Hines v Attorney-General [2020] NZHC 983 (13 May 2020)

Last Updated: 22 May 2020

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1809 [2020] NZHC 983

UNDER	Human Rights Act 1993
BETWEEN	DAVID HINES First Plaintiff TANYA JACOB Second Plaintiff
AND	THE ATTORNEY-GENERAL OF NEW ZEALAND Defendant
AND	THE HUMAN RIGHTS COMMISSION First Intervenor THE CHURCHES EDUCATION COMMISSION TRUST BOARD Second Intervenor

Hearing:	19 March 2020
Counsel:	G E Whiteford for Plaintiffs P T Rishworth QC and N Fong for Defendant F M Joychild QC and J S Hancock for First Intervenor N P Tetzlaff for Second Intervenor
Judgment:	13 May 2020

JUDGMENT OF BREWER J

This judgment was delivered by me on 13 May 2020 at 3:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

HINES v THE ATTORNEY-GENERAL OF NEW ZEALAND [2020] NZHC 983 [13 May 2020]

Introduction

[1] The plaintiffs oppose religious instruction and religious observances in State schools. The Education Act 1964 and the Education Act 1989 (the Acts) permit religious instruction and religious observances in State schools under certain stated conditions. The plaintiffs seek a declaration under s 92J of the Human Rights Act 1993 that relevant provisions of the Acts create an inconsistency with the right to freedom from discrimination as affirmed by s 19 of the New Zealand Bill of Rights Act 1990.¹

[2] The plaintiffs have provided the defendant and the intervenors with their draft briefs of evidence. The defendant challenges the admissibility of parts of that evidence. The Churches Education Commission Trust Board supports the defendant’s challenge and adds to it. The Human Rights Commission supports the plaintiffs’ opposition to the challenge.

[3] In some cases questions of admissibility are left for the trial Judge. In this case the defendant needs to know the scope of the evidence to which it must respond. This judgment decides the admissibility of the contested evidence.

Background

[4] The plaintiffs originally brought these proceedings in the Human Rights Review Tribunal.²

[5] On 18 July 2018, Churchman J made an order granting leave for the proceedings to be removed to the High Court.³ On 20 July 2018, the Human Rights Review Tribunal made an order accordingly.⁴

1. The prayer for relief adds to the references to the sections in the Acts: “the omission of legislative provisions protecting secular education in State secondary schools and allowing students of minority faiths or ethical beliefs not to have to participate”. For the purposes of this judgment my focus is on the provisions in the Acts.

² Human Rights Act 1993, s 92B(1)(b).

³ Hines v Attorney-General [2018] NZHC 1776.

⁴ Hines v Attorney-General (Order Removing Proceedings to High Court) [2018] NZHRRT 3.

[6] It is significant that when a proceeding is removed to this Court from the Human Rights Review Tribunal,⁵ the Court “may exercise any power that the Tribunal could have exercised in, or in relation to, the proceedings...”.⁶ Section 106 of the Human Rights Act 1993 deals with evidential matters in proceedings before the Tribunal. Relevantly, it provides:

(1) The Tribunal may –

...

(d) receive as evidence any statement, document, information, or matter that may, in its opinion, assist to deal effectively with the matter before it, whether or not it would be admissible in a court of law

...

(4) Subject to subsections (1) to (3) the Evidence Act 2006 shall apply to the Tribunal in the same manner as if the Tribunal were a court within the meaning of that Act.

[7] The defendant sets out applicable principles drawn from two previous decisions of this Court.⁷ I agree with the defendant’s summary and I reproduce it:⁸

20.1 While s 106 confers a “very broad discretion” on the Tribunal in respect of evidential matters, the discretion must be exercised judicially.⁹ It is antithetical to fairness and natural justice to admit evidence into Court that is irrelevant or insufficiently probative.¹⁰

20.2 The Evidence Act 2006 is the “primary mechanism for regulating the admissibility of evidence before the Tribunal”, subject to the exceptions under s 106(1) – (3).¹¹

20.3 The Tribunal must first assess whether the evidence is admissible under the Evidence Act.¹² Among other things, this involves an assessment of relevance, reliability of the statement in question (if hearsay) and whether the evidence should be excluded under s 8 of the Evidence Act.¹³

⁵ Human Rights Act 1993, s 122A.

