Appendix 2 – Summary of Paul Rishworth Opinion

<typohead type="3">1. Employment </typohead>

1.1 Clergy in the Presbyterian Church of Aotearoa New Zealand are, in normal circumstances, not employees within the meaning of the term in the Human Rights Act.

1.2 Parish workers and the like may well be employees. The exemption in s28(2)(b)(i) operates so that if they are employed as clergy, teachers or pastors, or officials, then there may be different treatment (and thus discrimination) based upon religious belief. In practice this will require the nature of the belief to be articulated by the employing institution, thus leading to the question "what is the Church´s position on the issue of homosexual employees?" And so one is back to the principal questions in this opinion, and upon which the Judicial Commission ruled. But, importantly, it may well be that the individual employing entity – a Session or Parish Council perhaps – can advance its own set of beliefs on the issue. This leads to the question whether it is entitled to have its own set of beliefs, or whether its beliefs must reflect those of the national body. I see no reason why the former does not apply. That is, it is possible for a local parish to hire on the basis of religious belief taking into account also religious belief as to the legitimacy of homosexual acts.

1.3 For positions such as secretaries and organists there is a further area of doubt since s28(2)(b)(i) speaks only of positions that are, or are substantially like, those of pastor, priest, teacher and official "or otherwise involve the propagation of that belief". I have not dealt with this point in the body of my opinion so far, but I am of the view that the position of secretary and organist, and no doubt some other positions as well, could well fall within that last phrase given the likely centrality of music and administration to the mission of a Church. It is all part of the expression and propagation of belief. Obviously this is clearer with musicians than it is with secretaries, but even with the latter I believe a basic sympathy with the institution´s mission and beliefs is likely to be held, if the matter were litigated, to be a legitimate occupational requirement of a church employee. It may well be different for cleaners, say.

<typohead type="3">2. Licensing </typohead>

2.1 My conclusion here has been that the Act provides exceptions that enable churches to maintain their distinct beliefs, but that the way these exceptions operate in practice requires a decision by the Church to invoke the exception, and then the articulation of their doctrines, rules, or established customs that manifest their beliefs, so far as relevant to the case in issue. In the current circumstances of the Church on the homosexuality issue, making the initial decision to invoke exceptions in the Act is tantamount to making a decision about the existence of a (negative) rule on the subject of licensing practising homosexual candidates. In the end, of course, whatever the Church decides must be accepted by the Human Rights Commission and the courts. But the immediate question for the Church is to decide exactly what its current position is. Even if it is presently uncertain about that position, the fact is that if a complaint were made to the Human Rights Commission by a disappointed candidate, the Church will have to choose to whether to articulate relevant doctrines, rules, or established customs, whether instead let the matter go undefended, and whether to resolve the complaint by allowing the candidate to progress to licensing.

2.2 All this raises the question what counts as "the Church". The answer, as I see it, is that the Moderator or Council of Assembly could speak for the Church, but only if they judged that they wished to. Their alternative is to put the matter to Assembly for a mandate, or instruction, as to what to say in response to a Human Rights Commission complaint.

2.3 Last year´s Judicial Commission decision certainly rules out the option of saying that there are presently any doctrines or rules against ordaining clergy who are "practising homosexuals". In my view it does not rule out the possibility that there is an established custom to that effect. But even so, if that were the position the Church wished to take, it obviously requires someone who has the authority to speak for the Church to decide that that is its position and to so declare. The Church´s internal rules may permit the Moderator or the Council of Assembly to speak for it, but it is presumably up to such persons to choose whether to do so. On this issue they may well decide that Assembly should be the one to speak.

Paul Rishworth
Faculty of Law
University of Auckland