The Church operates within a legal 'zone of autonomy' that leaves it free to choose its leaders – and therefore whom it will ordain – without interference from the State.

That was the view advanced today to the Human Rights Tribunal by Professor Paul Rishworth, who is an internationally recognised authority on human rights legislation.

Professor Rishworth was delivering the closing defence submissions in the case brought by the Gay and Lesbian Clergy Anti-Discrimination Society against the Bishop of Auckland, Rt Rev Ross Bay.

The plaintiffs are alleging that when Bishop Bay refused Gino Sisneros entry into the diocesan ministry discernment process – by which it selects candidates for the priesthood – he discriminated against him because he is a gay man living in a same-sex relationship.

Gino Sisneros’ lawyer, Mr David Ryken, yesterday argued that the bishop’s refusal breaches Section 38 of the Human Rights Act, which outlaws discrimination against job seekers.

He argued, too, that the bishop couldn’t seek shelter from Section 39.1 of the Act – which creates some exemptions where religion is concerned.

The only exclusions on offer in Section 39.1, Mr Ryken claimed, concern gender – the Roman Catholic Church, for example, wouldn’t be in breach of the Act if it turned down a woman applying to be a priest – or when the person concerned is not a member of the faith concerned.

And because the Anglican Church ordains both men and women, and because Gino Sisneros isan Anglican, he shouldn’t have been refused entry to the discernment process.

But today Professor Rishworth argued that Mr Ryken’s narrow reading of the protections available under Section 39.1 is implausible.

Professor Rishworth claimed that Section 39.1 was designed precisely to preserve the autonomy of religious bodies to select leaders who would manifest their doctrines – and therefore to ordain whom they see fit.

Furthermore, this “clear meaning” of Section 39.1 is consistent with international and domestic human rights law, and with the law of all other countries with which New Zealand traditionally compares itself.

“None of these states,” he claimed, “nor any international tribunal, would interfere in the internal qualification decisions of a religious organisation in a case like the present.”

It's not enough just to be Anglican

Section 38 of the Act makes it illegal for an employer to discriminate against a potential employee on the grounds of disability or sexual orientation, for example.

But that’s immediately followed by Section 39.1, which states, among other things, that “nothing in section 38 shall apply” where a qualification is needed “for the purposes of organised religion”.

Professor Rishworth today argued that the qualification that Mr Sisneros has been seeking – training for the Anglican priesthood – is precisely the type of qualification of which Section 39.1 speaks.

Further, he argued, Mr Ryken’s view of Section 39.1 depends on turning the section on its head to focus on the reasons for refusalof an individual in a particular case, rather than on the nature of the qualification itself, and on a categoryof cases.

Section 39.1 provides, he said, “a zone of autonomy in which the state does not interfere.”

The mere fact that a candidate may be Anglican, and even give intellectual assent to the canons of the Church, isn't sufficient. He or she must live a life that complies with its doctrines.

“It is not enough,” said Professor Rishworth, “for an applicant to simply self-declare as ‘Anglican.’

“The inquiry into what belief is must descend down to the level consonant with the significance of leadership decisions.

“Section 39.1 is not about rank and file membership where a person’s subscription to and practical expression of matters of Anglican doctrine etc are not policed in any way.

“In that sense, the Church is a broad church – but it is a church defined by its canons and beliefs and it is entitled to seek to maintain these as it selects its leaders.

“It would be casual indeed if all S39.1 permitted was a quick check that a candidate was ‘Anglican’.”

A plea for those who weren't in the courtroom

Mr Bruce Gray QC then made some concluding remarks to the Tribunal, and he left them with a metaphor.

“Christians,” he said, “sometimes regard themselves as being on a spiritual journey.

“In that collective pilgrimage, at different times some are further ahead of the group than others.

“There are some at the front, perhaps like pathfinders… who are convinced that they have found the path the group must take.

“And there are others at the back who are not certain. They are more cautious, waiting to hear the reports, and waiting to be persuaded.

The gap, he said, between the pathfinders and the more cautious ones is often wide – but it is the task of the bishop to keep them all within the group.

“The bishop can no more say to a pathfinder that goes far into the distance: ‘You’re going too quickly for us. Go your own way’ – than he can say to those who are at the back: ‘You’re going too slowly. We want to move on. We’re leaving you behind.’

“His task is to bring them all.

“I know the role of the Tribunal is to declare and promote equality and to ensure, where it can, that there is no discrimination.

“And I know that there is deep frustration at the pace of change on this issue.

“But the pace of change is explicable by the need to keep this disparate group talking together, and moving together.

“And the members of that group who haven’t been here this week are the ones at the back.

“They too have rights of religious freedom.

“And all I ask is that in doing your work… you bear in mind that group as well.

“And that you bear in mind the need for the defendant, the Bishop of Auckland, to keep this whole group… as pilgrims together.”

The Tribunal has reserved its decision.