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University of Otago Law Theses and Dissertations |
Last Updated: 14 April 2024
Justifying Discrimination: The Relationship Between Sections 5 and 19 of the New Zealand Bill of Rights Act
Meredith Walker
October 2023
A dissertation submitted in partial fulfilment of the requirements of the degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare Wānanga o Otāgo
Acknowledgments
To my supervisor, Professor Andrew Geddis, for inspiring my interest in rights law, and for your steady guidance throughout this year.
To Associate Professor Marcelo Rodriguez Ferrere, for your encouragement and willingness to share your knowledge and insights.
To my parents, for your constant support and for always believing in me.
To my flatmates, for sharing this journey with me.
To my friends and family, for cheering me on, and for the many laughs and wonderful memories.
Table of Contents
Introduction
The right to freedom from discrimination is a central feature of modern liberal societies.
It is linked to several fundamental democratic values, including equality, the rule of law and self-determination.1 Although the right therefore commands intuitive support, upon closer examination, its extent and limits are unclear. This problem is evident in the context of the New Zealand Bill of Rights Act 1990 (Bill of Rights), when considering the relationship between the right to freedom from discrimination under s 19, and the allowance for “reasonable limits
... as can be demonstrably justified in a free and democratic society” under s 5.
This dissertation will argue that the “material disadvantage test” adopted in Ministry of Health v Atkinson reflects an overly broad conception of discrimination, which fails to adequately define the scope of the right under s 19, and therefore places too much weight on the s 5 analysis of determining whether a limit on the right can be justified.2 Not only does this misconstrue the proper role for s 5 by effectively requiring it to define the scope of the right itself, but it also increases the risk of courts exceeding their institutional competence by engaging in matters of substantive policy. There is therefore a pressing need for a clarified approach to applying the right to freedom from discrimination in Aotearoa New Zealand. Defining discrimination in an “invidious” sense, similarly to the Canadian model, would be a preferable alternative to continued use of the material disadvantage test.
Chapter I will provide the background to this discussion, by outlining the historical development of the right to freedom from discrimination through the international human rights movement. It will also trace the recognition of the right in New Zealand’s domestic law, and set out the current legislative framework under the Bill of Rights and the Human Rights Act 1993 (HRA).
Chapter II will examine s 19 itself in greater detail. It will discuss the inherent difficulties in defining the concept of discrimination, and how these have been reflected in competing
1 See Sheila McIntyre “The Supreme Court and Section 15: A Thin and Impoverished Notion of Judicial Review” (2006) 31 Queens LJ 731 at 738; and Clare Breen and Margaret Bedggood “The Rights to Equality and Non-Discrimination” in Margaret Bedggood, Kris Gledhill and Ian McIntosh International Human Rights Law in Aotearoa New Zealand (Thomas Reuters, Wellington, 2017) 257 at [7.1].
2 Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456.
approaches to interpreting s 19. It will then consider how the right to freedom from discrimination has been applied by the courts, and examine the current test established in Atkinson. It will conclude that although the Atkinson approach has been generally accepted by subsequent courts, defining discrimination according to the material disadvantage test is problematic, as it trivialises the right and the provides scope for the importation of judges’ personal values.
Chapter III will examine the operation of the justified limits provision under s 5. It will outline the general need for limitations on rights, before considering the application of s 5 in the context of s 19. This will demonstrate that the concerns identified in applying s 19 at the definitional stage are heightened under the s 5 inquiry, particularly in relation to the engagement of judges in substantive policy matters.
Chapter IV will draw these threads together, outlining the problem that the Atkinson test creates through its mischaracterisation of the stages of determining whether a right has been limited, and considering whether that limit can be justified. Although this dissertation does not purport to provide a comprehensive recommendation of a new framework for interpreting s 19, it will argue that adoption of the Canadian invidious approach to defining discrimination would be more in keeping with the proper construction of the respective roles of ss 5 and 19.
