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

HINES v THE ATTORNEY-GENERAL OF NEW ZEALAND [2020] NZHC 983 [13 May 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-1809[2020] NZHC 983UNDER Human Rights Act 1993BETWEEN DAVID HINESFirst PlaintiffTANYA JACOBSecond PlaintiffAND THE ATTORNEY-GENERAL OFNEW ZEALANDDefendantAND THE HUMAN RIGHTS COMMISSIONFirst IntervenorTHE CHURCHES EDUCATIONCOMMISSION TRUST BOARDSecond IntervenorHearing: 19 March 2020Counsel: G E Whiteford for PlaintiffsP T Rishworth QC and N Fong for DefendantF M Joychild QC and J S Hancock for First IntervenorN P Tetzlaff for Second IntervenorJudgment: 13 May 2020JUDGMENT OF BREWER JThis judgment was delivered by me on 13 May 2020 at 3:30 pmpursuant to Rule 11.5 High Court Rules.Registrar/Deputy RegistrarIntroduction[1] The plaintiffs oppose religious instruction and religious observances in Stateschools. The Education Act 1964 and the Education Act 1989 (the Acts) permitreligious instruction and religious observances in State schools under certain statedconditions. The plaintiffs seek a declaration under s 92J of the Human Rights Act1993 that relevant provisions of the Acts create an inconsistency with the right tofreedom from discrimination as affirmed by s 19 of the New Zealand Bill of RightsAct 1990.1[2] The plaintiffs have provided the defendant and the intervenors with their draftbriefs of evidence. The defendant challenges the admissibility of parts of thatevidence. The Churches Education Commission Trust Board supports the defendant'schallenge 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 casethe defendant needs to know the scope of the evidence to which it must respond. Thisjudgment decides the admissibility of the contested evidence.Background[4] The plaintiffs originally brought these proceedings in the Human RightsReview Tribunal.2[5] On 18 July 2018, Churchman J made an order granting leave for theproceedings to be removed to the High Court.3 On 20 July 2018, the Human RightsReview Tribunal made an order accordingly.41 The prayer for relief adds to the references to the sections in the Acts: "the omission of legislativeprovisions protecting secular education in State secondary schools and allowing students ofminority faiths or ethical beliefs not to have to participate". For the purposes of this judgment myfocus 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 theHuman Rights Review Tribunal,5 the Court "may exercise any power that the Tribunalcould have exercised in, or in relation to, the proceedings".6 Section 106 of theHuman Rights Act 1993 deals with evidential matters in proceedings before theTribunal. Relevantly, it provides:(1) The Tribunal may –(d) receive as evidence any statement, document,information, or matter that may, in its opinion, assistto deal effectively with the matter before it, whetheror not it would be admissible in a court of law(4) Subject to subsections (1) to (3) the Evidence Act 2006 shallapply to the Tribunal in the same manner as if the Tribunalwere a court within the meaning of that Act.[7] The defendant sets out applicable principles drawn from two previousdecisions of this Court.7 I agree with the defendant's summary and I reproduce it:820.1 While s 106 confers a "very broad discretion" on the Tribunal inrespect of evidential matters, the discretion must be exercisedjudicially.9 It is antithetical to fairness and natural justice to admitevidence into Court that is irrelevant or insufficiently probative.1020.2 The Evidence Act 2006 is the "primary mechanism for regulating theadmissibility of evidence before the Tribunal", subject to theexceptions under s 106(1) – (3).1120.3 The Tribunal must first assess whether the evidence is admissibleunder the Evidence Act.12 Among other things, this involves anassessment of relevance, reliability of the statement in question (ifhearsay) and whether the evidence should be excluded under s 8 ofthe Evidence Act.135 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 HealthPractitioners 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 itmay assist the Tribunal to deal effectively with the matters before it.14This does not allow the Tribunal to admit inadmissible evidence as amatter of course.15 There must be "good reasons".16 Those reasonsmust be fact specific and more than "merely a reference to generalprinciples, the unique nature of the Tribunal or the purpose of theAct".17The scope of the admissibility challenge[8] Counsel for the defendant filed a memorandum dated 17 March 2020 whichhelpfully identifies the evidence challenged. There are six witnesses involved. Forthree of the witnesses, including the two plaintiffs, only parts of their briefs of evidenceare contested. For a further three witnesses, their entire brief is contested.