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Ōrewa Community Church has joined 14 others in taking the government to court over restrictions imposed under the Covid-19 traffic light system.
They claim their right to practise their religion, including gathering to worship, and being open to all, are unfairly impacted by the Covid-19 traffic light restrictions.
Madeleine Flannagan of Hibiscus Coast Legal Chambers is one of two barristers representing the 15 applicants (on behalf of 110 churches and two mosques).
Flannagan describes the case, Ōrewa Community Church and Others v Minister for Covid-19 Response and Director General of Health, as constitutionally important.
Key to the applicants’ case is that Section 15 of the NZ Bill of Rights Act, 1990 states that every person has the right to manifest their religion or belief in worship, observance, practice or teaching, either individually or in community with others, in public or private.
For Ōrewa Community Church, pastor Dave Bradley says, it’s simply about fairness.
Bradley says government is not respecting that religious practice is a fundamental right, along with things like healthcare, food, shelter and education.
“They put religion in the same basket with entertainment – but we are teaching and for our congregation going to church can be as important as supermarket shopping,” he says.
His church elders decided to stand up and be counted with the other applicants, Bradley says, because their congregation of more than 200 people will be affected, even under the Green traffic lights setting.
The church has chosen not to operate with vaccine passes, so the number limits for gatherings are tight – just 25 at the Red setting. Currently they are holding two small groups for church on Sundays and a few very small ones in private homes during the week.
Pre-recorded online services are also an option, and Bradley says although these are available to all, “they are not church”.
“Online is better than nothing, but church is the people, so unless they gather, it’s not church,” he says.
“We could have 100 in church with vaccine passports, but we will suffer the tighter limit because I don’t want to stand at the door and deny entry,” Bradley says. “Would Jesus have asked for a vaccine pass?”
He says views among the congregation about this decision is mixed.
“We have the same challenges as other churches, and the nation as a whole – differences of opinion. Some are frustrated that 100 of us can’t gather because we have chosen not to use the passports. Whereas others agree wholeheartedly.”
He says the church’s leadership team believes in following the rules that government sets – and will continue to do so.
“But we are questioning those rules because they limit our ability to exercise our faith.”
Flannagan says leaders in the Christian community approached her towards the end of last year, saying they were impacted by the traffic light rules and asking what could be done.
“We didn’t know if anyone would sign on,” she says. “Churches in NZ don’t sue the government – it just doesn’t happen.”
However, 15 applicants did, and they are asking the court to determine whether or not the traffic light system is unlawful under the Bill of Rights.
“Not one of the applicants underestimates the health situation, or wants to spread Covid-19. They would accept the option of seeing a vaccination pass, or a rapid antigen test taken that morning – or a test taken right then and there,” Flannagan says.
She says the traffic light system was the game changer that resulted in the churches and mosques taking this action.
“Everyone was in the same boat under the Alert Levels, and there was a known timeframe but the traffic lights are about how we live with Covid-19 long term, with no end date in sight. It’s also possible that the rules may tighten again in future, if there’s another outbreak or variant, so this case sets an important precedent.”
The recent decision of Justice Cooke that removed the vaccine mandate for Police and Defence Force workers is encouraging for the applicants, Flannagan says.
“It shows the court will require government to have good reasons for limiting rights and freedoms, and that it must continually review its policies with the Bill of Rights in mind.”
She says expert advice in support of the applicants’ claim, including from her husband, Ōrewa theologian and teacher, Dr Matthew Flannagan, points to less restrictive policies affecting worship in countries such as the United Kingdom, America, most of Australia, and many countries in Europe, that are still effective at keeping people safe from Covid-19.
On behalf of the defendants, a spokesperson from the Covid-19 Group, Department of the Prime Minister and Cabinet, says they are unable to comment on the claim while the matter is before the courts.
However, the spokesperson says that like all gatherings (such as weddings, funerals and tangihanga), faith-based services carry with them the risk of transmission of Covid-19 while the virus is in the community.
“Capacity limits provide an important layer of protection when people gather, reducing the likelihood of transmission of the virus,” the spokesperson says. “Being vaccinated reduces the chance of more serious infection and the risk of transmitting it to others, and therefore up to 100 people can gather where My Vaccine Pass requirements are used. Where they are not used, the limit is 25, in recognition of the heightened risk that comes with unvaccinated people, or people of mixed vaccination status, gathering in one place.”
It is anticipated that the case will be heard in the Wellington High Court in June.
