New Zealand – Human Rights Act

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An Act to consolidate and amend the Race Relations Act 19711 and the Human Rights Commission Act 1977 and to provide better protection of human rights in New Zealand in general accordance with the United Nations Covenants or Conventions on Human Rights.

[Editor’s Note: Excerpts of the Act published below contain provisions prohibiting discrimination on numerous grounds including sex, marital status, religious belief, race and disability. Discrimination on such grounds is specifically prohibited in respect of employment, membership of industrial and professional associations, training, access to facilities and other related matters.]

 


TABLE OF CONTENTS

Short title and commencement

Interpretation

Act to bind the Crown

PART I. HUMAN RIGHTS COMMISSION

Continuation of Human Rights Commission

Functions and powers of Commission

Membership of Commission

Functions of Commissioners

PART II. UNLAWFUL DISCRIMINATION

Prohibited grounds of discrimination

Discrimination in employment matters

Discrimination in partnerships

Discrimination by industrial and professional associations, qualifying bodies, and vocational training bodies

Discrimination in provision of land, housing, and other accommodation

Discrimination in access to educational establishments

Other forms of discrimination

Special provisions relating to superannuation schemes

Power to vary trust deeds

Other matters

PART III. COMPLAINTS ABOUT UNLAWFUL DISCRIMINATION

PART IV. COMPLAINTS REVIEW TRIBUNAL Complaints Review Tribunal

PART V. POWERS IN RELATION TO INVESTIGATIONS

PART VI. INCITING RACIAL DISHARMONY

PART VII. MISCELLANEOUS PROVISIONS

Savings

Special provisions in relation to written employment contracts in force on 1 April 1992 


Section 1. Short title and commencement. (1) This Act may be cited as the Human Rights Act 1993.

(2) This Act shall come into force on 1 February 1994.

Section 2. Interpretation. In this Act, unless the context otherwise requires:

Commission” means the Human Rights Commission that is continued by section 4 of this Act;

Commissioner” means a member of the Commission;

Complaints Division” means the Complaints Division referred to in section 12(1) of this Act;

Complaints Review Tribunal” or “Tribunal” means the Complaints Review Tribunal that is continued by section 93 of this Act;

Dispose“, in sections 53 and 54 of this Act, includes sell, assign, lease, let, sublease, sublet, license, or mortgage, and agrees to dispose;

Employer“, in Part II of this Act, includes:

  • (a) the employer of an independent contractor;
  • (b) the person for whom work is done by contract workers pursuant to a contract between that person and the person who supplies those contract workers; and
  • (c) the person for whom work is done by an unpaid worker;

and “employment“, in Part II of this Act, has a corresponding meaning;

Employment contract” has the meaning given to that term by section 2 of the Employment Contracts Act 1991;

Minister” means the Minister of Justice;

Proceedings Commissioner” means the Proceedings Commissioner appointed under section 7(1)(d) of this Act;

Prohibited ground of discrimination” has the meaning given to it by section 21 of this Act;

Race Relations Conciliator” or “Conciliator” means the Commissioner appointed to be the Race Relations Conciliator under section 7(1)(b) of this Act;

Relative“, in relation to any person, means any other person who:

  • (a) is related to the person by blood, marriage, affinity, or adoption; or
  • (b) is wholly or mainly dependent on the person; or
  • (c) is a member of the person’s household;

Residential accommodation“, in sections 53 and 54 of this Act, includes accommodation in a dwellinghouse, flat, hotel, motel, boarding-house, or camping ground;

Superannuation scheme” means any superannuation scheme, fund, or plan, or any provident fund, set up to confer, on its members or other persons, retirement or other benefits, such as accident, disability, sickness, or death benefits.

Trustees“, in relation to a superannuation scheme, includes the person or persons appointed to administer a superannuation scheme constituted under an Act of Parliament of New Zealand.

Section 3. Act to bind the Crown. This Act shall bind the Crown.


PART I. HUMAN RIGHTS COMMISSION

Section 4. Continuation of Human Rights Commission. (1) There shall continue to be a Human Rights Commission, which shall be the same body as the Human Rights Commission established under section 4 of the Human Rights Commission Act 1977.

(2) The Commission shall be a body corporate with perpetual succession and a common seal, and shall be capable of acquiring, holding, and disposing of real and personal property, and of suing and being sued.

(3) Without limiting any other provision of this Act, the Commission shall have the rights, powers, and privileges of a natural person.

Functions and powers of Commission

Section 5. Functions and powers of Commission. (1) The functions of the Commission shall be:

  • (a) to encourage, by education and publicity, respect for and observance of human rights;
  • (b) to encourage and co-ordinate programmes and activities in the field of human rights;
  • (c) to make public statements in relation to any matter affecting human rights, including statements promoting an understanding of, and compliance with, this Act;
  • (d) to prepare and publish, as the Commission considers appropriate, guidelines for the avoidance of acts or practices that may be inconsistent with, or contrary to, the provisions of this Act;
  • (e) to receive and invite representations from members of the public on any matter affecting human rights;
  • (f) to consult and cooperage with other persons and bodies concerned with the protection of human rights;
  • (g) to inquire generally into any matter, including any enactment or law, or any practice, or any procedure, whether governmental or nongovernmental, if it appears to the Commission that human rights are, or may be, infringed thereby;
  • (h) to report to the Prime Minister from time to time on:
  • (i) any matter affecting human rights, including the desirability of legislative, administrative, or other action to give better protection to human rights and to ensure better compliance with standards laid down in international instruments on human rights;
  • (ii) the desirability of New Zealand becoming bound by any international instrument on human rights;
  • (iii) the implications of any proposed legislation (including subordinate legislation) or proposed policy of the Government that the Commission considers may affect human rights;
  • (i) to examine, before 31 December 1998, the Acts and regulations that are in force in New Zealand, and any policy or administrative practice of the Government of New Zealand;
  • (j) to determine, before 31 December 1998, whether any of the Acts, regulations, policies, and practices examined under paragraph (i) of this subsection conflict with the provisions of Part II of this Act or infringe the spirit or intention of this Act;
  • (k) to report to the Minister, before the close of 31 December 1998, the results of the examination carried out under paragraph (i) of this subsection and the details of any determination made under paragraph (j) of this subsection;
  • (l) to make public statements in relation to any group of persons in, or who may be coming to, New Zealand, who are or may be subject to hostility, or who have been or may be brought into contempt, on the basis that that group consists of persons against whom discrimination is unlawful by virtue of section 61 of this Act;
  • (m) to do anything incidental or conducive to the performance of any of the functions set out in paragraphs (a) to (l) of this subsection;
  • (n) to exercise and perform such other functions, powers, and duties as are conferred or imposed on the Commission by or under this Act or any other enactment.

