Government or Public Sector Activities

What does the Human Rights Act mean by government or public sector activities?

Under the Act, unlawful discrimination by the public and private sectors is addressed in different ways.

The term ‘public sector’ means:

  • anything done by central Government (including all ministries and departments)
  • actions done by people or organisations that are performing a public function conferred on them by law (such as schools providing public education, licensing authorities issuing licenses, local authorities providing water or sewerage facilities).

What does the Human Rights Act say about government or public sector activities?

The Act prohibits unlawful discrimination by the Government of New Zealand (central Government) and by any person or body performing a public function conferred by law.

This prohibition applies to all three branches of Government: the legislature (Parliament), the judiciary and the executive (which includes all ministries and departments). It covers most Government activity.

Exceptions

Complaints cannot be made to the Commission about:

  • Unlawful discrimination that occurs within Parliament (including select committees). Complaints of this type should be made to the Speaker of the House.
  • Discriminatory judgments or decisions of courts. Such complaints must be dealt with by appeals within the Court system.
  • Issues relating to immigration decisions.

However, if unlawful discrimination occurs in almost any other context a complaint may be made to the Commission.

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.

Further information

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