34 S e cti o n ON E – GENERAL New Zealand today Aotearoa i tënei rä There have been some significant developments in the area of discrimination law since 2004, including changes to part 2 of the HRA – principally in the employmentrelated provisions – to ensure that the act complies with the United Nations Convention on the Rights of Persons with Disabilities. Income Tax Act relating to the eligibility for tax credits under the Working for Families scheme discriminated against families on benefits. While the tribunal found that the policy was discriminatory, it considered it could be justified under section 5 of the BoRA. The tribunal also endorsed a test for identifying discrimination – namely, it is enough to establish different treatment on There have also been a number of cases involving the one of the prohibited grounds (not whether interpretation of discrimination and aspects of the HRA, it is wrong), and then to establish if it can be partly as a result of the ability to challenge discrimina- justified (citing the test in R v Hansen 37). This tory legislation and policy under part 1A. Recognising the clarified certain procedural issues, including power and importance of litigation, the Commission has whether a complainant had to actually taken a more proactive approach since its 2004 review of human rights in New Zealand, developing a litigation strategy and identifying areas where it could usefully intervene or initiate proceedings to contribute to the development of a more substantial body of jurisprudence, so as to better inform understanding of human rights. experience detriment in order to make a complaint, and affirmed that the Government does not have an unfettered discretion to legislate in a discriminatory manner in the area of social policy. 38 • In Attorney-General v Human Rights Review Cases Tribunal, 39 the High Court affirmed that it Over the past five years the following cases have was not essential for a complainant to have addressed issues relating to the interpretation of discrimi- personally suffered detriment to bring a nation and aspects of the HRA: complaint, noting that “… the complainant • Howard v Attorney-General (No. 3) 35 was the need not act in a representative capacity for first case under Part 1A. Mr Howard complained that the Injury Prevention Rehabilitation and Compensation Act discriminated against him on the ground of age because he case that anyone may lodge a complaint with the Commission”. • In Atkinson & Ors v the Ministry of Health, 40 was no longer eligible for rehabilitation when parents who were caring for family members he turned 65. The Tribunal agreed that it was with disabilities challenged the Ministry of discriminatory and could not be justified. Health’s policy of not paying them as discrimi- • Child Poverty Action Group Inc v AttorneyGeneral (CPAG) 36 involved an application by CPAG for a declaration that aspects of the 35 an aggrieved person … it has always been the nation by reason of family status. The tribunal agreed that it was discriminatory and that it could not be justified under section 5 of the BoRA. (2008) 8 HRNZ 378 36 16/12/08 HRRT Decision 31/08 37 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 368) 38 16/12/08 HRRT Decision 31/08, para 214 39 (2006) 18 PRNZ 285 40 HRRT 33/05, Decision No. 01/2010