⁶ Human Rights Act 1993, s 122B(2)(a).

7. Alpine Energy Ltd v Human Rights Review Tribunal [2014] NZHC 2792 and W v Health Practitioners Disciplinary Tribunal [2019] NZHC 420.

⁸ Defendant’s submissions challenging admissibility of plaintiffs’ evidence, dated 6 March 2020.

⁹ Alpine Energy, above n 7, at [30].

¹⁰ Alpine Energy, above n 7, at [31].

¹¹ W, above n 7, at [104].

¹² W, above n 7, at [105].

¹³ W, above n 7, at [109].

20.4 The Tribunal may, secondly, in its discretion, admit the evidence if it may assist the Tribunal to deal effectively with the matters before it.¹⁴ This does not allow the Tribunal to admit inadmissible evidence as a matter of course.¹⁵ There must be “good reasons”.¹⁶ Those reasons must be fact specific and more than “merely a reference to general principles, the unique nature of the Tribunal or the purpose of the Act”.¹⁷

The scope of the admissibility challenge

[8] Counsel for the defendant filed a memorandum dated 17 March 2020 which helpfully identifies the evidence challenged. There are six witnesses involved. For three of the witnesses, including the two plaintiffs, only parts of their briefs of evidence are contested. For a further three witnesses, their entire brief is contested.

[9] The second intervenor makes its own challenges, including to portions of the evidence of two witnesses who are not the subject of challenge by the defendant.

[10] First, some context.

[11] The case for the plaintiffs, as pleaded, is that the impugned provisions in the Acts are discriminatory on their face (in that they divide children into two groups, those who will receive religious instruction or religious observance and those who will opt out). Further, the plaintiffs claim that the statutory structure leads to material disadvantage for those who opt out. The first argument is largely a matter of statutory interpretation. The second argument requires evidence to be called. It is evidence in this area which is challenged.

[12] The defendant argues that the evidence challenged is in one or more of the categories of irrelevant, hearsay, or unfairly prejudicial.

[13] The plaintiffs respond that the Court should relax the Evidence Act 2006 admissibility rules given the nature of the proceeding. Further, the plaintiffs submit

¹⁴ W, above n 7, at [105].

¹⁵ W, above n 7, at [108].

¹⁶ W, above n 7, at [108].

¹⁷ W, above n 7, at [108].

they are entitled to put before the Court evidence of the context in which their case is brought.

The evidence challenged

[14] My approach to challenged evidence is to assess it in the round. I will not examine each sentence for admissibility. A number of briefs are submitted to be inadmissible in their entirety. I will assess them in their entirety. Judges are very used to dealing with evidence that contains portions which are either strictly speaking inadmissible or which are of tenuous relevance to the issues in the trial. A pragmatic approach is called for.

Tanya Jacob

[15] Ms Jacob is a plaintiff. She is the South Island representative of the Secular Education Network (SEN). Ms Jacob proposes to give evidence both in her capacity as a SEN representative and as a parent of children who were opted out of religious instruction classes at their primary school.

[16] The defendant challenges first the evidence of Ms Jacob in paragraphs 49 – 51 of her brief.

[17] In these paragraphs Ms Jacob gives evidence of complaints by parents made directly to her or “shared” on the SEN website. In paragraphs 49 and 50 the evidence is general:

49. Many parents also talk to me privately about the situations at their children’s schools, having made contact through Facebook or word of mouth. Features of cases brought to me by parents privately and shared on the network that are extremely common, even ubiquitous are:

• opt out children being put back in RI

• misleading information to parents de-emphasising the Christian religion and creating the impression that RI is about ‘values’

• schools ignoring complaints

• boards resistant to change.

50. Features of cases brought to me by parents privately and shared on the network that I would describe as common are:

• parents not being told that RI was present in the school and only finding out by chance, such as through dinner conversation with children

• opt out children being given boring, menial things to do

• children who attend RI being rewarded with games and lollies, whilst the opted out children get none.

