Apocalyptic literature can be difficult to interpret and in the Christian tradition there has long been debate about the complex meanings of Revelation, the last book of the Bible. One of the most famous passages concerns a “beast”, commonly understood as a reference to the anti-Christ, and its “mark”, usually represented by the number 666. According to Revelation, during the “last days” the “mark of the beast” will be imposed on all as a sign of allegiance to and worship of the anti-Christ and as a condition of participating in society. A sincere Christian, therefore, will resist the imposition of the mark.

Butcher was such a Christian, though one with a unique understanding of this passage. He believed that the number of the beast, when rendered in Roman numerals, represented a string of 1s and 0s and therefore a binary computer code. On the basis of this interpretation, he believed that holding a photo driver licence, involving a digitised photograph, a digitised signature, and a bar code, meant accepting the mark of the beast. He challenged the requirement to hold such a licence, arguing that it discriminated against him because of his religious beliefs.

The Human Rights Review Tribunal approached Butcher’s claim thoroughly and respectfully. They accepted that his beliefs were genuine and sincere, not least because holding to them (and therefore being unable to drive) had cost him employment opportunities. He had also attempted to source and even build “motorised transport” that he could drive without a licence, though this had failed. But, drawing on expert evidence that, “In the history of interpretation ... these interpretive steps are all unique to Mr Butcher” and Butcher’s own evidence failing to prove that even one other person shared his view, the Tribunal considered that his belief about calculating the “mark of the beast” could fairly be described as “idiosyncratic”.

The Tribunal went on to consider each element of this claim carefully. Butcher advanced 11 causes of action, which the Tribunal addressed under three main headings.

(1) What does “religious belief” mean and require?

It was important that Butcher had brought his case before the Tribunal as a claim under Part 1A of the Human Rights Act 1993 (HRA), which references section 19 of the New Zealand Bill of Rights Act 1990 (NZBORA). This meant that Butcher had to prove he was being discriminated against, and not simply that his religious freedom was being limited, an argument that could have been available if he had brought his case before the High Court under the broader provisions of sections 13 and 15 of the NZBORA.

He argued that “religious belief” in the HRA should be interpreted to include not merely holding a belief but the “manifestation” of that belief. If successful, this would have expanded the HRA’s protection and allowed Butcher to argue that he was discriminated against because he was being prevented from putting his belief into practice. However, the Tribunal did not accept this argument, saying that it amounted to an attempt to have the law protect “not only ... his right to hold a belief but also its substance and content”. The HRA only protects someone from direct discrimination on the basis that they hold a belief; unlike section 15 of the NZBORA, it does not protect their ability to give effect to that belief. It was also important that the expanded definition advanced by Butcher would have applied to a wider range of cases (specifically, in complaints against private actors under Part 2 of the HRA) where there was no statutory mechanism “to justify differential treatment”. By contrast, Part 1A cases that depend on section 19 of the NZBORA also employ the associated concept of “justified limitation” of rights.

Butcher also argued that where government measures impact on religious beliefs, the right to freedom from discrimination means those measures must include reasonable accommodations for those beliefs. The Tribunal disagreed and, citing the Court of Appeal in Mendelssohn v Attorney-General [1999] 2 NZLR 268, held that this freedom is “negative” and not positive. In other words, the state cannot interfere with these freedoms (without legal justification) but it is not required to promote them. Non-discrimination law does not require the government to accommodate all religious (and non-religious) beliefs; this would be “a very significant burden on public policy and legislative decision makers.” Instead, a complainant has to show they have actually suffered discrimination before the question of reasonable accommodation can arise, and then it will be considered under the relevant legal framework (under the heading of “justified limitation” in a Part 1A case or in light of the statutory accommodations in a Part 2 case).  

(2) Was there actual discrimination in this case, direct or indirect?

Butcher argued first that the process involved in passing the driver licensing law was itself discriminatory. The Tribunal ruled out this argument, saying that a court or tribunal can only ask whether the substance of a law is discriminatory.

As for the substance, Butcher’s key claim was that “he is treated differently to others because his religious beliefs do not allow him to hold a driver licence in the form required” by the law. A comparator is used to assess whether discrimination occurred—someone in similar circumstances to the complainant whose actual or hypothetical treatment helps to show whether the complainant was treated differently because of a prohibited ground of discrimination. Butcher argued that the appropriate comparator was “a person without his religious belief regarding photo identification.” The Tribunal disagreed, saying that this “built the contested assumptions into his comparator choice.” In fact, the Tribunal held that the relevant provisions were “facially neutral”. That is, on their face, they treat everyone neutrally or equally: “Everyone, whatever their religious belief, is treated the same by them.” The provisions do not “contemplate the use of religious belief as a basis for distinguishing between anyone.” Butcher therefore could not show he had been discriminated against directly.