[9] The second intervenor makes its own challenges, including to portions of theevidence 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 theActs 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 willopt out). Further, the plaintiffs claim that the statutory structure leads to materialdisadvantage for those who opt out. The first argument is largely a matter of statutoryinterpretation. The second argument requires evidence to be called. It is evidence inthis area which is challenged.[12] The defendant argues that the evidence challenged is in one or more of thecategories of irrelevant, hearsay, or unfairly prejudicial.[13] The plaintiffs respond that the Court should relax the Evidence Act 2006admissibility rules given the nature of the proceeding. Further, the plaintiffs submit14 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 isbrought.The evidence challenged[14] My approach to challenged evidence is to assess it in the round. I will notexamine each sentence for admissibility. A number of briefs are submitted to beinadmissible in their entirety. I will assess them in their entirety. Judges are very usedto dealing with evidence that contains portions which are either strictly speakinginadmissible or which are of tenuous relevance to the issues in the trial. A pragmaticapproach is called for.Tanya Jacob[15] Ms Jacob is a plaintiff. She is the South Island representative of the SecularEducation Network (SEN). Ms Jacob proposes to give evidence both in her capacityas a SEN representative and as a parent of children who were opted out of religiousinstruction classes at their primary school.[16] The defendant challenges first the evidence of Ms Jacob in paragraphs 49 – 51of her brief.[17] In these paragraphs Ms Jacob gives evidence of complaints by parents madedirectly to her or "shared" on the SEN website. In paragraphs 49 and 50 the evidenceis general:49. Many parents also talk to me privately about the situations at theirchildren's schools, having made contact through Facebook or word ofmouth. Features of cases brought to me by parents privately andshared on the network that are extremely common, even ubiquitousare:• opt out children being put back in RI• misleading information to parents de-emphasising the Christianreligion 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 thenetwork that I would describe as common are:• parents not being told that RI was present in the school and onlyfinding out by chance, such as through dinner conversation withchildren• 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 withoutidentifying the schools or the complainants. I will quote an example:There are cases of particular note, for several reasons, including because ofparticularly vulnerable circumstances, the degree of disadvantage and harmcaused to the child or parent, or because of the parents' particular role in thecommunity, for example a business person in a small community. I outlineseveral below:(a) At a small rural school, school children were stood up in front of theclass and told by their teacher that their parents had made "ridiculousexcuses" for opting them out (when in fact they had given none), andwere questioned about it publicly. They were then made to go out tothe corridor to be questioned by the teacher and were told that if thereligious instruction volunteer "lost her job" it would be the children'sfault. The parents never raised this with the school for fear theteacher's bullying of the children would worsen. The children cameto hate RI day because of the teacher's mood on those days and beinggiven worksheets during opt out and being told to be quiet – in starkcontrast to how the RI children spent their time.[19] The defendant submits the "examples of discrimination" given by Ms Jacobare hearsay and prejudicial because the defendant cannot meaningfully test theevidence. None of the schools or the individuals concerned are identified.[20] The plaintiffs argue that Ms Jacob is an expert in this field through herinvolvement with SEN and her experience as a parent of children subjected to thereligious instruction and religious observance provisions of the Acts. Thedocumentary material referred to in her brief establishes that she maintains detailedand careful records and is a skilled researcher. Accordingly, the plaintiffs submit thesecircumstances provide reasonable assurance that the statements are reliable and shouldbe admitted. It would be for the trial Judge to consider the evidence and drawconclusions as to weight.[21] In my view, the experiences of parents and pupils who have seen or beenaffected by religious instruction or religious observances at State schools is relevantto the claim of material disadvantage for those who opt out.18 It is relevant also toestablish whether material disadvantage is the exception, the rule, or somewhere inbetween.