(2) The Commission may from time to time, in the public interest or in the interests of any person or department or organisation, publish reports relating generally to the exercise of its functions under this Act or to any particular case or cases investigated under this Act, whether or not the matters to be dealt with in any such report have been the subject of a report to the Minister or the Prime Minister.

Section 6. [Powers relating to declaratory judgements.]

Membership of Commission

Section 7. Membership of Commission. (1) The Commission shall consist of the following Human Rights Commissioners:

  • (a) a Chief Commissioner;
  • (b) a Commissioner appointed to be the Race Relations Conciliator;
  • (c) the Privacy Commissioner appointed under the Privacy Act 1993;
  • (d) a Commissioner appointed to be the Proceedings Commissioner;
  • (e) not more than three other Human Rights Commissioners.

(2) The Human Rights Commissioners appointed under paragraph (a) or paragraph (b) or paragraph (d) or paragraph (e) of subsection (1) of this section shall be appointed by the Governor General on the recommendation of the Minister.

Sections 89. [Alternate Commissioners; criteria for appointment.]

Functions of Commissioners

Section 10. Functions of Chief Commissioner. (1) The functions of the Chief Commissioner shall be:

  • (a) to chair the Human Rights Commission;
  • (b) to be responsible for matters of administration in relation to the Commission;
  • (c) to allocate spheres of responsibility among the Commissioners;
  • (d) subject to section 11(b) of this Act, to designate Commissioners to be members of the Complaints Division.

(2) The Chief Commissioner shall also have such other functions, powers, or duties as are conferred or imposed on him or her by or under this Act or any other enactment.

Section 11. Functions of Race Relations Conciliator. The functions of the Race Relations Conciliator shall be:

(a) in matters of race relations, to exercise the functions and powers and perform the duties conferred by sections 5 and 6 of this Act unless in a particular case the Chief Commissioner and the Race Relations Conciliator agree that the Commission should exercise those functions or powers or perform those duties itself;

(b) to be a member of the Complaints Division in respect of complaints of, or investigations into:

  • (i) discrimination on the grounds of race, colour, or ethnic or national origins;
  • (ii) discrimination on any other ground described in section 21(1) of this Act in respect of which the Race Relations Conciliator and the Chief Commissioner have agreed that the Conciliator shall be a member of the Complaints Division;

(c) to be responsible for matters of administration in relation to the functions of the Race Relations Conciliator.

Sections 1220. [Complaints Division.]

 


PART II. UNLAWFUL DISCRIMINATION

Section 21. Prohibited grounds of discrimination. (1) For the purposes of this Act, the prohibited grounds of discrimination are:

  • (a) sex, which includes pregnancy and childbirth;
  • (b) marital status, which means the status of being:
  • (i) single; or
  • (ii) married; or
  • (iii) married but separated; or
  • (iv) a party to a marriage now dissolved; or
  • (v) widowed; or
  • (vi) living in a relationship in the nature of a marriage.
  • (c) religious belief;
  • (d) ethical belief, which means the lack of a religious belief, whether in respect of a particular religion or religions or all religions;
  • (e) colour;
  • (f) race;
  • (g) ethnic or national origins, which includes nationality or citizenship;
  • (h) disability, which means:
  • (i) physical disability or impairment;
  • (ii) physical illness;
  • (iii) psychiatric illness;
  • (iv) intellectual or psychological disability or impairment;
  • (v) any other loss or abnormality of psychological, physiological, or anatomical structure or function;
  • (vi) reliance on a guide dog, wheelchair, or other remedial means;
  • (vii) the presence in the body of organisms capable of causing illness;
  • (i) age, which means:
  • (i) for the purposes of sections 22 to 41 and section 70 of this Act and in relation to any different treatment based on age that occurs in the period beginning with 1 February 1994 and ending with the close of 31 January 1999, any age commencing with the age of 16 years and ending with the date on which persons of the age of the person whose age is in issue qualify for national superannuation under section 3 of the Social Welfare (Transitional Provisions) Act 1990 (irrespective of whether or not the particular person qualifies for national superannuation at that age or any other age);
  • (ii) for the purposes of sections 22 to 41 and section 70 of this Act and in relation to any different treatment based on age that occurs on or after 1 February 1999, any age commencing with the age of 16 years;
  • (iii) for the purposes of any other provision of Part II of this Act, any age commencing with the age of 16 years;
  • (j) political opinion, which includes the lack of a particular political opinion or any political opinion;
  • (k) employment status, which means:
  • (i) being unemployed; or
  • (ii) being a recipient of a benefit or compensation under the Social Security Act 1964 or the Accident Rehabilitation and Compensation Insurance Act 1992;
  • (l) family status, which means:
  • (i) having the responsibility for parttime care or fulltime care of children or other dependants; or
  • (ii) having no responsibility for the care of children or other dependants; or
  • (iii) being married to, or being in a relationship in the nature of a marriage with, a particular person; or
  • (iv) being a relative of a particular person;
  • (m) sexual orientation, which means a heterosexual, homosexual, lesbian, or bisexual orientation.

(2) Each of the grounds specified in subsection (1) of this section is a prohibited ground of discrimination, for the purposes of this Act, if:

  • (a) it pertains to a person or to a relative or associate of a person; and
  • (b) it either:
  • (i) currently exists or has in the past existed; or
  • (ii) is suspected or assumed or believed to exist or to have existed by the person alleged to have discriminated.