I Background
A. Introduction
In order to understand the nature and scope of the right to freedom from discrimination, it is useful to consider the process which led to its emergence as a distinct right. This chapter will begin by briefly tracing the right’s historical development at an international level. It will then describe the progressive recognition of the right in Aotearoa’s domestic legal landscape, and how this led to the current legislative framework that exists under the Bill of Rights and the Human Rights Act 1993 (HRA).
B. International Development of the Right to Freedom from Discrimination
The right to freedom from discrimination has a long history. The origins of “human rights” are highly contested, though their roots can arguably be identified in natural law and the early democratic structures of ancient Greece and Rome.3 The “great liberal revolutions” which produced the English Bill of Rights 1688,4 the United States Bill of Rights,5 and the French Declaration of the Rights of Man and of the Citizen6 were notable in propelling the contemporary human rights movement.7 Such rights instruments made important strides in increasing protection for equality and the rule of law, by giving greater recognition to the rights of “the people” not to be subject to arbitrary and authoritarian governance.8 However, these documents aspired to a relatively narrow conception of equality by current understanding, with many groups in society being overlooked based on their gender, race or class.9 Therefore, while such documents established a limited form of human equality, they also reflected the inherently discriminatory attitudes of the time.
3 Peter Hosking Laws of New Zealand Discrimination (online ed) at [3].
4 Bill of Rights 1688 (Eng) 1 Will & Mar c 2.
5 United States Constitution, amend I–X.
6 Declaration des droits de l’homme et du citoyen (1789).
7 Andrew Geddis “The Philosophical Underpinnings of Human Rights” in Margaret Bedggood, Kris Gledhill and Ian McIntosh International Human Rights Law in Aotearoa New Zealand (Thomas Reuters, Wellington, 2017) at 34.
8 Geddis, above n 7, at 35–36.
9 For instance, the Declaration of Independence 1776 (US) famously asserted: “[w]e hold these truths to be self- evident, that all men are created equal” [emphasis added], and under the US Constitution slaves were only counted as three fifths of a person.
Non-discrimination rights saw a dramatic increase in recognition during the second half of the 20th century, stemming from the establishment of the United Nations (UN) in 1945, and the affirmations made under its founding document, the UN Charter.10 Under Article 1 of the Charter, member states agreed to promote human rights and freedoms “without distinction as to race, sex, language, or religion”.11 This reflected the underlying philosophy of the international human rights movement that all people are owed certain rights and freedoms by simple virtue of their humanity.12 The inclusion of art 1 was particularly necessary given the prejudices which formed the bases for the atrocities committed during the Holocaust, the event which prompted the creation of the UN through the shared determination to prevent such horrors from ever being repeated.13 Over time, a distinct right to be free from discriminatory treatment was drawn out of the affirmation in art 1, which gained considerable traction as the human rights movement progressed.14
The Universal Declaration of Human Rights (UDHR) was another milestone document, providing a comprehensive codification of international human rights to supplement the aspirations set out in the UN Charter.15 It expressly provides for non-discrimination rights under art 7, which affirms that “[a]ll are equal before the law and are entitled without any discrimination to equal protection of the law”.16 The principles of the UDHR were given legal force through the twin treaties adopted by the UN General Assembly in 1966: the International Covenant on Civil and Political Rights (ICCPR)17 and the International Covenant on Social and Economic Rights (ICSER).18 Like the UDHR, both treaties specifically affirm rights related to equality and non-discrimination.19 In addition to these general human rights treaties, the UN adopted several conventions targeting specific forms of discrimination, including the
10 Hosking, above n 3, at [3].
11 Charter of the United Nations 1 UNTS xvi (signed 26 June 1945, entered into force 24 October 1945), art 1.
12 See Geddis, above n 7, at 22.
13 Silvia Cartwright “Preface” in Judy McGregor, Sylvia Bell and Margaret Wilson Human Rights in New Zealand: Emerging Faultlines (Bridget Williams Books, Wellington, 2016) 7 at 7.
14 See generally Clare Breen and Margaret Bedggood “The Rights to Equality and Non-Discrimination” in Margaret Bedggood, Kris Gledhill and Ian McIntosh International Human Rights Law in Aotearoa New Zealand (Thomas Reuters, Wellington, 2017) 257 at 264–275.
