Completion of Consistency 2000 2/2

Completion of Consistency 2000

Associate Minister of Justice Margaret Wilson

August 2001

The Human Rights Amendment Bill has three main components as follows:

• It provides that all human rights complaints regarding government activities
  will be tested under the anti-discrimination standard of the New Zealand Bill of
  Rights Act 1990. This standard will allow the government to discriminate if it
  can be "demonstrably justified in a free and democratic society." For example
  the government may provide social security benefits to targeted groups which
  would be "demonstrably justified."

  The exception to this is government employment practices in the area of
  employment (and the related areas of racial and sexual harassment) will remain
  subject to the existing provisions of the Human Rights Act. Government activity
  in these areas will be tested under the Human Rights Act standard.

• It makes changes to our human rights institutional framework and the
  processes for resolving individual disputes.
• It amends a number of other Acts to align them with the government's human
  rights policy.

Specifically:

• It addresses the December 31 2001 expiry of the current government exemption
  from the Human Rights Act - at the moment legislation and regulations are exempt
  and it is also not possible to bring complaints against government for the "new"
  grounds of discrimination added in 1993, including age, disability, sexual
  orientation and family status.
• The Bill of Rights Act anti-discrimination standard provides that citizens
  have a general right to be free from discrimination by government, and that
  rights can only be subject to reasonable limits. The law says a limit is
  "reasonable" if it can be "justified in a free and democratic society".
• It combines the Human Rights Commission and the Office of the Race Relations
  Conciliator.
• The combined office would retain the name Human Rights Commission and would
  be focused on strategic leadership, human rights education and advocacy.
• There would be a full-time Chief Human Rights Commissioner and a full-time
  Race Relations Commissioner, plus up to five part-time Commissioners.
• The Commissioners would be appointed to operate collectively to undertake
  strategic leadership, advocacy and education and to provide leadership and
  direction to the work of the Commission as a whole. They would be supported by
  the General Manager and staff of the Commission.
• An autonomous Office of Human Rights Proceedings led by the Director of
  Human Rights Proceedings would be situated within the Human Rights Commission.
  The Office and the Director would be responsible for providing publicly-funded
  representation to complainants in proceedings under the Human Rights Act, with
  decisions on representation guided by criteria in the legislation.
• All problems relating to both government and non government human rights
  compliance will be dealt with by the Commission with a publicly funded problem
  solving / dispute resolution process.
• The Commission will endeavour to assist the parties to resolve the dispute
  by providing services such as: information gathering and expert advice,
  including mediation services whenever possible.
• If mediation fails or is inappropriate, the complainant may take the case to
  the Human Rights Review Tribunal for adjudication. (This is the renamed
  Complaints Review Tribunal).
• Where Government policies or practices are found by the Tribunal or the
  Courts to contain unjustified discrimination the full range of remedies in the
  Human Rights Act will be available. These include the awarding of financial
  damages, orders to refrain from repeating the discriminatory activity,
  declarations that the Government has breached the Act, and such other relief as
  the Tribunal thinks fit.
• When legislation or regulations are found to contain unjustified
  discrimination the remedy will be a declaration of inconsistency, which the
  responsible Minister will be required to bring to the attention of the house,
  along with the Executive's response to that declaration.

  With regard to amendments to other Acts to help bring them into line with
  current anti-discrimination social expectations:

• A number of provisions are amended to extend "next-of-kin" status from only
  married couples to include de facto and same sex couples. For example, the Human
  Tissue Act 1964 which requires spousal consent for various procedures on
  deceased persons is amended to recognise the surviving de facto partner (whether
  of the same or opposite gender). Similarly, the entitlement to special leave
  provisions of the Holidays Act 1981 are amended to recognise de facto partners
  (whether of the same or opposite gender).
• A large number of Acts are amended by replacing "disability" as a ground for
  removal from statutory appointments with "inability to perform the functions of
  the office". This includes amendments to the Clerk of the House of
  Representatives Act 1988, the Commerce Act 1986, the Alcohol Advisory Council
  Act 1976, the Dairy Board Act 1961, the Higher Salaries Commission Act 1977, the
  Maori Trust Board act 1955 etc.
• The War Pensions Act 1954 (including relevant regulations) is amended in
  respect of provisions relating to domestic partnership arrangements and family
  structure and care provision to remove existing unjustified discrimination on
  the grounds of marital status or sexual orientation.
• Minor amendments are also made to the Land Transfer Act 1952, the Births,
  Deaths and Marriages Registration Act 1955, the Marriage Act 1955, and the
  Police Act 1958 to remove various instances of unjustified discrimination. For
  example, the Police Act is amended to remove the mandatory retirement age and
  extend the current obligation on males (over 18 years of age) to give assistance
  to the Police to females over 18 years of age.
• Amendments are also included to narrow the government's current broad
  immigration exemption and ensure that while the litigation processes in the
  Human Rights Act cannot be used to disrupt individual immigration decisions, the
  Human Rights Commission is able to exercise its other inquiry, public statement
  and reporting functions with regard to immigration matters generally.