HUMAN RIGHTS IN NEW ZEALAND 20 1 0 Genuine occupational qualification or genuine As a consequence of Amaltal Fishing Co Ltd v Nelson justification Polytechnic (No. 2) 23 – at present the only case on special Section 97 allows the Human Rights Review Tribunal to measures – it is necessary to establish that the target declare that an act that would otherwise be unlawful group does not occupy an equal place in a community under part 2 is permissible because it amounts to a and the measure is necessary for them to achieve equality genuine occupational qualification, or is a genuine justifi- with others. However, if a law, policy or practice under cation. For example, in Avis Rent A Car Ltd v Proceedings s.19(2) does not meet the Amaltal criteria, it may still be Commissioner, 20 the tribunal accepted that the practice of rental car companies passing on to the client the higher insurance cost they incurred hiring vehicles to drivers under 25 was justified. justified under section 5 of the BoRA. For example, if a policy advantages a particular group against whom it is unlawful to discriminate, and its purpose is not to assist persons who are disadvantaged by discrimination, it may Special measures to ensure equality still be lawful if it is done in good faith and there is a Both the HRA 21 and the BoRA 22 provide for special rational connection between the purpose of the scheme measures. The provisions are similar. Both require any and what it seeks to achieve. measures to be taken in good faith and permit actions that would otherwise be unlawful. The person or groups must also need, or be reasonably supposed to need, Special measures are referred to in many international treaties. 24 Although the wording may differ, there is assistance in order to achieve an equal place in the international agreement on the need for such measures to community. advance the cause of vulnerable or disadvantaged groups or address historical disadvantage. The international instruments stipulate that special measures should not EXAMPLES OF SPECIAL MEASURES • An imbalance of doctors of a particular ethni- unfairly benefit any one group, and should last only as long as necessary to achieve equality. city, because it has been difficult for members Part 3 of that group to access higher education in the Part 3 of the HRA covers dispute resolution. Dispute past, could be redressed by reserving a specific resolution services of the HRA are free and confidential. number places at medical schools for that If a complaint falls within the Commission’s jurisdiction – group. that is, it appears to involve discrimination on one of the • Where gender inequality is a feature of a particular trade, then special measures could be justified as a way of attracting people from the under-represented group to join the industry. prohibited grounds – it will be referred to a Commission mediator, who will attempt to help the parties resolve the issue in the most efficient, informal and cost-effective manner. Most complaints are resolved either informally or through mediation. Settlement may involve an apology, an agreement not to repeat the action, education, training or compensation. 20 Avis Rent A Car Ltd v Proceedings Commissioner (1998) 5 HRNZ 501 21 HRA section 73, provides that anything that would otherwise amount to unlawful discrimination will not be unlawful if it is done or omitted in good faith for the purpose of assisting or advancing persons or groups of persons, being in each case persons against whom discrimination is unlawful; and those persons or groups need or may reasonably be supposed to need assistance to achieve an equal place with other members of the community. 22 The BoRA, section 19(2), states that measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of part 2 of the Human Rights Act 1993 do not constitute discrimination. 23 Amaltal Fishing Co Ltd. v Nelson Polytechnic (No. 2) (1996) 2 HRNZ 225 24 ICERD, Article 4(1)), and CEDAW, Article 4(1)), in the jurisprudence of the ILO supervisory bodies, and in ILO instruments such as ILO Convention 111 concerning Discrimination in Employment and Occupation, Article 5(2) 31