15 Universal Declaration of Human Rights GA Res 217A (1948). See Judy McGregor, Sylvia Bell and Margaret Wilson Human Rights in New Zealand: Emerging Faultlines (Bridget Williams Books, Wellington, 2016) at 21. 16 See also art 23(2): “Everyone, without any discrimination, has the right to equal pay for equal work”.
17 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976) [ICCPR].
18 International Covenant on Social and Economic Rights 993 UNTS 3 (opened for signature 19 December 1966, entered into force 3 January 1976) [ICSER]. The UDHR, ICCPR, and ICSER are collectively known as the “International Bill of Rights”. See McGregor, Bell and Wilson, above n 15, at 21.
19 See ICCPR, above n 17, art 26, and ICSER, above n 18, art 2.
Convention on the Elimination of All Forms of Racial Discrimination (CERD),20 and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).21 The widespread ratification of these conventions demonstrates the high degree of commitment to non-discrimination rights born out of the international human rights movement.22
C. History of Aotearoa’s Recognition of the Right
New Zealand was among the first 51 countries who signed on to the UN Charter upon its establishment on 26 June 1945.23 It went on to ratify CERD in 1972, the ICCPR and ICSER in 1978, and CEDAW in 1985.24 In order to meet these international obligations, New Zealand made a number of significant changes to its domestic law during the late twentieth century. The first examples of dedicated human rights legislation in New Zealand were the Race Relations Act 1971 (RRA) and the Human Rights Commission Act 1977 (HRCA), both of which were aimed at protecting groups from discriminatory treatment.25
The RRA was enacted in anticipation of New Zealand’s ratification of CERD, to provide a formal complaint mechanism for those who had experienced racial discrimination, facilitated by the newly appointed Race Relations Conciliator.26 In 1977, the HRCA was enacted to give effect to New Zealand’s obligations under the ICCPR, prior to its ratification the following year.27 The HRCA provided for the establishment of a Human Rights Commission (HRC), which was directed at protecting New Zealanders from discriminatory treatment within the
20 International Convention on the Elimination of All Forms of Racial Discrimination 660 UNTS 195 (opened for signature 21 December 1965, entered into force 4 January 1969) [CERD].
21 Convention on the Elimination of All Forms of Discrimination Against Women 1249 UNTS 13 (opened for signature 1 March 1980, entered into force 3 September 1981) [CEDAW].
22 At the time of writing, 173 states have ratified the ICCPR; 171 states have ratified the ICSER; 182 states have ratified CERD; and 189 states have ratified CEDAW. See Office of the High Commissioner for Human Rights “Status of Ratification Interactive Dashboard” (21 February 2023) United Nations
<https://indicators.ohchr.org/>.
23 Ministry for Culture and Heritage “New Zealand and the United Nations” (5 August 2014) NZ History
<https://nzhistory.govt.nz/politics/new-zealand-and-the-united-nations>.
24 See Office of the High Commissioner for Human Rights, above n 22.
25 Margaret Wilson “An Account of the Making of the Human Rights Amendment Act 2001” [2011] WkoLawRw 16; (2011) 19(2) Wai L Rev 1 at 2.
26 McGregor, Bell and Wilson, above n 15, at 67.
27 Royden Hindle “Rights Against Legislated Discrimination: A Sleeping Giant? Part 1A of the Human Rights Act 1993” [2008] NZ L Rev 213 at 220.
private sector.28 It therefore did not protect against discrimination perpetrated by the state, unless carried out in its capacity as a private actor, for instance as a landlord or employer.29 Moreover, while the prohibited grounds of discrimination were extended beyond the scope of the RRA to cover sex, marital status, and religious or ethical belief, this list remained fairly narrow.30 The HRCA’s limitations prompted calls for a more comprehensive legislative framework addressing non-discrimination and human rights generally.31
The Bill of Rights was New Zealand’s first comprehensive human rights instrument, and was enacted in order to give further effect to its commitments under the ICCPR.32 Importantly, the Bill of Rights was not intended to protect substantive social and economic rights, such as those affirmed under the ICSER, but instead reflects a process-based theory of rights.33 That said, an express right to freedom from discrimination was included under s 19(1) which, in its original form, provided that everyone had the right to freedom from discrimination on the grounds of colour, race, ethnic or national origins, sex, religious or ethical belief, or marital status.34 The Bill of Rights was thus significant in that it expanded protection to cover discriminatory acts of all those exercising public power, as opposed to its previous confinement to the private sphere.