Next, the Tribunal considered whether there was indirect discrimination against Butcher. Drawing on High Court authority, it held that the prohibition of indirect discrimination only protects groups, not individuals; “an adverse impact on solitary believers is not sufficient to found an indirect discrimination claim.” In other words, Butcher needed to show that he belonged to a group defined by religious beliefs about photo driver licences. Because the evidence did not prove that any other person shared this belief, he could not show this group membership. Instead, the Tribunal said the group he belonged to should be defined as “orthodox Christians” and Butcher needed to show that this group was “disproportionately affected” by the law, which could include demonstrating “emotional and spiritual discomfort [caused by] acting contrary to one’s beliefs”. There was no evidence before the Tribunal that suggested this harm existed.

This analysis disposed of many of Butcher’s claims, including that:

• allowing others to hold temporary paper licences (for example, while they waited for a permanent photo licence to be sent to them) but not allowing him to hold a paper licence was discriminatory;
• accommodating “lifestyle choice[s]” about the consumption of alcohol (by specifying legal limits) privileged these choices over his beliefs.

Finally, the Tribunal held that the outcome would have been the same even if it had concluded that “religious belief” in the HRA included the manifestation of beliefs and not merely holding the belief itself. That was because “[t]he impugned provisions remain neutral ones”.

(3) If there was discrimination, was it justified?

Although the conclusion that there was no direct or indirect discrimination would have been sufficient to dispose of the case, the Tribunal went on to ask: if there was in fact discrimination, was it nevertheless justified?

The Tribunal followed the usual methodology asking, first, what the purpose of the law was and whether the allegedly discriminatory provisions were rationally connected to that purpose. It found that, “the purpose of photo driver licences is to improve driver licence integrity and through this to improve road safety.” This was a “sufficiently important” purpose to justify limiting the right to freedom from discrimination, and the digitised elements of the driver’s licence were linked to this purpose because they “enhance detection of road safety infringements and licence fraud.”

Next, the Tribunal asked whether any limit on Butcher’s right was proportionate, specifically whether any impairment was minimal and whether it was “overall” proportionate. Butcher argued that the New Zealand Transport Authority could have “set up a panel to consider applications for exemption” from the licence requirements, so that those with sincere religious objections could be accommodated under the law. Because they had not done this, he said, the limit on his rights was more than minimal. The Tribunal disagreed because a panel like this would not be practical. Butcher also argued that there were other accommodations for religious belief in the relevant provisions, for example permitting head coverings to be worn, and that this showed that the law had been “insufficiently tailored” to take account of his equally valid beliefs. The Tribunal disagreed, noting that those accommodations were still designed to achieve the law’s purpose, for example by requiring “a good likeness”, while Butcher was attempting “to avoid the very measures which have been put in place to improve the integrity of the driver licence system.” As for overall proportionality, the Tribunal held, “the impact is that which relates to a single person ... the public benefit of a photo driver licence far outweighs the cost and inconvenience to Mr Butcher” from maintaining his individual religious beliefs.

As a result, the Tribunal said that if there had been any limit on Butcher’s right to freedom from discrimination, that limit would have been justified.

Conclusion

The Tribunal summed up its decision like this:

Mr Butcher is not treated differently either in terms of his belief (or the manifestation of that belief). The laws which he claims are discriminatory are framed in neutral terms. Others who share his objection to the photo driver licence requirements but not his religious belief are treated in exactly the same way. … any discrimination that arises does so indirectly. [However,] Mr Butcher … has failed to establish he is a member of a religious group disadvantaged by the impugned provisions.

Had we considered the photo driver licence requirements prima facie breached [the right to freedom from discrimination], we would have concluded they are nevertheless justified. Extensive and compelling evidence about the need to improve driver licence integrity was led. The accommodations offered to others could not be offered to Mr Butcher as a good likeness is still required for the integrity of the system to be maintained. Unlike those driving on temporary paper licences or foreign licences, the exemption sought was both permanent and unsupported by international conventions. Further, it would need to be offered to others, not just to Mr Butcher, further undermining the integrity of the system. In our view, the public benefit arising from the improvement to road safety through improved licence integrity far outweighs Mr Butcher’s right to drive.

At the conclusion of this extensive and respectful treatment of Butcher’s claim, and despite the fact that the Crown had won, the Tribunal did not order him to pay costs.  

Butcher v New Zealand Transport Authority [2022] NZHRRT21

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