Discrimination and distinguishing between different groups
This is a single section from Chapter 6. Read the full chapter here.
Does the legislation affect the right to freedom from discrimination in s. 19 NZBORA?
Legislation should not discriminate on one 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 (s 19(2) NZBORA).
Discrimination by a state sector organisation on a prohibited ground will be, on its face, a limit on the NZBORA right to be free from discrimination. Where the discrimination 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 (see Chapter 5). 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 certain groups. Early consultation with legal advisers is recommended for officials working in such areas.
The Human Rights Act also contains a number of exceptions to the right to freedom from discrimination that may be relied on by both State sector and private organisations. For example:
- it is not unlawful to discriminate in employment matters on the grounds of sex or age, where for reasons of authenticity being a particular sex or age is a genuine qualification for the job (s 27(1));
- it is not unlawful to discriminate in certain circumstances in relation to insurance (s 48) or superannuation (s 70), where the discrimination is based on actuarial or statistical data.