[22] The plaintiffs are not in a position to call hundreds of witnesses to giveevidence of what happens in hundreds of schools.19 Or even dozens of witnesses inan attempt to establish a pattern of conduct across the country. That would not bedesirable in any event because it would turn a case which is essentially about humanrights principles relating to freedom of religion and anti-discrimination into a giantbattle of facts.[23] Hearsay statements are those made by persons other than a witness offered toprove the truth of their contents.20 Therefore, to the extent the evidence is of the factof complaints and the content of complaints it is not hearsay. It is evidence relevantto, and probative of, the plaintiffs' contention there is material disadvantage.[24] To the extent the evidence is put forward for the purpose of establishing thecomplaints are true then it is hearsay. It is not hearsay which, on the very limitedmaterial before me as to its provenance, would provide reasonable assurance that thecomplaints are reliable (a prerequisite for admissibility under s 18 of the EvidenceAct).[25] I have decided to admit the statements in paragraphs 49 and 50 of Ms Jacob'sbrief under the discretion conferred by s 106 of the Human Rights Act 1993. The trialJudge, having regard to all the evidence called in the case, may feel able to putevidential weight on the contents of the complaints. Or not. It is evidence of a generalnature which might find a place in the overall matrix of evidence. The context of theproceeding 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. Theevidence is general and does not call for detailed rebuttal. Cross-examination canreadily establish factors going to weight such as the number of complaints, the periodduring which the complaints were received, and so on. Discovery from the plaintiffswill have to include the primary records Ms Jacob relies on to put forward herevidence.[27] Conversely, I rule paragraph 51 inadmissible.[28] The examples Ms Jacob gives are clearly hearsay being put forward asevidence of the truth of the statements. The mere fact complaints were made cannotsatisfy the Evidence Act prerequisite that the circumstances relating to the statementstherein provide reasonable assurance they are reliable.[29] I decline to admit them under s 106. They are unfairly prejudicial. Takentogether they go directly to the plaintiffs' case but the defendant has no chance to rebutthem. The complainants are not named, the schools are not identified, the periods towhich the complaints relate are unknown. It would be unfair to the defendant if thetrial Judge were to give the evidence any weight.[30] Second, the defendant challenges paragraphs 94 – 101 of the brief whereMs 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. Inrelation to Christian youth workers the opinion is:97. It is clearly about putting Christian people in a position to have theability 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 ensurechaplains stay away from topic areas for which they have no training.Faith based solutions offered in place of appropriate evidence basedsupport to vulnerable children who may be depressed, or dealing withan issue such as sexual identity, could inflict serious harm. For thisreason I see chaplains as particularly inappropriate in schools. LGBT+students and those dealing with depression, among other things, maybe subject to harmful attitudes and/or denied appropriate care eitherdirectly or indirectly as a result of the chaplain's presence andinfluence at the school. The chaplain's service, like RI, can be readilysought in the community for those families that want Christian-basedpastoral care.[33] The plaintiffs submit this is admissible evidence of the increasingencroachment of Christianity into schools and the endorsement of this by schools. Theevidence is contextual in nature because religious instruction does not occur in avacuum. The plaintiffs are prepared to make some minor amendments.[34] I accept the plaintiffs' point that evidence of the presence of Christian youthworkers and chaplains at schools, and evidence of their purpose in being at schools, isrelevant contextual evidence. It might help the trial Judge evaluate evidence, if it isgiven, 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 whichtends to prove the overall levels of religious activity within the current State schoolssystem. There is no need to go beyond the Evidence Act.[35] On the other hand, the evidence cannot go beyond establishing context. Itcannot be used for an inadmissible purpose, such as providing a platform for the airingof Ms Jacob's personal views on religion.[36] Neither can it be used as the basis for the giving of opinions which Ms Jacobhas 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 theevidence in paragraphs 94 to 100. It should not be onerous to call evidence of anotherperspective (if there is one) of having Christian youth workers and chaplains in Stateschools.21 Evidence Act 2006, s 23.