28 S e cti o n ON E – GENERAL The principle of equality sometimes requires Crown extended to Mäori the Queen’s protection and states to take affirmative action in order imparted to them “all the rights and privileges of British to diminish or eliminate conditions which subjects”. Apart from this, there is no specific reference cause or help to perpetuate discrimination in New Zealand law to equality, a fact that the United prohibited by the covenant. For example, Nations Committee on Human Rights has consistently in a state where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the state should take specific action to correct those conditions. 8 The most recent definition of discrimination in an international treaty is found in the Convention on the Rights of Persons with Disabilities, which defines discrimination as including denial of reasonable accommodation. The Convention also clarifies that specific measures which might be required to promote equality do not amount to discrimination. criticised in assessing New Zealand’s compliance with international standards on equality and freedom from discrimination. The New Zealand Bill of Rights Act 1990 (BoRA) does not address equality, and affirms it only indirectly by referring to the ICCPR in the long title. It is not an accident that there is no reference to equality in the BoRA. The idea of including an equality statement was considered during the drafting of the BoRA, but was rejected for a variety of reasons. The white paper 10 recorded concerns about the vagueness and uncertainty of what was actually meant by ‘equality before the law’ or, for that matter, ‘equal protection of the law’. However, this position has Effectively, therefore, a state’s obligation to respect, changed over recent years, and a human rights approach protect, promote and fulfil the right to freedom from to equality based on the idea of ‘treatment as an equal, discrimination is not limited simply to avoiding negative not equal treatment’ has gained ascendency. In 2009, measures, but includes taking positive measures to ensure the Human Rights Commission recommended to the equal results. In a democracy such as New Zealand, where Minister of Justice that an explicit reference to equality the courts play a significant role in interpreting constitu- in the Human Rights Act 1993 (HRA) and the BoRA was tional concepts, the convergence between parliamentary now necessary to ensure equal outcomes, not just equal sovereignty and the rule of law takes place through the treatment. litigation process. Right to freedom from discrimination New Zealand context Kaupapa o Aotearoa The principle of non-discrimination has been described as a substantial contributor to a society based on equality, and a core feature of a society based on democracy and Equality freedom, where each individual is valued as a person Equality is the most powerful idea in modern worthy of dignity and respect. 11 political thought; it underlies all major Although closely related, equality and the right to political theories, and animates the very idea freedom from discrimination are not the same: of a bill of rights: individuals have rights because each individual matters, and matters equally. 9 Discrimination and equality are terms that are often used to describe the opposite conclusions that may be reached in analysing The clearest statement on equality in New Zealand is government action. Distinctions thought found in Article 3 of the Treaty of Waitangi, in which the wrongful are said to be discriminatory, while 8 United Nations Human Rights Committee (1989), general comment 18, Non-discrimination: Compilation of general comments and general recommendations adopted by human rights treaty bodies (UN Doc.HRI\GEN\1\Rev.1, para 10) 9 Rishworth P, Optican S and Mahoney R (2003), the New Zealand Bill of Rights (Melbourne: OUP) 10 Palmer G (1985), A Bill of Rights for New Zealand: A White Paper (Wellington: AJHR 1, A6), para 10.8 11 Butler P and Butler A (2005), The New Zealand Bill of Rights Act: A Commentary (Wellington: LexisNexis), para 17.4.1