doubt from his experience in the United States as a law student and doctoral candidate, that private legislation could be unconstitutional there:
The purpose of constitutional prohibitions against special or local legislation [in the United States] is to prevent legislature from providing benefits or favours to certain groups or localities.
This goes to the heart of the matter as to why New Zealand will likely become a Christian republic instead of a secular one: various financial preferences have been given to religions in New Zealand, especially funding of their schools; most importantly, their tax privileges, and direct entanglement such as when the parliament passes legislation concerning church matters.
Then there is the symbolism: the national anthem, God Defend New Zealand; the Christian prayers in parliament; the flag with the Union Jack with its three Christian crosses; the image of the Christian monarch on the currency; Christian public holidays; knighthoods and other titles awarded; Christian post office stamps and so on. So much for all religions being treated equally!
Conclusion
The whole point of the exercise in limiting the definition of the ‘secular’ state as one where all religions are supposedly equal, and treated as such, I suggest, is to prevent secular citizens going to the courts to argue any, or all, of the above, are unconstitutional on the grounds that separation of church and state precludes government entanglement with religion.
The explanation for a lack of commitment to the separation of government and religion ideal goes to the detail of the religious commitments of members of parliament, the lack of a current groundswell of public opinion about the issue, disinterested media, and a lack of academic interest.
That would be the subject of another article.
At this point in time, it is going to require a sea change if New Zealand is to become a republic with a real, rather than a feigned, constitutional separation of church and state.
Max Wallace is secretary of the Secular Association of New South Wales, and a member of the NZARH. He edited their recent publication Māori Boy Atheist, by Eru Hiko-Tahuri.