Balancing rights with religious freedom

29 September 2011


There was one PhD graduate among the Auckland Law School graduates at Spring Graduation. Dr David Griffiths wrote a thesis on the meaning of section 15 of the New Zealand Bill of Rights Act 1990 which guarantees everyone the right to practise their religious beliefs both in private and in public.

David graduated with an LLB from Victoria University in 1990 and left New Zealand shortly afterwards to travel. He spent many years in Japan where he taught English, before returning to do an LLM at Auckland on international human rights law.

David was then encouraged to undertake a PhD by the late Professor Mike Taggart. David’s main intention was to build on his teaching experience abroad and eventually to become a legal academic at a New Zealand university.

David explains that section 15 has received little attention in the New Zealand courts but this is likely to change as the country becomes more religiously diverse. His thesis explores what section 15 should mean when individual religionists ask courts for exemptions from laws that burden their religious practices.

He argues for the adoption in this country of the current doctrine of the US Supreme Court in such cases. In order to make this argument, says David, it was “necessary for me to conduct a wide-ranging investigation into New Zealand historical and legal practices to see whether the American solution to the issue was appropriate in this country. I concluded that the US doctrine, even though it diverges from practice in other countries, provided a good ‘fit’ with this country’s legal culture.”

Half the thesis examines historical and theoretical issues. The second half looks at individual cases, some real and some hypothetical. For example, one chapter concerns the request by two Afghani Muslim women in 2004 to testify for the prosecution at a judge-alone criminal trial while wearing the burqa, a veil that covers the face.

The defence complained that this would hamper effective cross-examination and would contravene a general “secular” principle in New Zealand. The judge eventually required the women to unveil but allowed them to testify behind a screen where only the judge and counsel could view their faces. David argues that this decision struck a good balance between the fair trial rights of the accused and the rights of the women within the context of New Zealand’s unique secular traditions.

David acknowledges that his thesis received excellent support from academic and administrative staff alike at the university. “I am immensely grateful to my supervisor Professor Paul Rishworth, who is regarded as the foremost expert on the New Zealand Bill of Rights and especially religious freedom issues”.

He also thanks the Graduate Centre for its enthusiastic practical support during his studies. “I am especially grateful to the former Dean of Graduate Studies, Gregor Coster, who consented to a considerable extension of the word limit beyond the usual 100, 000 for PhD theses. He recognised at the half-way stage of my research that it was an important project and one deserving of a thorough treatment”, says David.

David now holds a Postdoctoral Fellowship at AUT University for the remainder of 2011, where he continues to write and publish on the subject of religious freedom.

His full thesis is at