10.4.5 Human Rights

 

1. The council’s decisions are subject to the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 [1]. Council decision-makers need to take into account the requirements of human rights legislation when making decisions.

2. The Bill of Rights Act

   • The Bill of Rights Act affirms a number of rights and freedoms existing in New Zealand. The rights affirmed by the Bill of Rights Act include:  

     i) the rights to the freedoms of expression, peaceful assembly, movement and association [2]
     ii) the right to be secure against unreasonable search or seizure [3]
     iii) the right to freedom from discrimination (discussed in more detail below in relation to the Human Rights Act) [4].  

   • The Bill of Rights applies to all acts or omissions by the council [5].

   • Council decisions should not limit the rights and freedoms affirmed in the Bill of Rights Act unless the limitation is reasonable, prescribed by law and can be demonstrably justified in a free and democratic society [6].

   • In practice, the council imposes a range of justified limitations on rights contained in the Bill of Rights Act, e.g. managing nuisances and public spaces requires the council to limit the freedoms of expression, peaceful assembly and movement.

   • It is important any limits on rights affirmed in the Bill of Rights are properly considered and justified. The process of justification can be technical and may require legal advice.  However, the following broad principles apply [7].  

     i) The council should identify when a decision impinges on an affirmed right or freedom.
     ii) If it does, the council should consider if the objective obtained by the decision is proportionate to the limitation on the rights, including whether the objective is sufficiently important to justify infringing the right in question or if there are other, less rights-infringing ways to achieve the same objective.  

3. Human Rights Act and unlawful discrimination

   • The Human Rights Act protects people in New Zealand from discrimination because of certain personal characteristics (known as “prohibited grounds of discrimination” [8]) in a number of areas of life (including public bodies performing public functions).

   • All council decision-makers should ensure their decisions do not unlawfully discriminate against people in a manner that breaches the Human Rights Act.

   • The prohibited grounds of discrimination are sex (including pregnancy and childbirth), marital status, religious or ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status and sexual orientation [9].

   • The council’s decisions must not discriminate against people on a prohibited ground unless this can be demonstrably justified in a free and democratic society (i.e. the test that applies under the Bill of Rights Act, discussed above) [10].

   • This requirement is relevant to all council decisions, including [11]:  

     i) decisions about the provision of services
     ii) decisions about council policies
     iii) decisions about employment (there are special provisions in the Human Right Act) [12].

   • In considering whether a decision is discriminatory, decision-makers should assess its intention and effect. It is important to be aware that a decision may indirectly (and impermissibly) discriminate against people on a prohibited ground [13]. Even when a decision does not expressly discriminate against people, it may do so (again, impermissibly) if the effect of the decision is different for different people.

   • The council can take measures that would otherwise be considered discriminatory if they are taken in good faith to assist or advance an individual or group disadvantaged because of unlawful discrimination [14]. This concept is sometimes known as affirmative action.

 

 

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