[39] Finally, objection is taken to paragraphs 140 and 141 of the brief which dealwith religious discrimination by high school teachers. The defendant's submission isthat this evidence is hearsay and there is no reason why the complainants should notgive evidence in person. It is submitted the defendant would be materially prejudicedif the evidence were given because it could not be tested or rebutted.[40] The plaintiffs submit the hearsay elements are insufficient to exclude theevidence. Ms Whiteford pointed out that the paragraphs are based on Ms Jacob'sreview of documents provided by the defendant in discovery. Ms Whiteford submitsthe 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 secondaryschool] centred around enforced participation of students and staff inreligious observances in assemblies. The tone of that enforcement isalleged to be highly offensive. One of the complaints notes that thishas resulted in racial as well as religious discrimination with regardsto students of Indian descent.141. Just looking in August 2006, there were two emails from parents ofstate secondary school children who complained that their child hadbeen included in religious instruction and observances without theoption given to not attend. One of these children was also given areligious text to take home.[42] I rule these paragraphs are admissible not as hearsay statements but as evidenceof the fact the complaints were made and about what. That is evidence which the trialJudge can take into account when considering the overall effect on pupils of religiousinstruction and religious observances in schools. It is evidence of context.[43] The paragraphs are not admissible as evidence of the truth of the statementstherein. They do not meet the Evidence Act tests for admissibility as hearsay evidenceand I decline to use s 106 to admit them. It would be different if the complaints hadbeen investigated by an impartial tribunal and upheld.David Hines[44] Mr Hines is a founding member of SEN. He is a council member of theNew Zealand Association of Rationalists and Humanists. Mr Hines was appointed toliaise 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 andis inadmissible because it has no relevance to any issue in the trial and is incapable oftending to prove anything at all:50. Several of our witnesses are giving evidence of schools treatingstudents unfairly. This unfairness includes bullying of parents whocomplain.[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 ofsix specific examples of "parents who are afraid to complain because of peer pressureand threats to their employment". I quote an example:A contractor in a rural area where the parent withdrew an offer to giveevidence fearing her business would be boycotted by Christians.[49] Ms Whiteford submits the examples in paragraph 51 meet the admissibility testfor hearsay evidence in the Evidence Act:24. The extensive research and advocacy role Mr Hines has played inSEN for eight years, his profile in the organisation, his academic andjournalistic background and his attention to detail, evident throughouthis brief, are relevant circumstances that provide reasonable assurancethat the statement is reliable. Mr Hines is in effect an expert on thetopic of RI for the purposes of Part 1A litigation. Given this, and if thehearsay statements are admitted, it is then up to the Court to considerthe 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 asevidence of the truth of the statements. Whether or not Mr Hines is an expert in thisarea does not matter. His expertise cannot give reasonable assurance that thecomplaints made are reliable as to their contents.22[52] I decline to admit them under s 106. That would be unfairly prejudicial to thedefendant. As I said in relation to Ms Jacob's proposed evidence, the complainantsare not named, the schools are not identified, the periods to which the complaints relateare unknown. The trial Judge could not, fairly, give the contents of the complaintsevidential weight.[53] The fact that parents make complaints, and the general areas of complaint, arerelevant and can be taken into account by the trial Judge. Mr Hines might properlyinclude in his evidence a statement along the lines:In the period X to Y, SEN received Z number of complaints from W numberof parents about religious instruction in schools. The complaints can begrouped 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 shediscusses the presence of Christian youth workers and chaplains at school. Mr Hines'sparagraphs go into some detail about the engagement with State schools of Christianyouth workers other than for religious instruction.[55] The defendant submits this evidence is irrelevant. I disagree. As I held inrelation to Ms Jacob's paragraphs, the presence and purpose of Christian youthworkers 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 namesof the schools will be suppressed from the public record.