Discrimination in employment matters

Section 22. Employment. (1) Where an applicant for employment or an employee is qualified for work of any description, it shall be unlawful for an employer, or any person acting or purporting to act on behalf of an employer:

  • (a) to refuse or omit to employ the applicant on work of that description which is available; or
  • (b) to offer or afford the applicant or the employee less favourable terms of employment, conditions of work, superannuation or other fringe benefits, and opportunities for training, promotion, and transfer than are made available to applicants or employees of the same or substantially similar capabilities employed in the same or substantially similar circumstances on work of that description; or
  • (c) to terminate the employment of the employee, or subject the employee to any detriment, in circumstances in which the employment of other employees employed on work of that description would not be terminated, or in which other employees employed on work of that description would not be subjected to such detriment; or
  • (d) to retire the employee, or to require or cause the employee to retire or resign (applies to all (a), (b), (c) and (d),

by reason of any of the prohibited grounds of discrimination.

(2) It shall be unlawful for any person concerned with procuring employment for other persons or procuring employees for any employer to treat any person seeking employment differently from other persons in the same or substantially similar circumstances by reason of any of the prohibited grounds of discrimination.

Section 23. Particulars of applicants for employment. It shall be unlawful for any person to use or circulate any form of application for employment or to make any inquiry of or about any applicant for employment which indicates, or could reasonably be understood as indicating, an intention to commit a breach of section 22 of this Act.

Exceptions in relation to employment matters

Section 24. Exception in relation to crews of ships and aircraft. Nothing in section 22 of this Act shall apply to the employment or an application for employment of a person on a ship or aircraft, not being a New Zealand ship or aircraft, if the person employed or seeking employment was engaged or applied for it outside New Zealand.

Section 25. Exception in relation to work involving national security. (1) Nothing in section 22 of this Act shall apply to any restrictions on the employment of any person on work involving the national security of New Zealand:

  • (a) by reference to his or her:
  • (i) religious or ethical belief; or
  • (ii) political opinion; or
  • (iii) disability, within the meaning of section 21(1)(h)(iii) or section 21(1)(h)(iv) of this Act, or
  • (iv) family status, within the meaning of section 21(1)(l)(iii) or section 21(1)(l)(iv) of this Act; or
  • (v) national origin; or
  • (b) by reference to the national origin of any relative of that person.

(2) It shall not be a breach of section 22 of this Act to decline to employ a person under the age of 20 years on work involving the national security of New Zealand where that work requires a secret or top secret security clearance.

Section 26. Exceptions in relation to work performed outside New Zealand. Nothing in section 22 of this Act shall prevent different treatment based on sex, religious or ethical belief, or age if the duties of the position in respect of which that treatment is accorded:

  • (a) are to be performed wholly or mainly outside New Zealand; and
  • (b) are such that, because of the laws, customs, or practices of the country in which those duties are to be performed, they are ordinarily carried out only by a person who is of a particular sex or religious or ethical belief, or who is in a particular age group.

Section 27. Exceptions in relation to authenticity and privacy. (1) Nothing in section 22 of this Act shall prevent different treatment based on sex or age where, for reasons of authenticity, being of a particular sex or age is a genuine occupational qualification for the position or employment.

(2) Nothing in section 22 of this Act shall prevent different treatment based on sex, religious or ethical belief, disability, age, political opinion, or sexual orientation where the position is one of domestic employment in a private household.

(3) Nothing in section 22 of this Act shall prevent different treatment based on sex where:

  • (a) the position needs to be held by one sex to preserve reasonable standards of privacy; or
  • (b) the nature or location of the employment makes it impracticable for the employee to live elsewhere than in premises provided by the employer, and:
  • (i) the only premises available (being premises in which more than one employee is required to sleep) are not equipped with separate sleeping accommodation for each sex; and
  • (ii) it is not reasonable to expect the employer to equip those premises with separate accommodation, or to provide separate premises, for each sex.

(
4) Nothing in section 22 of this Act shall prevent different treatment based on sex, race, ethnic or national origins, or sexual orientation where the position is that of a counsellor on highly personal matters such as sexual matters or the prevention of violence.

(5) Where, as a term or condition of employment, a position ordinarily obliges or qualifies the holder of that position to live in premises provided by the employer, the employer does not commit a breach of section 22 of this Act by omitting to apply that term or condition in respect of employees of a particular sex or marital status if in all the circumstances it is not reasonably practicable for the employer to do so.

Section 28. Exceptions for purposes of religion. (1) Nothing in section 22 of this Act shall prevent different treatment based on sex where the position is for the purposes of an organized religion and is limited to one sex so as to comply with the doctrines or rules or established customs of the religion.

(2) Nothing in section 22 of this Act shall prevent different treatment based on religious or ethical belief where:

  • (a) that treatment is accorded under section 65 of the Private Schools Conditional Integration Act 1975; or
  • (b) the sole or principal duties of the position (not being a position to which section 65 of the Private Schools Conditional Integration Act 1975 applies):
  • (i) are, or are substantially the same as, those of a clergyman, priest, pastor, official, or teacher among adherents of that belief or otherwise involve the propagation of that belief; or
  • (ii) are those of a teacher in a private school; or
  • (iii) consist of acting as a social worker on behalf of an organisation whose members comprise solely or principally adherents of that belief.

(3) Where a religious or ethical belief requires its adherents to follow a particular practice, an employer must accommodate the practice so long as any adjustment of the employer’s activities required to accommodate the practice does not unreasonably disrupt the employer’s activities.

Section 29. Further exceptions in relation to disability. (1) Nothing in section 22 of this Act shall prevent different treatment based on disability where:

  • (a) the position is such that the person could perform the duties of the position satisfactorily only with the aid of special services or facilities and it is not reasonable to expect the employer to provide those services or facilities; or
  • (b) the environment in which the duties of the position are to be performed or the nature of those duties, or of some of them, is such that the person could perform those duties only with a risk of harm to that person or to others, including the risk of infecting others with an illness, and it is not reasonable to take that risk.

(2) Nothing in subsection (1)(b) of this section shall apply if the employer could, without unreasonable disruption, take reasonable measures to reduce the risk to a normal level.

