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Monday, 26 August 2013



*Max Wallace and Meg Wallace

On 31 July this year submissions closed to the government’s Constitutional Advisory Panel concerning a constitution for New Zealand. New Zealand, like England,  does not have a written constitution.

On 13 July there was a day-long seminar sponsored by the Law Faculty at Victoria University on the question of separation of church and state. One of the motivations behind this seminar was that discussion of constitutional separation in New Zealand is an absent category.

New Zealand is not alone in this respect. In Australia, there has been no High Court case interpreting s.116 of the federal constitution, based on the American First Amendment, to mean separation of church and state.

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.’ 

In Canada, 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 New Zealand do? The likely answer can be found in another former British colony, not so far away: 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 has been addressed by a Constitution Commission, established in 2012, comprising some eminent legal scholars headed by Professor Yash Ghai. Draft provisions for a new Constitution are now under consideration.  

Section 4(1) of the Draft Constitution proclaims that Fiji is a secular state. It says religious or other belief is personal, and religious or other belief, and the state, are separate. Separation is prescribed in further detail.

The Methodist Church of Fiji opposed separation, wanting Fiji to identify as a Christian nation. However, very importantly, both the Church of England and the Catholic Church in Fiji have embraced it. They seem to have taken 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.’

The conclusion we could reach from this example is that genuine constitutional separation of church and state is not possible in the constitutional monarchies of Australia, Canada and New Zealand. It seems likely all three would have to become republics for separation to be achieved.

Genuine separation occurs in three possible ways:

  • Separation is written into a constitution (Fiji);
  • A constitution implies separation and is interpreted that way by the highest court (US);
  • Separation is legislated by a parliament (France).

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. Lack of an established church means only what it says: that there is no established church. By itself, it does not guarantee constitutional separation as detailed above.
This leaves New Zealand 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 by the National Anthem, God Defend New Zealand, which is effectively a Christian hymn. Parliament opens with Christian prayer, the flag still has the Union Jack. 

One might argue that these are mere remnants of no real importance. So why are they still there, and, in fact, enhanced by 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 New Zealand? The population is much more multicultural than it was in the 19thC. To many non-Anglo, non-Māori citizens the current system of government may seem non-inclusive.
We hope that the Constitutional Advisory Panel, when it reports, has heard what was said at Victoria University on 13 July. We need to get lack of constitutional separation of church and state in New Zealand, and the likely reasons for it, openly discussed. The Census is telling us citizens are moving away from religious identification while the government still embraces it.

*Max and Meg Wallace are members of the New Zealand Association of Rationalists and Humanists. Dr Meg Wallace was one of the speakers at the 13 July seminar.

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