Human Rights Act 1993

The Human Rights Act 1993 received its Royal assent on 10 August 1993 and came into force on 1 February 1994.

About the Human Rights Act

The Human Rights Act protects people in New Zealand from discrimination on certain personal characteristics in a number of areas of public life. The Act also prohibits sexual and racial harassment and the excitement of racial disharmony.

The Act provides for a Human Rights Commission and a Human Rights Review Tribunal.

What is discrimination?

Discrimination takes place when a person is treated unfairly or less favourably than another person in the same, or similar, circumstances.

Indirect discrimination
Sometimes, a law, rule or practice appears to treat everyone in the same way, but actually disproportionately disadvantages a person or group of persons because of their special characteristics. This is called indirect discrimination. Indirect discrimination is unlawful under the Human Rights Act, unless the person whose action or policy is in issue establishes good reason for it (see section 65 HRA).

When is discrimination unlawful?

Section 21 of the Human Rights Act prohibits discrimination on the following grounds:

  • sex, including pregnancy
  • marital status, including being in a civil union
  • religious belief
  • ethical belief
  • colour
  • race
  • ethnic or national origins
  • disability
  • age
  • political opinion
  • employment status
  • family status, or
  • sexual orientation.

It is unlawful to discriminate in the following areas of public life:

  • government or public sector activities
  • employment
  • access to education
  • access to public places, vehicles and facilities
  • provision of goods and services
  • provision of land, housing and accommodation
  • industrial and professional associations, qualifying bodies and vocational training bodies, and
  • partnerships.

Exceptions

Discrimination on the listed grounds in the above areas of life is not always unlawful. The Act contains a number of exceptions, which include:

  • Government or public sector activities covered by Part 1A of the HRA that are demonstrably justifiable in a free and democratic society under section 5 of the New Zealand Bill of Rights Act 1990, and
  • special measures implemented in good faith and necessary to achieve equality for one of the groups against whom it is unlawful to discriminate (section 73 HRA & Amaltal Fishing Company Ltd v Nelson Polytechnic (No 2) [1996] 2 HRNZ 225 (Complaints Review Tribunal)).

Human Rights Commission

The Commission has two primary functions. The first is to advocate and promote respect for, and an understanding and appreciation of, human rights in New Zealand society. The second is to encourage the maintenance and development of harmonious relations between individuals and among diverse groups in New Zealand society. In order to carry out its primary functions, the Commission has a number of other functions, including:

  • advocating for human rights
  • inquiring into infringements of human rights
  • making public statements on human rights and race relations
  • promoting understanding of the human rights dimensions of the Treaty of Waitangi
  • conducting human rights programmes, activities and education
  • publishing guidelines and voluntary codes of practice
  • receiving and inviting public representations on human rights
  • bringing proceedings and intervenes in court on human rights issues
  • reporting to the Prime Minister on how New Zealand complies with international human rights standards and legislation, and
  • developing a national plan of action for human rights.

The Commission consists of eight Human Rights Commissioners: the Chief Commissioner, the Equal Employment Opportunities Commissioner, the Race Relations Commissioner and five part-time Commissioners.

The Human Rights Commission offers a free, confidential service for members of the public with questions about human rights and complaints of unlawful discrimination. With respect to these complaints, the Commission provides for a dispute resolution service (mediation).

Contact the Commission

Human Rights Review Tribunal

If the mediation offered by the Commission is not successful, a complainant can take their issue to the Human Rights Review Tribunal. A complainant can apply for free legal representation to the Office of Human Rights Proceedings. As the Director of Human Rights Proceedings has limited resources to provide legal representation, he cannot provide this to all those who apply to him. Each case is assessed on its merits. If the Director decides to take a case, the service is free. If he decides not to provide legal representation, the complainant still has the right to take their case to the Tribunal but at their own expense.

The Tribunal hears cases brought with respect to alleged unlawful discrimination, sexual harassment and racial harassment under the Human Rights Act. The Tribunal also hears cases relating to alleged:

  • infringements of the privacy principles in the Privacy Act (or of codes of practice made under the Privacy Act), and
  • breaches of the Code of Patients' Rights (the Health and Disability (Code of Health and Disability Services Consumers' Rights) Regulations 1996).

Remedies
If the Tribunal finds that unlawful discrimination has taken place, it may – among other things - award the following remedies (see sections 92I and 92J HRA):

  • a declaration that a breach of the Human Rights Act has occurred
  • an order restraining the breach from continuing
  • damages (monetary compensation) against the person or agency who committed that breach
  • an order that a person or agency act in a particular way to redress any loss or damage suffered, and
  • in respect of legislation, a declaration that there has been an inconsistency with the right to freedom from discrimination affirmed in the Bill of Rights Act (and, therefore, a breach of Part 1A of the Act) in relation to a public sector agency.

Where a declaration of inconsistency is made, the declaration must be drawn to the attention of Parliament by the Minister in whose portfolio the discrimination has been found, along with the Government's response to that declaration.

Courts and other statutory bodies

Measures that amount to unlawful discrimination under the Human Rights Act may also be in breach of other legislation. Instead of submitting a complaint to the Commission, a person may be able to take his or her case to court or make a complaint to another organisation.

Examples of other procedures are: litigation before the courts under the New Zealand Bill of Rights Act 1990 (relating to any discrimination by the public sector), lodging a personal grievance under the Employment Relations Act, initiating proceedings against landlords under the Residential Tenancies Act, or submitting complaints to other statutory rights bodies such as the Independent Police Conduct Authority, the Children's Commissioner, the Health and Disability Commissioner or the Office of the Ombudsmen.

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