Enquiries and Complaints Guide
Discriminatory Laws
What does the Human Rights Act mean by discriminatory laws?
There are two main sources of domestic law in New Zealand:
- Enactments (laws passed by Parliament and other subordinate law-making bodies)
- Common law (decisions of courts).
Under the Act complaints can be made about discriminatory enactments, but not about discriminatory court decisions. Discriminatory court decisions can be appealed to a higher court.
Enactments include Acts (statutes) and regulations. There are a number of different types of regulations including statutory regulations, bylaws, and other instruments such as codes, rules or district plans that are issued under the authority of an Act that affect people’s rights.
What does the Human Rights Act say about discriminatory laws?
Only enactments that were passed, or that remain in force, after 1 January 2002 are subject to the Act. Complaints cannot be made about enactments that were repealed before that date. The anti-discrimination standard that applies to enactments is the same as that which applies to other public sector activities. A discriminatory enactment will generally speaking be in breach of the Act unless it is either a measure to ensure equality or is a justified limitation on the right to freedom from discrimination.
If an enactment is found to breach the Act the only possible remedies are:
- A declaration of inconsistency
- A finding that the enactment was ultra vires (beyond the power of the person who made it and therefore unenforceable).
Declarations of Inconsistency
The Human Rights Review Tribunal or a court may declare that an enactment is inconsistent with the Act. Declarations can be made concerning any enactment – including other Acts.
The main effect of a declaration of inconsistency if that it forces the Government to publicly reassess and report to Parliament on the need for the discriminatory enactment.
If a declaration is made the enactment is not repealed. It remains in force and no court can decline to enforce it. However, the Minister responsible for the enactment must report to Parliament on the declaration and on what the Government’s response to the declaration is.
Discriminatory regulations
A regulation (but not an Act) may be overturned by the High Court if:
- It is inconsistent with the Human Rights Act’s prohibition on discrimination
- The Act that authorised the making of the regulation did not explicitly or implicitly authorise the inconsistency.
Such findings are known as ‘ultra vires’. They can only be made by the High Court. The consequence of a finding that a regulation is ultra vires is that the regulation may be declared unenforceable.
Discrimination authorised by law
If discriminatory conduct is authorised by a law, complaints can only be made about the law itself rather than about the discriminatory conduct. For example: people below the age of 18 cannot vote in general elections. If a person 17 years or under complained about someone refusing to enrol them as a voter, the complaint would be dealt with as a complaint about the law rather than a complaint about the person who refused to enrol them.
Exceptions
Special Measures
Special measures (also known as affirmative action) are not considered to be unlawful discrimination if they are undertaken:
- In good faith
- For the purpose of assisting disadvantaged groups to achieve equality.
Justified Limitations
Under the Act the right to freedom from discrimination is subject to “such reasonable limits prescribed by law as may be demonstrably justified in a free and democratic society”.
This means that for a discriminatory action that would otherwise breach the Act to be lawful:
- It must be explicitly or implicitly authorised by a law
- There must be a good reason for it
- There must not be a less discriminatory or non-discriminatory means by which the objective could be achieved
- The person whose action has been challenged must be able to prove that the ends justify the means.