[18] In paragraph 51, Ms Jacob gives details of 14 specific examples but without identifying the schools or the complainants. I will quote an example:

There are cases of particular note, for several reasons, including because of particularly vulnerable circumstances, the degree of disadvantage and harm caused to the child or parent, or because of the parents’ particular role in the community, for example a business person in a small community. I outline several below:

(a) At a small rural school, school children were stood up in front of the class and told by their teacher that their parents had made “ridiculous excuses” for opting them out (when in fact they had given none), and were questioned about it publicly. They were then made to go out to the corridor to be questioned by the teacher and were told that if the religious instruction volunteer “lost her job” it would be the children’s fault. The parents never raised this with the school for fear the teacher’s bullying of the children would worsen. The children came to hate RI day because of the teacher’s mood on those days and being given worksheets during opt out and being told to be quiet – in stark contrast to how the RI children spent their time.

[19] The defendant submits the “examples of discrimination” given by Ms Jacob are hearsay and prejudicial because the defendant cannot meaningfully test the evidence. None of the schools or the individuals concerned are identified.

[20] The plaintiffs argue that Ms Jacob is an expert in this field through her involvement with SEN and her experience as a parent of children subjected to the religious instruction and religious observance provisions of the Acts. The documentary material referred to in her brief establishes that she maintains detailed and careful records and is a skilled researcher. Accordingly, the plaintiffs submit these circumstances provide reasonable assurance that the statements are reliable and should be admitted. It would be for the trial Judge to consider the evidence and draw conclusions as to weight.
[21] In my view, the experiences of parents and pupils who have seen or been affected by religious instruction or religious observances at State schools is relevant to the claim of material disadvantage for those who opt out.¹⁸ It is relevant also to establish whether material disadvantage is the exception, the rule, or somewhere in between.

[22] The plaintiffs are not in a position to call hundreds of witnesses to give evidence of what happens in hundreds of schools.¹⁹ Or even dozens of witnesses in an attempt to establish a pattern of conduct across the country. That would not be desirable in any event because it would turn a case which is essentially about human rights principles relating to freedom of religion and anti-discrimination into a giant battle of facts.

[23] Hearsay statements are those made by persons other than a witness offered to prove the truth of their contents.²⁰ Therefore, to the extent the evidence is of the fact of complaints and the content of complaints it is not hearsay. It is evidence relevant to, and probative of, the plaintiffs’ contention there is material disadvantage.

[24] To the extent the evidence is put forward for the purpose of establishing the complaints are true then it is hearsay. It is not hearsay which, on the very limited material before me as to its provenance, would provide reasonable assurance that the complaints are reliable (a prerequisite for admissibility under s 18 of the Evidence Act).

[25] I have decided to admit the statements in paragraphs 49 and 50 of Ms Jacob’s brief under the discretion conferred by s 106 of the Human Rights Act 1993. The trial Judge, having regard to all the evidence called in the case, may feel able to put evidential weight on the contents of the complaints. Or not. It is evidence of a general nature which might find a place in the overall matrix of evidence. The context of the proceeding is important.

¹⁸ Evidence Act 2006, s 7.

¹⁹ Evidence Act 2006, s 18(1)(b)(ii).

²⁰ Evidence Act 2006, s 4.

[26] I admit them also because there is little or no prejudice to the defendant. The evidence is general and does not call for detailed rebuttal. Cross-examination can readily establish factors going to weight such as the number of complaints, the period during which the complaints were received, and so on. Discovery from the plaintiffs will have to include the primary records Ms Jacob relies on to put forward her evidence.

[27] Conversely, I rule paragraph 51 inadmissible.

[28] The examples Ms Jacob gives are clearly hearsay being put forward as evidence of the truth of the statements. The mere fact complaints were made cannot satisfy the Evidence Act prerequisite that the circumstances relating to the statements therein provide reasonable assurance they are reliable.

[29] I decline to admit them under s 106. They are unfairly prejudicial. Taken together they go directly to the plaintiffs’ case but the defendant has no chance to rebut them. The complainants are not named, the schools are not identified, the periods to which the complaints relate are unknown. It would be unfair to the defendant if the trial Judge were to give the evidence any weight.

[30] Second, the defendant challenges paragraphs 94 – 101 of the brief where Ms Jacob discusses the presence of Christian youth workers and chaplains at schools. The defendant submits that the discussion is irrelevant to any issue in the case.

[31] The discussion in the paragraphs supports two expressions of opinion. In relation to Christian youth workers the opinion is:

97. ... It is clearly about putting Christian people in a position to have the ability to develop relationships with the children.

