HUMAN RIGHTS IN NEW ZEALAND 20 1 0 • McAlister v Air New Zealand Ltd 41 involved 61 and the need to balance the inciting of a pilot who was demoted by Air New Zealand racial disharmony against the right to freedom when he turned 60, because he could no longer of expression. fly to countries which were signatories to the ICAO. Captain McAlister complained that he had been discriminated against because of his age. To establish discrimination, it was necessary to identify that he had been treated less favourably by reason of his age than those in a comparable situation. The Supreme Court • Talleys Fisheries Ltd v Lewis 45 was a landmark sex-discrimination case that found a major employer had segregated women into work which, although substantially similar to that performed by men, was paid less. • In Re AMM and KJO, 46 the High Court held stated that the comparator selected should that the word ‘spouses’ can be read as applying not be so complicated and technical that it to a de facto couple of the opposite sex, in ruled out discrimination at an early stage of respect of an application made under the an inquiry, this being inconsistent with the Adoption Act 1955. purpose of anti-discrimination legislation. Although McAlister was decided in the context of employment legislation, the process for defining discrimination is now much clearer. • Trevethick v Ministry of Health 42 involved an Conclusion Whakamutunga New Zealand generally meets the international standards for protection of the right to freedom from discrimination application for a declaration that the Ministry through the HRA and the BoRA. The prohibited grounds of of Health’s funding policy discriminated on the discrimination are reasonably comprehensive by inter- ground of disability, because Ms Trevethick national standards, and discriminatory legislation can be would have received greater support under the challenged by obtaining a declaration of inconsistency ACC scheme if her disability had been caused from the Human Rights Review Tribunal. by an accident. The plaintiff was unsuc- There have also been some significant developments in cessful but, of necessity, the case involved the area of discrimination law, including a number of consideration of the definition of ‘disability’. cases which have clarified the interpretation of aspects The High Court recognised that the definition of the HRA. However, the body of jurisprudence is still needs to be considered in the context of the not large. The Commission has therefore adopted a more legislation as a whole. While the definition is proactive approach to this area of work since 2004. It has exhaustive, there is still scope for argument developed a litigation strategy, and identifies cases where about the meaning of terms such as ‘disability’, it can intervene or initiate proceedings to contribute to ‘impairment’, ‘illness’ and ‘abnormality’. a more substantial body of local jurisprudence, so as to • Bissett v Peters 43 and Easton v Human Rights better inform the understanding of human rights. Commission & Anor 44 both, in different ways, Despite this (as can be seen throughout this review), endorsed the Commission’s approach to section discrimination persists and inequalities remain. 41 [2009] NZSC 78 42 [2008] NZAR 454 43 10/08/04 HRRT Decision 33/04 44 HC WN CIV-2009-485-762 (10/2/10), para 25 45 (2007) 8 HRNZ 413 46 HC WN CIV-2010-485-328 (28/6/10) 35