(3) Nothing in section 22 of this Act shall apply to terms of employment or conditions of work that are set or varied after taking into account:

  • (a) any special limitations that the disability of a person imposes on his or her capacity to carry out the work; and
  • (b) any special services or facilities that are provided to enable or facilitate the carrying out of the work.

Section 30. Further exceptions in relation to age. (1) Nothing in section 22(1)(a) or section 22(1)(d) of this Act shall apply in relation to any position or employment where being of a particular age or in a particular age group is a genuine occupational qualification for that position or employment, whether for reasons of safety or for any other reason.

(2) Nothing in section 22(1)(b) of this Act shall prevent payment of a person at a lower rate than another person employed in the same or substantially similar circumstances where the lower rate is paid on the basis that the first mentioned person has not attained a particular age, not exceeding 20 years of age.

(3) Nothing in section 22(1)(a) of this Act shall prevent preferential treatment based on age accorded to persons who are to be paid in accordance with subsection (2) of this section.

Section 31. Exception in relation to employment of a political nature. Nothing in section 22 of this Act shall prevent different treatment based on political opinion where the position is one as:

  • (a) a political adviser or secretary to a member of Parliament; or
  • (b) a political adviser to a member of a local authority; or
  • (c) a political adviser to a candidate seeking election to the House of Representatives or to a local authority within the meaning of the Local Elections and Polls Act 1976; or
  • (d) a member of the staff of a political party.

Section 32. Exception in relation to family status. Nothing in section 22 of this Act shall prevent restrictions imposed by an employer:

  • (a) on the employment of any person who is married to, or living in a relationship in the nature of marriage with, or who is a relative of, another employee if:
  • (i) there would be a reporting relationship between them; or
  • (ii) there is a risk of collusion between them to the detriment of the employer; or
  • (b) on the employment of any person who is married to, or living in a relationship in the nature of marriage with, or who is a relative of, an employee of another employer if there is a risk of collusion between them to the detriment of that person’s employer.

Section 33. Armed Forces. Nothing in section 22 of this Act shall prevent preferential treatment based on sex being given within the armed forces to any member of those forces who has the duty of serving in an active combat role in those forces.

Section 34. Regular Forces and Police. (1) Nothing in section 22(1)(c) or section 22(1)(d) of this Act shall prevent the Chief of Defence Force from instituting, under section 57A of the Defence Act 1990, the discharge or release of a member of the regular forces.

(2) Nothing in section 22(1)(c) or section 22(1)(d) of this Act shall prevent the Commissioner of Police from instituting under section 5A of the Police Act 1958, the removal of a member of the Police.

Section 35. General qualification on exceptions. No employer shall be entitled, by virtue of any of the exceptions in this Part of this Act, to accord to any person in respect of any position different treatment based on a prohibited ground of discrimination even though some of the duties of that position would fall within any of those exceptions if, with some adjustment of the activities of the employer (not being an adjustment involving unreasonable disruption of the activities of the employer), some other employee could carry out those particular duties.

Discrimination in partnerships

Section 36. Partnerships. (1) It shall be unlawful for a firm, or for persons jointly promoting the formation of a firm:

  • (a) to refuse or to omit to offer a person admission to the firm as a partner; or
  • (b) to offer or afford a person less favourable terms and conditions as a partner than are made available to other members or prospective members of the firm,

by reason of any of the prohibited grounds of discrimination.

(2) It shall be unlawful for a firm:

  • (a) to deny any partner increased status in the firm or an increased share in the capital or profits of the firm; or
  • (b) to expel any partner from the firm or to subject any partner to any other detriment,

by reason of any of the prohibited grounds of discrimination.

  • (3) Nothing in subsection (1) or subsection (2) of this section shall prevent the fixing of reasonable terms and conditions in relation to a partner or prospective partner who, by reason of disability or age:
  • (a) has a restricted capacity to participate or to continue to participate in the partnership; or
  • (b) requires special conditions if he or she is to participate or to continue to participate in the partnership.

Discrimination by industrial and professional associations, qualifying bodies, and vocational training bodies

Section 37. Organisations of employees or employers and professional and trade associations. (1) It shall be unlawful for an organisation to which this section applies, or for any person acting or purporting to act on behalf of any such organisation:

  • (a) to refuse or omit to accept any person for membership; or
  • (b) to offer any person less favourable terms of membership and less favourable access to any benefits, facilities, or services, including the right to stand for election and hold office in the organisation, than would otherwise be made available; or
  • (c) to deprive a person of membership, or suspend him or her, in circumstances in which other persons would not be deprived of membership or suspended,

by reason of any of the prohibited grounds of discrimination.

(2) Nothing in this section shall prevent an organisation to which this section applies from charging different fees to persons in different age groups.

(3) This section applies to an organisation of employees, an organisation of employers, or any other organisation that exists for the purposes of members who carry on a particular profession, trade, or calling.

Section 38. Qualifying bodies. (1) It shall be unlawful for an authority or body empowered to confer an approval, authorisation, or qualification that is needed for, or facilitates, engagement in a profession, trade, or calling, or any person acting or purporting to act on behalf of any such authority or body:

  • (a) to refuse or omit to confer that approval, authorisation, or qualification on a person; or
  • (b) to confer that approval, authorisation, or qualification on less favourable terms and conditions than would otherwise be made available; or
  • (c) to withdraw that approval, authorisation, or qualification or vary the terms on which it is held, in circumstances in which it would not otherwise be withdrawn or varied,

by reason of any of the prohibited grounds of discrimination.

(2) For the purposes of this section “confer” includes renew or extend.

Section 39. Exceptions in relation to qualifying bodies. (1) Nothing in section 38 of this Act shall apply where the authorisation or qualification is needed for, or facilitates engagement in, a profession or calling for the purposes of an organised religion and is limited to one sex or to persons of that religious belief so as to comply with the doctrines or rules or established customs of that religion.