[32] In relation to chaplains at school the opinion is:

101. With no oversight and no registration there is no way to ensure chaplains stay away from topic areas for which they have no training. Faith based solutions offered in place of appropriate evidence based support to vulnerable children who may be depressed, or dealing with an issue such as sexual identity, could inflict serious harm. For this reason I see chaplains as particularly inappropriate in schools. LGBT+

students and those dealing with depression, among other things, may be subject to harmful attitudes and/or denied appropriate care either directly or indirectly as a result of the chaplain’s presence and influence at the school. The chaplain’s service, like RI, can be readily sought in the community for those families that want Christian-based pastoral care.

[33] The plaintiffs submit this is admissible evidence of the increasing encroachment of Christianity into schools and the endorsement of this by schools. The evidence is contextual in nature because religious instruction does not occur in a vacuum. The plaintiffs are prepared to make some minor amendments.

[34] I accept the plaintiffs’ point that evidence of the presence of Christian youth workers and chaplains at schools, and evidence of their purpose in being at schools, is relevant contextual evidence. It might help the trial Judge evaluate evidence, if it is given, of the social threshold children and their parents must cross in order to opt out. That is just an example. Overall, the trial Judge will be assisted by evidence which tends to prove the overall levels of religious activity within the current State schools system. There is no need to go beyond the Evidence Act.

[35] On the other hand, the evidence cannot go beyond establishing context. It cannot be used for an inadmissible purpose, such as providing a platform for the airing of Ms Jacob’s personal views on religion.

[36] Neither can it be used as the basis for the giving of opinions which Ms Jacob has not qualified herself to give.²¹

[37] For those reasons, I rule Ms Jacob cannot give the evidence in paragraph 101.

[38] I see no unfair prejudice to the defendant in permitting Ms Jacob to give the evidence in paragraphs 94 to 100. It should not be onerous to call evidence of another perspective (if there is one) of having Christian youth workers and chaplains in State schools.

²¹ Evidence Act 2006, s 23.

[39] Finally, objection is taken to paragraphs 140 and 141 of the brief which deal with religious discrimination by high school teachers. The defendant’s submission is that this evidence is hearsay and there is no reason why the complainants should not give evidence in person. It is submitted the defendant would be materially prejudiced if the evidence were given because it could not be tested or rebutted.

[40] The plaintiffs submit the hearsay elements are insufficient to exclude the evidence. Ms Whiteford pointed out that the paragraphs are based on Ms Jacob’s review of documents provided by the defendant in discovery. Ms Whiteford submits the defendant can provide the documentary evidence in rebuttal if necessary.

[41] Paragraphs 140 and 141 are:

140. There were 2 separate complaints about [a named State secondary school] centred around enforced participation of students and staff in religious observances in assemblies. The tone of that enforcement is alleged to be highly offensive. One of the complaints notes that this has resulted in racial as well as religious discrimination with regards to students of Indian descent.

141. Just looking in August 2006, there were two emails from parents of state secondary school children who complained that their child had been included in religious instruction and observances without the option given to not attend. One of these children was also given a religious text to take home.

[42] I rule these paragraphs are admissible not as hearsay statements but as evidence of the fact the complaints were made and about what. That is evidence which the trial Judge can take into account when considering the overall effect on pupils of religious instruction and religious observances in schools. It is evidence of context.

[43] The paragraphs are not admissible as evidence of the truth of the statements therein. They do not meet the Evidence Act tests for admissibility as hearsay evidence and I decline to use s 106 to admit them. It would be different if the complaints had been investigated by an impartial tribunal and upheld.

David Hines

[44] Mr Hines is a founding member of SEN. He is a council member of the New Zealand Association of Rationalists and Humanists. Mr Hines was appointed to liaise with religious groups on behalf of SEN and is SEN’s public relations officer.

[45] Mr Hines’s brief of evidence contains 152 paragraphs and runs to 44 pages. There are only two portions which are objected to by the defendant.

[46] The first objection is to paragraphs 50 and 51. Paragraph 50 is narrative and is inadmissible because it has no relevance to any issue in the trial and is incapable of tending to prove anything at all:

50. Several of our witnesses are giving evidence of schools treating students unfairly. This unfairness includes bullying of parents who complain.

