Completion Of Consistency 2000
Monday, 13 August 2001
Associate Minister of Justice Margaret Wilson today introduced the new Human Rights Amendment Bill.
“This legislation is the long awaited outcome of the Consistency 2000 Audit Project that was cancelled under the previous government but was revived and completed under this government”.
- Introduces a new Human Rights Commission, which will be more representative of New Zealand society. It will comprise a full-time Chief Human Rights Commissioner and Race Relations Commissioner, plus five part-time Commissioners.
The Commissioners will have a new focus on strategic leadership, advocacy and education.
- Introduces a new dispute resolution process to provide fairer and faster problem solving services.
There are no changes to human rights for the private sector. Changes only relate to government activity which includes policies, practices regulations and legislation.
Under the Bill the government will be liable for discrimination in the public sector.
All discrimination by the government will only be justified if it can be “demonstrably justified in a free and democratic society.”
Individuals will be able to take complaints about discrimination against the government policies and practices and receive the full range of remedies under the Human Rights Act. These include damages, restraining orders, declarations and any relief the court see fit.
Where discrimination is required by legislation the Court may grant a declaration of inconsistency which must be brought to the attention of the House along with the Executive’s response to the declaration.
The Bill amends a number of other Acts to align them with the Government’s human rights policy.
The legislation will receive its first reading later this week and be referred to the Justice and Electoral Select Committee where public submissions will be heard. It is important that the new law be in place before the end of the year to address the expiry of the current government exemption in the Human Rights Act.
“The Government is committed to the development of a robust and sustainable human rights culture in New Zealand. The introduction of the new Human Rights Amendment Bill is a first significant step towards achieving this goal".
HUMAN RIGHTS AMENDMENT BILL BACKGROUND
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.
- 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.