(2) Nothing in section 38 of this Act shall prevent different treatment based on disability where:

  • (a) the person seeking or holding the approval, authorisation, or qualification is not, by reason of that person’s disability, able to perform the duties required of a person who holds the approval, authorisation, or qualification; or
  • (b) the environment in which the duties required of a person who holds the approval, authorisation, or qualification are to be performed or the nature of those duties, or of some of them, are such that, if that approval, authorisation, or qualification were granted to or retained by the person with a disability, there would be a risk of harm to that person or others, including the risk of infecting others with an illness, and it is not reasonable to take that risk; or
  • (c) conditions placed on the granting of the approval, authorisation, or qualification to any person or on the retention of the approval, authorisation, or qualification by any person are reasonably related to the disability of that person.

(3) Nothing in section 38 of this Act shall apply where:

  • (a) the authority or body imposes a reasonable and appropriate minimum age under which the approval, authorisation, or qualification will not be conferred; or
  • (b) the authority or body imposes reasonable and appropriate terms and conditions on the grant or retention of the approval, authorisation, or qualification by reason of the age of the person seeking or holding it.

Section 40. Vocational training bodies. It shall be unlawful for any organisation or association which has as its function or one of its principal functions the provision of training, or facilities or opportunities for training (including facilities or opportunities by way of financial grants), that would help to fit a person for any employment, or for any person acting or purporting to act on behalf of any such organisation or association:

  • (a) to refuse or omit to provide training, or facilities or opportunities for training; or
  • (b) to provide training, or facilities or opportunities for training, on less favourable terms and conditions than would otherwise be made available; or
  • (c) to terminate training, or facilities or opportunities for training,

by reason of any of the prohibited grounds of discrimination.

Section 41. Exceptions in relation to vocational training bodies. (1) Nothing in section 40 of this Act shall prevent an organisation or association from affording persons preferential access to facilities for training that would help to fit them for employment where it appears to that organisation or association that those persons are in special need of training by reason of the period for which they have not been engaged in regular fulltime employment.

(2) Subject to subsection (3) of this section, nothing in section 40 of this Act shall apply where a person’s disability is such that there would be a risk of harm to that person or to others, including the risk of infecting others with an illness, if that person were to be provided with training, or facilities or opportunities for training, and it is not reasonable to take that risk.

(3) Nothing in subsection (2) of this section shall apply if the organisation or association providing training, or facilities or opportunities for training, could, without unreasonable disruption, take reasonable measures to reduce the risk to a normal level.

(4) Nothing in section 40 of this Act shall prevent an organisation or association from providing training, or facilities or opportunities for training (including, facilities or opportunities by way of financial grants), only for persons above a particular age or in a particular age group.

(5) Nothing in section 40 of this Act shall prevent the making of financial grants by an organisation or association only to persons above a particular age or in a particular age group.

(6) Nothing in section 40 of this Act shall prevent an organisation or association from charging different fees to persons in different age groups.

Discrimination in access to places, vehicles and facilities

Section 42. Access by the public to places, vehicles and facilities. (1) It shall be unlawful for any person:

  • (a) to refuse to allow any other person access to or use of any place or vehicle which members of the public are entitled or allowed to enter or use; or
  • (b) to refuse any other person the use of any facilities in that place or vehicle which are available to members of the public; or
  • (c) to require any other person to leave or cease to use that place or vehicle or those facilities,

by reason of any of the prohibited grounds of discrimination.

(2) In this section the term “vehicle” includes, a vessel, an aircraft, or a hovercraft.

Section 43. Exceptions in relation to access by the public to places, vehicles, and facilities. (1) Section 42 of this Act shall not prevent the maintenance of separate facilities for each sex on the ground of public decency or public safety.

(2) Nothing in section 42 of this Act requires any person to provide for any person, by reason of the disability of that person, special services or special facilities to enable any such person to gain access to or use any place or vehicle when it would not be reasonable to require the provision of such special services or facilities.

(3) Nothing in subsection (2) of this section limits the provisions of section 25 of the Disabled Persons Community Welfare Act 1975.

(4) Subject to subsection (5) of this section, nothing in section 42 of this Act shall apply where the disability of a person is such that there would be a risk of harm to that person or to others, including the risk of infecting others with an illness, if that person were to have access to or use of any place or vehicle and it is not reasonable to take that risk.

(5) Subsection (4) of this section shall not apply if the person in charge of the place, vehicle, or facility could, without unreasonable disruption, take reasonable measures to reduce the risk to a normal level.

Sections 44-52. [Discrimination in provision of goods and services.]

Discrimination in provision of land, housing and other accommodation

Section 53. Land, housing and other accommodation. (1) It shall be unlawful for any person, on his or her own behalf or on behalf or purported behalf of any principal:

  • (a) to refuse or fail to dispose of any estate or interest in land or any residential or business accommodation to any other person; or
  • (b) to dispose of such an estate or interest or such accommodation to any person on less favourable terms and conditions than are or would be offered to other persons; or
  • (c) to treat any person who is seeking to acquire or has acquired such an estate or interest or such accommodation differently from other persons in the same circumstances; or
  • (d) to deny any person, directly or indirectly, the right to occupy any land or any residential or business accommodation; or
  • (e) to terminate any estate or interest in land or the right of any person to occupy any land or any residential or business accommodation,

by reason of any of the prohibited grounds of discrimination.

(2) It shall be unlawful for any person, on his or her own behalf or on behalf or purported behalf of any principal, to impose or seek to impose on any other person any term or condition which limits, by reference to any of the prohibited grounds of discrimination, the persons or class of persons who may be the licensees or invitees of the occupier of any land or any residential or business accommodation.

Section 54. Exception in relation to shared residential accommodation. Nothing in section 53 of this Act shall apply to residential accommodation which is to be shared with the person disposing of the accommodation, or on whose behalf it is disposed of.

Section 55. Exception in relation to hostels, institutions, etc. Nothing in section 53 of this Act shall apply to accommodation in any hostel or in any establishment (such as a hospital, club, school, university, religious institution, or retirement village), or in any part of a hostel or any such establishment, where accommodation is provided only for persons of the same sex, marital status, or religious or ethical belief, or for persons with a particular disability, or for persons in a particular age group.