[47] I rule that paragraph 50 cannot be given in evidence.

[48] Paragraph 51 is similar to paragraph 51 in Ms Jacob’s brief. It gives details of six specific examples of “parents who are afraid to complain because of peer pressure and threats to their employment”. I quote an example:

A contractor in a rural area where the parent withdrew an offer to give evidence fearing her business would be boycotted by Christians.

[49] Ms Whiteford submits the examples in paragraph 51 meet the admissibility test for hearsay evidence in the Evidence Act:

24. The extensive research and advocacy role Mr Hines has played in SEN for eight years, his profile in the organisation, his academic and journalistic background and his attention to detail, evident throughout his brief, are relevant circumstances that provide reasonable assurance that the statement is reliable. Mr Hines is in effect an expert on the topic of RI for the purposes of Part 1A litigation. Given this, and if the hearsay statements are admitted, it is then up to the Court to consider the statements and draw conclusions as to weight.

[50] As with the similar evidence of Ms Jacob, I rule paragraph 51 inadmissible.
[51] The examples Mr Hines gives are clearly hearsay being put forward as evidence of the truth of the statements. Whether or not Mr Hines is an expert in this area does not matter. His expertise cannot give reasonable assurance that the complaints made are reliable as to their contents.²²

[52] I decline to admit them under s 106. That would be unfairly prejudicial to the defendant. As I said in relation to Ms Jacob’s proposed evidence, the complainants are not named, the schools are not identified, the periods to which the complaints relate are unknown. The trial Judge could not, fairly, give the contents of the complaints evidential weight.

[53] The fact that parents make complaints, and the general areas of complaint, are relevant and can be taken into account by the trial Judge. Mr Hines might properly include in his evidence a statement along the lines:

In the period X to Y, SEN received Z number of complaints from W number of parents about religious instruction in schools. The complaints can be grouped as follows:

(a) [Number of complaints and their general nature].

[54] The second area of objection is to paragraphs 105 – 113 of Mr Hines’s brief. These paragraphs are similar to paragraphs 94 – 101 of Ms Jacob’s brief where she discusses the presence of Christian youth workers and chaplains at school. Mr Hines’s paragraphs go into some detail about the engagement with State schools of Christian youth workers other than for religious instruction.

[55] The defendant submits this evidence is irrelevant. I disagree. As I held in relation to Ms Jacob’s paragraphs, the presence and purpose of Christian youth workers in schools is relevant contextual evidence.

[56] I rule that Mr Hines may give the evidence in paragraphs 105 – 113 of his brief.

REH

[57] I note that paragraph 4 of the brief of evidence of this witness says:

²² Evidence Act 2006, s 18(1)(a).

I give this statement on the basis that my name, my profession and the names of the schools will be suppressed from the public record.

[58] Any such suppression will require application and adjudication. For the purposes of this judgment I choose not to name the witness so as to preserve the situation.

[59] REH is a mother of four young children, two of whom attend school. She is from a family “that has been non-Christian for at least 4 generations”. REH wants to give evidence of her views of religious instruction in schools, her experience of religious instruction as a young child, the experience of one of her children encountering religious instruction and her experience in challenging religious instruction at her child’s school.

[60] The defendant objects to the evidence in paragraphs 8 – 17 of REH’s brief. In these paragraphs, REH gives evidence of her experience of religious instruction in the late 1980s and early 1990s.

[61] The defendant accepts that while the evidence could be relevant, it is so dated that its evidential value is low and is outweighed by unfair prejudice to the defendant if it is admitted. The unfair prejudice, it is submitted, arises from an inability to research and rebut the allegations.

[62] I rule that REH may give the evidence in paragraphs 8 – 17. I do so because it has some relevance to the issues in the trial. It will probably have little evidential weight unless it can be placed on a continuum of effect ending at the present day. Because of its limited evidential weight any risk of unfair prejudice to the defendant is also low and insufficient to warrant exclusion.

[63] The second intervenor challenges further portions of REH’s evidence. The first challenge is to paragraphs 22 – 24.

[64] Paragraphs 22 – 24 discuss a survey of parents’ opinions on religious instruction carried out by a named school. REH says there were six responses (20 per cent of the families attending the school) of which four were opposed to
religious instruction continuing. REH says the school board did not stop religious instruction notwithstanding the results of the survey.

