Discrimination and distinguishing between different groups
This is a single section from Chapter 7. Read the full chapter here.
Does the legislation affect the right to freedom from discrimination in section 19 of NZBORA?
Legislation should not discriminate on any of the prohibited grounds.
The starting point is that legislation should not discriminate on any of the prohibited grounds. However, it is not unlawful to discriminate by taking steps in good faith to assist or advance those disadvantaged by discrimination (section 19(2) of NZBORA). It will generally be important to take legal advice on the application of section 19(2), having regard to its requirement that the measures must be premised on assisting or advancing those disadvantaged due to discrimination.
Where discrimination by a public service agency on a prohibited ground is the only means of achieving an important policy objective, clear language must be used in the legislation and the limitation must be justified in a free and democratic society (refer to the general discussion on limiting NZBORA rights in Chapter 6). The courts will presume that Parliament has intended to legislate consistently with NZBORA and will interpret the legislation as such in the absence of clear indicators in the legislation.
Particular care should be exercised in social policy areas such as welfare, health, or education, where it is often necessary to treat groups differently to achieve a positive outcome for those groups. For example, it may be necessary to consider and treat people differently by reason of age, sex, marital status, and certain other characteristics. Early consultation with legal advisers is recommended for officials working in such areas.
The Human Rights Act 1993 also contains a number of exceptions to the right to freedom from discrimination that may be relevant to legislation. For example:
- it is not unlawful to exclude people of one sex from participating in competitive sporting activity in which the strength, stamina, or physique of competitors is relevant (section 49(1)); and
- it is not unlawful to provide goods, services, or facilities at a reduced fee, charge, or rate on the ground of age, disability, or employment status (section 51).
Seeking legal advice is important when the exceptions will be relied upon.