Section 56. Further exception in relation to disability. (1) Subject to subsection (2) of this section, nothing in section 53 of this Act shall apply, in relation to any accommodation, if the disability of the person is such that there would be a risk of harm to that person or others, including the risk of infecting others with an illness, if that person were to live in that accommodation and it is not reasonable to take that risk.

(2) Subsection (1) of this section shall not apply if the person in charge of the accommodation could, without unreasonable disruption, take reasonable measures to reduce the risk to a normal level.

Discrimination in access to educational establishments

Section 57. Educational establishments. (1) It shall be unlawful for an educational establishment, or the authority responsible for the control of an educational establishment, or any person concerned in the management of an educational establishment or in teaching at an educational establishment:

  • (a) to refuse or fail to admit a person as a pupil or student; or
  • (b) to admit a person as a pupil or a student on less favourable terms and conditions than would otherwise be made available; or
  • (c) to deny or restrict access to any benefits or services provided by the establishment; or
  • (d) to exclude a person as a pupil or a student or subject him or her to any other detriment,

by reason of any of the prohibited grounds of discrimination.

(2) In this section “educational establishment” includes an establishment offering any form of training or instruction and an educational establishment under the control of an organisation or association referred to in section 40 of this Act.

Section 58. Exceptions in relation to establishments for particular groups. (1) An educational establishment maintained wholly or principally for students of one sex, race, or religious belief, or for students with a particular disability, or for students in a particular age group, or the authority responsible for the control of any such establishment, does not commit a breach of section 57 of this Act by refusing to admit students of a different sex, race, or religious belief, or students not having that disability or not being in that age group.

(2) Nothing in section 57 of this Act shall prevent an organisation or association from affording persons preferential access to facilities for training that would help to fit them for employment where it appears to that organisation or association that those persons are in special need of training by reason of the period for which they have not been engaged in regular fulltime employment.

(3) Nothing in section 57 of this Act shall prevent an organisation or association from providing training, or facilities or opportunities for training (including facilities or opportunities by way of financial grants), only for persons above a particular age or in a particular age group.

(4) Nothing in section 57 of this Act shall prevent the making of financial grants by an organisation or association only to persons above a particular age or in a particular age group.

(5) Nothing in section 57 of this Act shall prevent an organisation or association from charging different fees to persons in different age groups.

Section 59. Exception in relation to courses and counselling. Nothing in section 57 of this Act shall prevent the holding or provision, at any educational establishment, of courses or counselling restricted to persons of a particular sex, race, ethnic, or national origin, or sexual orientation, where highly personal matters, such as sexual matters or the prevention of violence, are involved.

Section 60. Further exceptions in relation to disability. (1) Nothing in section 57 of this Act makes it unlawful to refuse admission to an educational establishment to a person whose disability is such that that person requires special services or facilities that in the circumstances cannot reasonably be made available (being services or facilities that are required to enable the person to participate in the educational programme of that establishment or to enable the person to derive substantial benefits from that programme).

(2) Subject to subsection (3) of this section, nothing in section 57 of this Act shall apply where the person’s disability is such that there would be a risk of harm to that person or to others, including the risk of infecting others with an illness, if that person were to be admitted to an educational establishment and it is not reasonable to take that risk.

(3) Nothing in subsection (2) of this section shall apply if the person in charge of the educational establishment could, without unreasonable disruption, take reasonable measures to reduce the risk to a normal level.

Other forms of discrimination

Section 61. Racial disharmony. (1) It shall be unlawful for any person:

  • (a) to publish or distribute written matter which is threatening, abusive, or insulting, or to broadcast by means of radio or television words which are threatening, abusive, or insulting; or
  • (b) to use in any public place as defined in section 2(1) of the Summary Offences Act 1981, or within the hearing of persons in any such public place, or at any meeting to which the public are invited or have access, words which are threatening, abusive, or insulting; or
  • (c) to use in any place words which are threatening, abusive, or insulting if the person using the words knew or ought to have known that the words were reasonably likely to be published in a newspaper, magazine, or periodical or broadcast by means of radio or television,

being matter or words likely to excite hostility against or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.

(2) It shall not be a breach of subsection (1) of this section to publish in a newspaper, magazine, or periodical or broadcast by means of radio or television a report relating to the publication or distribution of matter by any person or the broadcast or use of words by any person, if the report of the matter or words accurately conveys the intention of the person who published or distributed the matter or broadcast or used the words.

(3) For the purposes of this section:

  • “Newspaper” means a paper containing public news or observations on public news, or consisting wholly or mainly of advertisements, being a newspaper that is published periodically at intervals not exceeding three months;
  • “Publishes” or “distributes” means publishes or distributes to the public at large or to any member or members of the public;
  • “Written matter” includes any writing, sign, visible representation, or sound recording.

Section 62. Sexual harassment. (1) It shall be unlawful for any person (in the course of that person’s involvement in any of the areas to which this subsection is applied by subsection (3) of this section) to make a request of any other person for sexual intercourse, sexual contact, or other form of sexual activity which contains an implied or overt promise of preferential treatment or an implied or overt threat of detrimental treatment.

(2) It shall be unlawful for any person (in the course of that person’s involvement in any of the areas to which this subsection is applied by subsection (3) of this section) by the use of language (whether written or spoken) of a sexual nature, or of visual material of a sexual nature, or by physical behaviour of a sexual nature, to subject any other person to behaviour that:

  • (a) is unwelcome or offensive to that person (whether or not that is conveyed to the first mentioned person); and
  • (b) is either repeated, or of such a significant nature, that it has a detrimental effect on that person in respect of any of the areas to which this subsection is applied by subsection (3) of this section.

(3) The areas to which subsections (1) and (2) of this section apply are:

  • (a) the making of an application for employment;
  • (b) employment, which term includes unpaid work;
  • (c) participation in, or the making of an application for participation in, a partnership;
  • (d) membership, or the making of an application for membership, of an industrial union or professional or trade association;
  • (e) access to any approval, authorisation, or qualification;
  • (f) vocational training, or the making of an application for vocational training;
  • (g) access to places, vehicles, and facilities;
  • (h) access to goods and services;
  • (i) access to land, housing, or other accommodation;
  • (j) education.

