Finding separation of church and state for New Zealand

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 in Wellington on the question of separation of church and state. One reason for this seminar was the lack of constitutional separation in New Zealand .

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 was addressed by a Constitution Commission, established in 2012, comprising some eminent persons headed by Professor Yash Ghai. On 6 September 2013, the day before Australia's federal election, the new constitution was promulgated.

It includes this section:

Secular State

4.- (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 another, or over any none-religious belief; and