[65] The second intervenor submits these paragraphs are irrelevant because they relate to the application of the religious instruction programme in a particular school on a particular instance.

[66] In my view the evidence of specific experiences with the way named schools have dealt with issues relating to religious instruction is relevant contextual evidence and relevant to the pleaded claim of material disadvantage. The weight to be given to it will be for the trial Judge in the light of all of the evidence in the trial. I rule that REH may give the evidence in paragraphs 22 – 24 of her brief.

[67] The second objection to REH’s evidence relates to paragraphs 29 – 34. The second intervenor submits the paragraphs are irrelevant for the same reasons it submitted paragraphs 22 – 24 were irrelevant.

[68] The paragraphs continue REH’s description of how the named schools’ approach to religious instruction impacted on her child and on herself. For the same reasons that I admitted paragraphs 22 – 24, I admit paragraphs 29 – 34. I acknowledge that some of the evidence is hearsay (the account by REH’s child). However, given the context I find it sufficiently reliable to admit it. I do not think the evidence of such moment that it would be necessary to call the child to give the evidence.

Alison Dyson

[69] Ms Dyson is Jewish and follows the Jewish religion. She wishes to give evidence of her family’s experience of education in Europe, their experience of New Zealand education and the impact of religious instruction, and her views on the place of religion in schools.

[70] The defendant objects to the whole of Ms Dyson’s brief of evidence.

[71] The defendant submits that Ms Dyson’s evidence is irrelevant and contains nothing of probative value for determining any of the issues in the proceeding.
Ms Whiteford submits Ms Dyson’s evidence is relevant because although it does not directly relate to religious instruction in a school, her evidence “illustrates the impact of schools allowing Christian programmes to encroach into their activities. It provides further evidence of the context in which RI occurs in New Zealand”.

[72] I rule that Ms Dyson may give the evidence in her brief. I accept that in strict Evidence Act terms it is of peripheral relevance to the issues as pleaded. However, it does contain relevant contextual material and gives a specific example of the more general material I ruled admissible in the briefs of Ms Jacob and Mr Hines. I accept that Ms Dyson’s personal views are not those of an expert. However, I am mindful of the nature and purpose of this litigation. I consider the trial Judge should be able to hear careful and considered views by those affected by the operation of the legislation. Insofar as that requires relying upon s 106, then I so rely.

Penelope Ehrhardt

[73] Ms Ehrhardt is the managing director of a policy consulting business. She describes herself as a lesbian mother and a Buddhist. Ms Ehrhardt wishes to give evidence of what it feels like to be a child lesbian at a State school who has to deal with bible in schools, the impact on her child of being at a State school where “bible and burgers” was held, and how her Buddhist beliefs clash with permitting religious instruction in State schools.

[74] The defendant submits Ms Ehrhardt should not be permitted to give her evidence as briefed. The submission is Ms Ehrhardt’s brief consists largely of inadmissible opinion, addresses religious instruction outside the ambit of the 1964 Act (it was provided after school), and in parts is unfairly prejudicial.

[75] Ms Whiteford submits, broadly, that in the context of human rights litigation Ms Ehrhardt’s evidence should be put before the trial Judge as an example of how religious instruction can impact a person with Ms Ehrhardt’s beliefs and characteristics.

[76] In my view, Ms Ehrhardt’s situation is similar to Ms Dyson’s situation. I accept that much of the brief of evidence is of only peripheral relevance to the issues
as pleaded. Some of it (particularly paragraphs 6 and 7) contains opinion evidence which might not be admissible under the Evidence Act. Nevertheless, for the reasons I gave for admitting Ms Dyson’s evidence, I rule Ms Ehrhardt may give her evidence as briefed.

Merav Benaia

[77] Ms Benaia is Jewish and the mother of two secondary school aged children.

[78] Ms Benaia wishes to give evidence of her experience of a religious instruction session led by a Christian organisation at a school camp and her experience as a parent of a child at a school where opting out of religious instruction was required before a change to opting into religious instruction was made.

[79] The defendant’s challenge to the whole of Ms Benaia’s brief of evidence begins with the submission that what allegedly happened at a school camp is irrelevant because school camps are not subject to the Acts. The rest of the brief, it is submitted, contains nothing which would assist the Court to determine the issues in the case.