(4) Where a person complains of sexual harassment, no account shall be taken of any evidence of the person’s sexual experience or reputation.

Section 63. Racial harassment. (1) It shall be unlawful for any person to use language (whether written or spoken), or visual material, or physical behaviour that:

  • (a) expresses hostility against, or brings into contempt or ridicule, any other person on the ground of the colour, race, or ethnic or national origins of that person; and
  • (b) is hurtful or offensive to that other person (whether or not that is conveyed to the first mentioned person); and
  • (c) Is either repeated, or of such a significant nature, that it has a detrimental effect on that other person in respect of any of the areas to which this subsection is applied by subsection (2) of this section.

(2) The areas to which subsection (1) of this section applies are:

  • (a) the making of an application for employment;
  • (b) employment, which term includes unpaid work:
  • (c) participation in, or the making of an application for participation in, a partnership:
  • (d) membership, or the making of an application for membership, of an industrial union or professional or trade association;
  • (e) access to any approval, authorisation, or qualification;
  • (f) vocational training, or the making of an application for vocational training;
  • (g) access to places, vehicles and facilities;
  • (h) access to goods and services;
  • (i) access to land, housing, or other accommodation;
  • (j) education.

Section 64. Choice of procedures. Where the circumstances giving rise to a complaint of sexual harassment or racial harassment under this Act are such that an employee would also be entitled to bring personal grievance proceedings under the Employment Contracts Act 1991, the employee may take one but not both of the following steps:

  • (a) the employee may make, in relation to those circumstances, a complaint under this Act; or
  • (b) the employee may invoke, in relation to those circumstances, the procedures applicable under the Employment Contracts Act 1991 in relation to personal grievances under the relevant employment contract.

Section 65. Indirect discrimination. Where any conduct, practice, requirement, or condition that is not apparently in contravention of any provision of this Part of this Act has the effect of treating a person or group of persons differently on one of the prohibited grounds of discrimination in a situation where such treatment would be unlawful under any provision of this Part of this Act other than this section, that conduct, practice, condition, or requirement shall be unlawful under that provision unless the person whose conduct or practice is in issue, or who imposes the condition or requirement, establishes good reason for it.

Section 66. Victimisation. (1) It shall be unlawful for any person to treat or to threaten to treat any other person less favourably than he or she would treat other persons in the same or substantially similar circumstances:

  • (a) on the ground that that person, or any relative or associate of that person:
  • (i) intends to make use of his or her rights under this Act; or
  • (ii) has made use of his or her rights, or promoted the rights of some other person, under this Act; or
  • (iii) has given information or evidence in relation to any complaint, investigation, or proceeding under this Act; or
  • (iv) has declined to do an act that would contravene this Act; or
  • (v) has otherwise done anything under or by reference to this Act; or
  • (b) on the ground that he or she knows that that person, or any relative or associate of that person, intends to do any of the things mentioned in subparagraphs (i) to (v) of paragraph (a) of this subsection or that he or she suspects that that person, or any relative or associate of that person, has done, or intends to do, any of those things.

(2) Subsection (1) of this section shall not apply where a person is treated less favourably because he or she has knowingly made a false allegation or otherwise acted in bad faith.

Section 67. Advertisements. (1) It shall be unlawful for any person to publish or display, or to cause or allow to be published or displayed, any advertisement or notice which indicates, or could reasonably be understood as indicating, an intention to commit a breach of any of the provisions of this Part of this Act.

(2) For the purposes of subsection (1) of this section, use of a job description with a gender connotation (such as “postman” or “stewardess”) shall be taken to indicate an intention to discriminate, unless the advertisement contains an indication to the contrary.

Section 68. Liability of employer and principals. (1) Subject to subsection (3) of this section, anything done or omitted by a person as the employee of another person shall, for the purposes of this Part of this Act, be treated as done or omitted by that other person as well as by the firstmentioned person, whether or not it was done with that other person’s knowledge or approval.

(2) Anything done or omitted by a person as the agent of another person shall, for the purposes of this Part of this Act, be treated as done or omitted by that other person as well as by the first mentioned person, unless it is done or omitted without that other person’s express or implied authority, precedent or subsequent.

(3) In proceedings under this Act against any person in respect of an act alleged to have been done by an employee of that person, it shall be a defence for that person to prove that he or she took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing as an employee of that person acts of that description.

Section 69. Further provision in relation to sexual or racial harassment in employment. (1) Where:

  • (a) a request of the kind described in section 62(1) of this Act is made to an employee; or
  • (b) an employee is subjected to behaviour of the kind described in section 62(2) or section 63 of this Act,

by a person who is a customer or a client of the employee’s employer, the employee may make a complaint in writing about that request or behaviour to the employee’s employer.

(2) the employer, on receiving a complaint under subsection (1) of this section:

  • (a) shall inquire into the facts; and
  • (b) if satisfied that such a request was made or that such behaviour took place,

shall take whatever steps are practicable to prevent any repetition of such a request or of such behaviour.

(3) Where any person, being a person in relation to whom an employee has made a complaint under subsection (1) of this section:

  • (a) either:
  • (i) makes to that employee after the complaint a request of the kind described in section 62(1) of this Act; or
  • (ii) subjects that employee after the complaint to behaviour of the kind described in section 62(2) or section 63 of this Act; and
  • (b) the employer of that employee has not taken whatever steps are practicable to prevent the repetition of such a request or such behaviour,

that employer shall be deemed to have committed a breach of this Act and the provisions of this Act shall apply accordingly.

Special provisions relating to superannuation schemes

Section 70. Superannuation schemes. (1) Subject to subsection (3) of this section, nothing in section 22 or section 44 of this Act relating to different treatment on the ground of age or disability shall apply to any condition in, or requirement of, a superannuation scheme in existence at the commencement of this Act in relation to a person who was a member of the scheme at the commencement of this Act or who becomes a member of the scheme before 1 January 1995.