[58] Any such suppression will require application and adjudication. For thepurposes of this judgment I choose not to name the witness so as to preserve thesituation.[59] REH is a mother of four young children, two of whom attend school. She isfrom a family "that has been non-Christian for at least 4 generations". REH wants togive evidence of her views of religious instruction in schools, her experience ofreligious instruction as a young child, the experience of one of her childrenencountering religious instruction and her experience in challenging religiousinstruction at her child's school.[60] The defendant objects to the evidence in paragraphs 8 – 17 of REH's brief. Inthese paragraphs, REH gives evidence of her experience of religious instruction in thelate 1980s and early 1990s.[61] The defendant accepts that while the evidence could be relevant, it is so datedthat its evidential value is low and is outweighed by unfair prejudice to the defendantif it is admitted. The unfair prejudice, it is submitted, arises from an inability toresearch and rebut the allegations.[62] I rule that REH may give the evidence in paragraphs 8 – 17. I do so because ithas some relevance to the issues in the trial. It will probably have little evidentialweight 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 defendantis also low and insufficient to warrant exclusion.[63] The second intervenor challenges further portions of REH's evidence. Thefirst challenge is to paragraphs 22 – 24.[64] Paragraphs 22 – 24 discuss a survey of parents' opinions on religiousinstruction 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 toreligious instruction continuing. REH says the school board did not stop religiousinstruction notwithstanding the results of the survey.[65] The second intervenor submits these paragraphs are irrelevant because theyrelate to the application of the religious instruction programme in a particular schoolon a particular instance.[66] In my view the evidence of specific experiences with the way named schoolshave dealt with issues relating to religious instruction is relevant contextual evidenceand relevant to the pleaded claim of material disadvantage. The weight to be given toit will be for the trial Judge in the light of all of the evidence in the trial. I rule thatREH may give the evidence in paragraphs 22 – 24 of her brief.[67] The second objection to REH's evidence relates to paragraphs 29 – 34. Thesecond intervenor submits the paragraphs are irrelevant for the same reasons itsubmitted 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 samereasons that I admitted paragraphs 22 – 24, I admit paragraphs 29 – 34. I acknowledgethat some of the evidence is hearsay (the account by REH's child). However, giventhe context I find it sufficiently reliable to admit it. I do not think the evidence of suchmoment 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 giveevidence of her family's experience of education in Europe, their experience ofNew Zealand education and the impact of religious instruction, and her views on theplace 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 containsnothing 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 notdirectly relate to religious instruction in a school, her evidence "illustrates the impactof schools allowing Christian programmes to encroach into their activities. It providesfurther 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 strictEvidence Act terms it is of peripheral relevance to the issues as pleaded. However, itdoes contain relevant contextual material and gives a specific example of the moregeneral material I ruled admissible in the briefs of Ms Jacob and Mr Hines. I acceptthat Ms Dyson's personal views are not those of an expert. However, I am mindful ofthe nature and purpose of this litigation. I consider the trial Judge should be able tohear 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. Shedescribes herself as a lesbian mother and a Buddhist. Ms Ehrhardt wishes to giveevidence of what it feels like to be a child lesbian at a State school who has to dealwith bible in schools, the impact on her child of being at a State school where "bibleand burgers" was held, and how her Buddhist beliefs clash with permitting religiousinstruction in State schools.[74] The defendant submits Ms Ehrhardt should not be permitted to give herevidence as briefed. The submission is Ms Ehrhardt's brief consists largely ofinadmissible 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 litigationMs Ehrhardt's evidence should be put before the trial Judge as an example of howreligious instruction can impact a person with Ms Ehrhardt's beliefs andcharacteristics.