Gary Judd KC: The Issue Raised by the Army Orders

Army Orders and the State’s Duty of Neutrality

This morning The Law Association of New Zealand’s LawNews published an earlier version of the following article, prompted by Alex Penk’s How Army orders sparked debate on religious freedom protections under BORA published by LawNews last Thursday. I commend Penk’s article to you, as it contains more about what the Army has been up.

The Army orders raise a serious issue under s13 of the New Zealand Bill of Rights Act because they appear to require personnel to engage with, or at least affirm the significance of, a particular religious or cosmological framework under threat of discipline.

Alex Penk in his recent LawNews article How Army orders sparked debate on religious freedom protections under BORA tells readers:

After controversy broke out, the advocacy group I lead, Ethos, used the Official Information Act to ask the Army about any consideration it had given to the policy’s and order’s implications for freedom of conscience, religion and belief. The response: “The information does not exist.”

Where does this leave troops who don’t share these beliefs, whose own faith may put them directly at odds with this purported foundation for service?

Apparently, the Army has not thought this through.

The orders are meant to provide “a single point of reference for all Army personnel matters”, and failure to comply can have disciplinary consequences.

They reference s 39(b) of the Armed Forces Discipline Act 1971, which provides that failure to follow orders is an offence punishable by up to two years’ imprisonment. This is the context in which the orders explicitly state that it is crucial for Army personnel to “understand the cosmological traditions associated with the deity whose name we bear.”

 

This Is Not a Cultural Question

The concern arises because the orders invoke a named deity and associated cosmological traditions and is sharpened because the orders are binding and enforceable by disciplinary procedures.

The objection is not to Māori language or tikanga as such. The legal issue arises where the government appears to endorse, teach, or compel engagement with beliefs. It arises irrespective of what those beliefs are. The fact that the belief system long predates the modern New Zealand state does not remove the government’s duty of neutrality.

State Neutrality and Freedom from Interference

The Bill of Rights applies to acts done by the Defence Force because the Force is part of the executive branch of the government of New Zealand: s3, New Zealand Bill of Rights Act 1990. Freedom of thought, conscience, religion and belief, including the right to adopt and hold opinions without interference, is one of the rights the BOR affirms, protects and promotes (long title and s13).

It is therefore disturbing but not surprising that the Army has no information about the consideration it gave to the implications for freedom of thought, conscience and religion: “The information does not exist.”

It is not surprising because many organs of the government do not sufficiently appreciate that the Bill of Rights does not just affirm rights and freedoms, but in s13 and elsewhere it imposes duties of state neutrality and non-interference. In their seminal work, The New Zealand Bill of Rights Act: a commentary (2005), Andrew Butler and Petra Butler say of s13:

The acknowledgement of an individual’s freedom of religion and belief and the consequential pluralism of beliefs, thought and religion demands neutrality from the state and tolerance from its citizens. State neutrality means that it renounces any claim to knowing the truth and is impartial in relation to all religions and beliefs.

In Mendelssohn v Attorney General [1999] 2 NZLR 268, the question arose whether s 13’s guarantee of freedom of religion required the government to intervene to prevent interference with the operation of a charitable trust established to further religious purposes. In holding that the government did not have a positive duty to protect religion, Mendelssohn explained that s13 imposes a negative duty compelling the state not to interfere with freedom of conscience and religion. That is exactly the principle in play here.

In the judgment delivered by Keith J the Court of Appeal said (emphasis in the original):

[14] The short answer to this submission is that in their essence those provisions [which include s13] do not impose positive duties on the state, at least in any sense relevant to this case. Rather they affirm freedoms of the individual which the state is not to breach. The very nature of these rights and freedoms means that they are freedoms from state interference. These rights and freedoms are affirmed by s 2 against acts of the various branches of the state (referred to in s 3) including the Executive branch.

Some 18 years later, the Privy Council delivered its decision in Commodore of Royal Bahamas Defence Force and others v Laramore [2017] UKPC 13.

Laramore, a soldier who had converted to Islam refused to participate in colour parades at which Christian prayers were said. He was charged with disobedience, but before the resulting disciplinary proceedings were concluded, he issued a claim successfully challenging the constitutionality of rules purporting to permit the Defence Force to compel participation and claiming damages. The Privy Council upheld the lower court decisions that the Bahamas constitution had been breached and awarding damages.

As can be seen, it is strikingly relevant to Alex Penk’s description of the Army’s activities.

Both situations concern a military institution, both concern orders or rules backed by discipline, both concern participation in or compliance with conduct bearing religious content, and both raise the question whether service discipline can justify interference with conscience.

The provision of the Bahamas Constitution on which Laramore’s claim was based provides:

Except with his consent, no person shall be hindered in the enjoyment of his freedom of conscience, and for the purposes of this Article the said freedom includes freedom of thought and of religion, freedom to change his religion or belief and freedom, either alone or in community with others, and both in public and in private, to manifest and propagate his religion or belief in worship, teaching, practice and observance.

In words which echo Keith J’s although Mendelssohn was not cited, Lord Mance, delivering the Privy Council’s decision, stated (para 11) that

The conferral or guarantee of freedom of conscience or religion constitutes a promise that such freedom will be protected, and not interfered with by, the state.

It follows that when s 13 of the BOR states that everyone has the right to freedom of thought, conscience, religion and belief, it means that such freedoms will not be interfered with by the government. Section 13 goes further to state that the freedom so guaranteed extends to “opinions” which everyone has the right to adopt and hold “without interference”.

Latimore’s freedom was interfered with by the Bahamas Defence Force, so he was entitled to and received relief.

Laramore also illustrates that state neutrality is ubiquitous, underscoring the point made earlier that the government is prohibited from endorsing or appearing to endorse, teach, or compel engagement with any belief system whatever its origins. The Board said (para14):

Freedom of conscience is in its essence a personal matter. It may take the form of belief in a particular religion or sect, or it may take the form of agnosticism or atheism. It is by reference to a person’s particular subjective beliefs that it must be judged whether there has been a hindrance. No doubt there is an objective element in this judgment, but it arises only once the nature of the individual’s particular beliefs has been identified.

In Laramore, the focus was on the infringement of Laramore’s rights. The New Zealand Army orders engage the Army’s failure to honour the obligations imposed on the government and its agencies. As Mendelssohn shows, the government must not interfere. It must be neutral in all such matters. It must not put a person, in this case a person serving in the Army, in a position where he or she must choose between subjugating conscience or obeying conscience and risking disciplinary procedures.

Conclusion

Laramore demonstrates that if Army personnel are required, on pain of discipline, to conform to or engage with religiously significant beliefs, that will interfere with the freedom affirmed by s 13. Unless it can point to a specific statutory provision authorising it to act in this way, the Army’s only escape route is s 5: “Subject to section 4 [which prevents other legislation being overridden], the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

The Army would have an uphill battle trying to justify the limits its orders impose on s13 freedoms.

Although the present focus is on the Army Orders, it will be readily apparent that the principles explained in Laramore are applicable to any branch of government and to all who perform public functions, powers or duties conferred or imposed by or pursuant to law (save that parliamentary sovereignty allows the legislative branch to ignore them if prepared to take the political consequences).

Gary Judd KC is a King's Counsel, former Chairman of ASB and Ports of Auckland and former member APEC Business Advisory Council. Gary blogs at Gary Judd KC Substack where this article was sourced.