(2) It shall continue to be lawful for the provisions of a superannuation scheme to provide:

  • (a) different benefits for members of each sex on the basis of the same contributions; or
  • (b) the same benefits for members of each sex on the basis of different contributions,
  • if the different treatment:
  • (c) is based on actuarial or statistical data, upon which it is reasonable to rely, relating to life expectancy, accidents, or sickness; and
  • (d) is reasonable having regard to the applicability of the data, and of any other relevant factors, to the particular circumstances.

(3) It shall continue to be unlawful to require an applicant for membership of a superannuation scheme to have attained a minimum age.

(4) Nothing in section 22 or section 44 of this Act shall prevent the provisions of a superannuation scheme from:

  • (a) providing or requiring different contributions for members; or
  • (b) providing benefits for members that differ in nature or amount,

by reason of the disability or age of those members, if the different treatment:

  • (c) is based on:
  • (i) actuarial or statistical data, upon which it is reasonable to rely, relating to lifeexpectancy, accidents, or sickness; or
  • (ii) where no such data is available in respect of persons with a disability, reputable medical or actuarial advice or opinion, upon which it is reasonable to rely, whether or not contained in an underwriting manual; and
  • (d) is reasonable having regard to the applicability of the data or advice or opinion, and of any other relevant factors, to the particular circumstances.

(5) Nothing in section 22 or section 44 of this Act shall prevent the provisions of a superannuation scheme, or the trustees of the scheme, from:

  • (a) requiring an applicant for membership of the scheme to be under a specified maximum age; or
  • (b) permitting a member of the scheme to elect to make increased or reduced contributions to the scheme either temporarily or indefinitely; or
  • (c) specifying an age of eligibility for each type of benefit provided for members of the scheme; or
  • (d) subject to section 9c of the Superannuation Schemes Act 1989, requiring persons who become members of the scheme on or after 1 January 1995 to leave the scheme on reaching the age at which persons of that age ordinarily qualify for national superannuation under section 3 of the Social Welfare (Transitional Provisions) Act 1990; or
  • (e) providing benefits on the death or disability of members of the scheme that decrease in value as the age of members increases; or
  • (f) providing benefits for members of the scheme that differ in nature and amount according to the member’s period of membership (including any period deemed by the trustees of the scheme to be membership) of the scheme and of any scheme replaced by that scheme, and, in the case of a superannuation scheme provided by an employer, of any scheme to which the employer has paid contributions on behalf of the employee.

(6) In assessing for the purposes of this section whether it is reasonable to rely on any data or advice or opinion and whether different treatment is reasonable, the Commission or the Complaints Division may:

  • (a) require justification to be provided for reliance on the data or advice or opinion and for the different treatment; and
  • (b) request the views of the Government Actuary on the justification for the reliance and for the different treatment.

Section 71. Reports on superannuation schemes. The Commission shall from time to time, after consultation with the Government Actuary, report to the Minister on whether discrimination on the prohibited grounds has been eliminated from superannuation schemes.

Section 72. Power to vary trust deeds. Notwithstanding any Act or rule of law or the provisions of the instrument or conditions governing any superannuation scheme, the trustees of the scheme may make such amendments to that instrument or those conditions as are necessary or desirable to give effect to the provisions of sections 22, 44, and 70 of this Act.

Other matters

Section 73. Measures to ensure equality. (1) Anything done or omitted which would otherwise constitute a breach of any of the provisions of this Part of this Act shall not constitute such a breach if:

  • (a) 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 by virtue of this Part of this Act; and
  • (b) those persons or groups need or may reasonably be supposed to need assistance or advancement in order to achieve an equal place with other members of the community.

(2) Nothing in this part of this Act:

  • (a) limits the power of the Crown to establish or arrange work or training schemes or employment assistance measures, eligibility for which may, in whole or in part, be determined by a person’s age, employment status, or family status; or
  • (b) makes it unlawful for any person to recruit or refer any other person who is of a particular age or of a particular employment status or of a particular family status for any work or training scheme or employment assistance measure that is established or arranged by the Crown, the eligibility for which may, in whole or in part, be determined by a person’s age, employment status, or family status.

Section 74. Measures relating to pregnancy, childbirth, or family responsibilities. For the avoidance of doubt it is hereby declared that preferential treatment granted by reason of:

  • (a) a woman’s pregnancy or childbirth; or
  • (b) a person’s responsibility for part-time care or fulltime care of children or other dependants

shall not constitute a breach of this part of this Act.

 


PART III. [COMPLAINTS ABOUT UNLAWFUL DISCRIMINATION.]

Sections 7592.

PART IV. [COMPLAINTS REVIEW TRIBUNAL.]

Sections 93126.

PART V. [POWERS IN RELATION TO INVESTIGATIONS.]

Sections 127130.

PART VI. [INCITING RACIAL DISHARMONY.]

Sections 131132.

 


PART VII. MISCELLANEOUS PROVISIONS

Sections 133-148. [Miscellaneous and transitional provisions.]

Savings

Section 149. Special provisions in relation to written employment contracts in force on 1 April 1992. (1) This section applies to every employment contract (whether a collective employment contract or an individual employment contract) that:

  • (a) is in writing; and
  • (b) was in force on 1 April 1992; and
  • (c) specifies an age at which an employee is required to retire.

(2) Where the parties to an employment contract to which this section applies agree in writing, at any time on or after 1 April 1992, to confirm or vary the age specified in the employment contract, the age, as so confirmed or varied, shall have effect notwithstanding section 22 of this Act.

(3) Where the parties to an employment contract to which this section applies have not agreed in writing to confirm or vary the age specified in the employment contract, section 22 of this Act shall apply in relation to that employment contract.

(4) Where, as at 1 April 1992, the age at which an employer is required to retire, under a term of that employee’s employment contract, was specified only in a document that sets out the employer’s policy on the retirement ages of the employer’s employees or any of them, this section shall not apply in relation to that employee’s employment contract.

Sections 150153. [Charitable instruments; Acts and enactments not affected; expiry of section 151; other savings.] [Schedules 1, 2 and 3. Provisions applying in respect of Commission and Conciliation, amendments and repeals.]