[76] In my view, Ms Ehrhardt's situation is similar to Ms Dyson's situation. Iaccept that much of the brief of evidence is of only peripheral relevance to the issuesas pleaded. Some of it (particularly paragraphs 6 and 7) contains opinion evidencewhich might not be admissible under the Evidence Act. Nevertheless, for the reasonsI gave for admitting Ms Dyson's evidence, I rule Ms Ehrhardt may give her evidenceas 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 instructionsession led by a Christian organisation at a school camp and her experience as a parentof a child at a school where opting out of religious instruction was required before achange to opting into religious instruction was made.[79] The defendant's challenge to the whole of Ms Benaia's brief of evidencebegins with the submission that what allegedly happened at a school camp is irrelevantbecause 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 relevantcontextual evidence because it relates to detriment caused when State schoolsassociate themselves with activities having a Christian character. The social effect ofschool sponsored Christian events is imported back into the schools.[81] Ms Whiteford submits the parts of the brief which deal with Ms Benaia'sexperience of religious instruction in the school in relation to her child is a relevantexample of how religious instruction can work in a school.[82] Consistent with my decisions on the admissibility of the briefs of evidence ofMs Dyson and Ms Ehrhardt, I rule that Ms Benaia may give the evidence contained inher brief of evidence.Jeffrey McClintock[83] Mr McClintock is a software developer who is a parent of two school agechildren. He wishes to give evidence of his experience with religious instruction inschools. The second intervenor challenges some of his proposed evidence.[84] The second intervenor's first objection is to paragraph 41 of Mr McClintock'sbrief:My partner Lisa told me she observed a group of boys taunting Violet, callingher a "baby". Violet explained it was because during religious instruction shewas sent to the "baby room" ([the teacher's] new entrant class). The schoollater placed Violet in the School's "Warrior Kids" anti-bullying programme.[85] The objection, as with the paragraphs in REH's evidence, is that thisdescription relates to the application of the religious instruction programme in aparticular school on a particular instance and has no bearing on the key questions inthe case.[86] Mr McClintock may give the evidence. It is hearsay but I will permit it unders 106 because, in the context of human rights litigation, it provides a specific exampleof effect resulting from impugned legislation. The weight to be given to it will be forthe 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 educationalactivity while Violet's class was "closed for instruction". The other childrenwere 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 expertand the evidence could not be substantially helpful to the Court.[89] The first sentence of the paragraph is really submission. The second sentenceis evidence of fact. The submission is one which could be made to the trial Judge bycounsel relating to an example of how the legislation was applied in a particularschool. There is no unfair prejudice. I am not going to artificially limitMr McClintock's evidence. He may give the evidence in paragraph 45.[90] The final paragraphs challenged are 75 – 76. The ground of objection is thatthe paragraphs relate to the application of the religious instruction programme in aparticular school on a particular instance and have no relevance.[91] The paragraphs address a newsletter publishing results of a survey of parentsin relation to a religious instruction programme. It is relevant contextual evidence andevidence of a particular instance which might assist the trial Judge to gain an overallunderstanding of how the impugned legislation functions in practice. Mr McClintockmay give the evidence.Hashim Ali[92] Mr Ali is a secondary school teacher from a Muslim background but who doesnot follow the Muslim religion. Mr Ali wishes to give evidence of his experiences ata named secondary school of religious presentation or observance. The secondintervenor has an objection.[93] The second intervenor submits that paragraphs 5 – 8 of the brief are irrelevantbecause they relate to the application of the religious instruction programme in aparticular 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 religiouspresentation 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 inparagraphs 51 and 101.(b) Mr Hines may give his evidence except for the evidence contained inparagraphs 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 theproceeding. Accordingly, I reserve costs in relation to this judgment.________________________________Brewer JSolicitors:Davenports City Law, AucklandCrown Law, WellingtonHuman Rights Commission, AucklandGaze Burt, Auckland