McClintock v Attorney-General - [2016] NZHC 592

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000279 [2016] NZHC 592

UNDER
The New Zealand Bill of Rights Act 1990,

the Judicature Act 1908, Part 30 of the
High Court Rules

BETWEEN

JEFF MCCLINTOCK Applicant

AND

THE ATTORNEY-GENERAL First Respondent

RED BEACH BOARD OF TRUSTEES Second Respondent

CHURCHES EDUCATION COMMISSION

Interested non-party

Hearing: 6 April 2016

Appearances:

R K Francois for Applicant
P T Rishworth QC for First Respondent
A A Ayton for Second Respondent
No appearance for Churches Education Commission

J Hancock for Human Rights Commission - intended interested non-party

G Little and L Wong for Mr Hines and Ms Jacob - intended interested non-parties

Judgment:

6 April 2016

ORAL JUDGMENT OF WYLIE J

Solicitors/counsel:
R K Francois, Auckland
P T Rishworth QC, Wellington
G F Little, Auckland
L L Wong, Auckland
Heaney & Partners, Auckland
Gaze Burt, Auckland
Copy to:
Human Rights Commission

MCCLINTOCK v THE ATTORNEY-GENERAL & ANOR [2016] NZHC 592 [6 April 2016]

Introduction

[1] Mr McClintock has filed an application for judicial review. He alleges that his daughter was unfairly treated when she opted out of religious instruction classes offered at Red Beach School, a state primary school on the Hibiscus Coast, north of Auckland. Mr McClintock alleges breach of s 75 of the Education Act 1989 by the Board of Trustees of Red Beach School. He also alleges that the trustees have breached s 79 of the Education Act 1964. He raises the New Zealand Bill of Rights Act 1990. He says that there has been discrimination and breaches of claimed rights to manifestation of religion and belief, freedom of thought, conscience and religion, and freedom of expression. He also alleges breach of the Care of Children Act 2004. Mr McClintock seeks declarations that the breaches have occurred and that s 78 of the Education Act is inconsistent with ss 13, 14, 15, 19 and 28 of the New Zealand Bill of Rights Act and with s 16 of the Care of Children Act. He also claims compensation under the New Zealand Bill of Rights Act.

[2] Mr McClintock named the Attorney-General and the Board of Trustees of Red Beach School as the respondents to his proceedings, and all of the causes of action raised by him are founded on the alleged conduct of the Board of Trustees of Red Beach School in dealing with his daughter.

[3] On 9 June 2015, Thomas J allowed the Churches in Education Commission (the “CEC”), to be joined as an interested non-party.1 It sought to be heard on the ground that it is a leader in the field of the provision of Christian religious education programmes throughout New Zealand. It argued that it would be directly affected should the declarations sought by Mr McClintock be made. Thomas J permitted it to be joined subject to various conditions. Inter alia she limited the scope of the evidence it is allowed to adduce.

[4] The substantive proceedings are set down for hearing over four days as from

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McClintock v Attorney-General

Details

AGLC: McClintock v Attorney-General [2016] NZHC 592
Case: [2016] NZHC 592
Decision Date: 6 April 2016

CaseChat Overview and Summary

The High Court heard an application by Mr McClintock against the Attorney-General and the Board of Trustees of Red Beach School, alleging discrimination against his daughter when she opted out of religious instruction classes at Red Beach School. Mr McClintock sought declarations that sections of the Education Act were inconsistent with the New Zealand Bill of Rights Act 1990 and the Care of Children Act 2004. Mr McClintock also sought compensation under the New Zealand Bill of Rights Act. The Churches in Education Commission had been joined as an interested non-party. Mr Hines and Ms Jacob, on behalf of the Secular Education Network, sought to be joined as parties or interveners to provide evidence of the widespread use of religious instruction in state primary and secondary schools, the alleged inadequacy of redress available through the Human Rights Commission or the Ministry of Education, and the alleged discrimination against parents and children of minority religions or who are of non-religious conviction. The Human Rights Commission also sought to be joined as an interested non-party. The Court considered whether Mr Hines and Ms Jacob should be joined as additional interested non-parties and whether they should be permitted to file further evidence. The Court found that neither Mr Hines nor Ms Jacob’s legal rights or liabilities in relation to the subject matter of the proceeding could be directly affected by it. While Mr Hines and Ms Jacob’s general interest – which is essentially in attaining the Secular Education Network’s goals – may be engaged by the proceeding, they can rely on Mr McClintock to protect that interest. Allowing Mr Hines and Ms Jacob to file further evidence now would inevitably result in an application for an adjournment, which the Court would have difficulty in resisting. The Court also found that the Human Rights Commission could be joined as an additional interested non-party. The Court imposed conditions on their joinder, including that they are not to produce any further evidence in the proceeding and are not entitled to cross-examine any witnesses. The Court also reserved costs.

Orders