HUMAN RIGHTS IN NEW ZEALAND 20 1 0 those considered appropriate are said to respect equality. This has led some to suppose that freedom from discrimination and equality are the same thing. But a world without discrimination is not necessarily a world of equality. 12 New Zealand courts have identified links between freedom from discrimination and the concept of equality in international human rights standards. In Quilter v Attorney-General, 13 for example, the Court of Appeal noted that equality is one of the core principles underlying New Zealand’s law on discrimination. Statutory protection of freedom from discrimination The New Zealand Bill of Rights Act 1990 (BoRA) The BoRA affirms New Zealand’s commitment to the ICCPR, although there is no explicit reference to equality before the law. 14 The right to privacy or reputation and family and children’s rights (which are also found in the ICCPR) are not found in the BoRA, but are partly addressed in other legislation. Although the BoRA is not entrenched legislation and it does not confer the power on the Courts to strike down inconsistent legislation, it has acquired special status discrimination, but allows it to be restricted if the restriction can be established as a justified limitation. The HRA, on the other hand, makes it unlawful to treat people differently in certain areas unless a specific exception applies. In 2001 an amendment to the HRA meant that for the first time since the “new grounds” were introduced in 1993, 15 the public sector became accountable on all the grounds of discrimination. As the BoRA standard was thought more appropriate to address government compliance, for the purposes of Part 1A, the procedures of the HRA apply, but the interpretation of the right to be free from discrimination is decided by reference to the BoRA. Human Rights Act 1993 (HRA) The HRA makes it unlawful to discriminate on the grounds of sex (including pregnancy and childbirth), marital status, religious belief, ethical belief, colour, race, ethnic or national origin (including nationality or citizenship), disability, age, political opinion, employment status, family status and sexual orientation. The grounds apply if they are assumed to relate to a person, relative or associate, and if they exist at present or have existed in the past (for example, if a person has recovered from an illness but is treated as though they still have it). to freedom from discrimination, they do it differently. Although the grounds substantially reflect New Zealand’s international commitments, the international monitoring bodies have been critical of the omission of ‘language’ as a ground of unlawful discrimination. The omission of social origin or social class is also considered significant. During the consultation process for this chapter, a number of submitters suggested increasing the grounds of prohibited discrimination to include type of employment, 16 social class and size. The Commission itself considers that the existing grounds could be clarified to make explicit that the HRA covers trans people and women who The BoRA affirms a general right to freedom from breast-feed. as a result of the rights it protects. The BoRA is directed principally at public-sector activity, including actions of the legislature, the executive and the judiciary. It is made up of three parts. Part 1 directs how the act is to be interpreted; part 2 identifies the substantive rights (including freedom from discrimination on the same grounds as in the HRA); and part 3 deals with miscellaneous matters. While both the HRA and the BoRA protect the right 12 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) 13 [1998] 1 NZLR 523 14 ICCPR, Article 26 15 Until 1993 it was only unlawful to discriminate on the grounds of sex, marital status, religious or ethical belief, colour, race, and ethnic or national origin. After 1993 there were 13 grounds: sex (including pregnancy and childbirth), marital status, religious belief, ethical belief, colour, race, ethnic or national origin (including nationality or citizenship), disability, age, political opinion, employment status, family status and sexual orientation. 16 Submission by the Prostitutes Collective to the Review of Human Rights in New Zealand (2010). The collective noted that the inability to complain about discrimination leaves their members particularly vulnerable and makes it difficult to transition out of the industry. 29