[80] Ms Whiteford submits the evidence about the school camp is relevant contextual evidence because it relates to detriment caused when State schools associate themselves with activities having a Christian character. The social effect of school sponsored Christian events is imported back into the schools.

[81] Ms Whiteford submits the parts of the brief which deal with Ms Benaia’s experience of religious instruction in the school in relation to her child is a relevant example of how religious instruction can work in a school.

[82] Consistent with my decisions on the admissibility of the briefs of evidence of Ms Dyson and Ms Ehrhardt, I rule that Ms Benaia may give the evidence contained in her brief of evidence.

Jeffrey McClintock

[83] Mr McClintock is a software developer who is a parent of two school age children. He wishes to give evidence of his experience with religious instruction in schools. The second intervenor challenges some of his proposed evidence.

[84] The second intervenor’s first objection is to paragraph 41 of Mr McClintock’s brief:

My partner Lisa told me she observed a group of boys taunting Violet, calling her a “baby”. Violet explained it was because during religious instruction she was sent to the “baby room” ([the teacher’s] new entrant class). The school later placed Violet in the School’s “Warrior Kids” anti-bullying programme.

[85] The objection, as with the paragraphs in REH’s evidence, is that this description relates to the application of the religious instruction programme in a particular school on a particular instance and has no bearing on the key questions in the case.

[86] Mr McClintock may give the evidence. It is hearsay but I will permit it under s 106 because, in the context of human rights litigation, it provides a specific example of effect resulting from impugned legislation. The weight to be given to it will be for the trial Judge in the light of all of the evidence in the trial.

[87] The next paragraph challenged is paragraph 45:

I felt it was inconsistent for the school to give my daughter an educational activity while Violet’s class was “closed for instruction”. The other children were not expected to complete math sheets while the class was “closed”.

[88] The objection is that this is opinion evidence by somebody who is not an expert and the evidence could not be substantially helpful to the Court.

[89] The first sentence of the paragraph is really submission. The second sentence is evidence of fact. The submission is one which could be made to the trial Judge by counsel relating to an example of how the legislation was applied in a particular school. There is no unfair prejudice. I am not going to artificially limit Mr McClintock’s evidence. He may give the evidence in paragraph 45.
[90] The final paragraphs challenged are 75 – 76. The ground of objection is that the paragraphs relate to the application of the religious instruction programme in a particular school on a particular instance and have no relevance.

[91] The paragraphs address a newsletter publishing results of a survey of parents in relation to a religious instruction programme. It is relevant contextual evidence and evidence of a particular instance which might assist the trial Judge to gain an overall understanding of how the impugned legislation functions in practice. Mr McClintock may give the evidence.

Hashim Ali

[92] Mr Ali is a secondary school teacher from a Muslim background but who does not follow the Muslim religion. Mr Ali wishes to give evidence of his experiences at a named secondary school of religious presentation or observance. The second intervenor has an objection.

[93] The second intervenor submits that paragraphs 5 – 8 of the brief are irrelevant because they relate to the application of the religious instruction programme in a particular school on a particular instance which is irrelevant to the issues in the trial.

[94] The paragraphs in question relate to the effect on pupils of a religious presentation given to year 9 pupils which included giving a bible to each of them.

[95] For the reasons I gave in relation to the challenged evidence of Mr McClintock, I admit the evidence.

Decision

[96] I summarise my decisions as follows:

(a) Ms Jacob may give her evidence except for the evidence contained in paragraphs 51 and 101.

(b) Mr Hines may give his evidence except for the evidence contained in paragraphs 50 and 51.
(c) REH may give her evidence as briefed.

(d) Ms Dyson may give her evidence as briefed.

(e) Ms Ehrhardt may give her evidence as briefed.

(f) Ms Benaia may give her evidence as briefed.

(g) Mr McClintock may give his evidence as briefed.

(h) Mr Ali may give his evidence as briefed.

Costs

[97] I consider that costs should be determined overall at the conclusion of the proceeding. Accordingly, I reserve costs in relation to this judgment.








Brewer J

Solicitors:

Davenports City Law, Auckland Crown Law, Wellington

Human Rights Commission, Auckland Gaze Burt, Auckland