Importantly, the Bill of Rights also recognises that there can be limits imposed on rights, and provides a mechanism through s 5 by which the reasons for such limits can be balanced against the protection of the right. Section 5 states that “rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. It therefore follows that there are circumstances in which discrimination continues to be deemed acceptable under New Zealand law. Determining when this is the case involves application of a two-stage process: identifying whether there is
28 Wilson, above n 25, at 2.
29 Wilson, above n 25, at 2.
30 McGregor, Bell and Wilson, above n 15, at 67; and Hindle, above n 27, at 221.
31 Wilson, above n 25, at 3.
32 New Zealand Bill of Rights Act 1990, long title.
33 Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Australia, 2003) at 367. 34 Section 19(2) expressly provides that affirmative action measures taken in good faith do not constitute discrimination.
a prima facie limit on the right, and then considering whether that limit can be justified under s 5.35
The HRA is another crucial component of New Zealand’s human rights framework. It sought to strengthen existing anti-discrimination law, by consolidating and improving upon the RRA and the HRCA.36 The relationship between the Bill of Rights and the HRA is of great importance. The original wording of s 19 was amended upon the enactment of the HRA to read: “[e]veryone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993”. Section 21 of the HRA lists thirteen prohibited grounds of discrimination, expanding the original grounds under s 19 to include disability, age, political opinion, employment status, family status, and sexual orientation. This indirect extension of the right is a noteworthy feature of s 19.
The Human Rights Amendment Act 2001 was important in establishing the process by which discrimination claims under s 19 are advanced.37 Under this framework, a claim is first brought to the HRC, which determines whether to escalate the challenge to the Human Rights Review Tribunal (HRRT), whose decisions may be appealed through the courts.38 While there is nothing to preclude a complainant from bringing a claim directly to the general courts, the process under the HRA has several advantages, including funding and access to dispute resolution mechanisms.39 The Amendment Act also granted the HRRT the power to make a declaration that an enactment is inconsistent with s 19, which triggers certain reporting requirements to Parliament.40 This was particularly noteworthy as it predated the recognition
35 See R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [90]–[92]; and Human Rights Act 1993, s 20L(2).
36 Human Rights Act 1993, long title.
37 The insertion of Part 1A into the HRA through this amendment was significant. The Act now provides under s 20L that an act or omission to which that Part applies will be in breach of that Part if it is inconsistent with s 19, which is defined as a limit that cannot be demonstrably justified in terms of s 5. See Hindle, above n 27, at 216– 218; and Grant Huscroft “Freedom from Discrimination” in Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Oxford, 2003) 366 at 395.
38 Huscroft, above n 37, at 395–396.
39 Huscroft, above n 37, at 396.
40 Note that such declarations do not affect the validity of the enactment. See Human Rights Act 1993, ss 92J and 92K. See also Wilson, above n 25, at 9.
of a general power for the courts to issue declarations of inconsistency with respect to the Bill of Rights.41
D. Conclusion
The right to freedom from discrimination has seen considerable development in New Zealand’s law in recent decades. However, the meaning and scope of the right is by no means settled. The following two chapters will address this uncertainty, by assessing the nature and application of ss 19 and 5 of the Bill of Rights.
41 See Attorney-General v Taylor [2018] NZSC 104, [2018] 1 NZLR 213; and New Zealand Bill of Rights Act, ss 7A and 7B. See also Wilson, above n 25, at 13.
II The Problem of Defining Discrimination
A. Introduction
The application of s 19 of the Bill of Rights is difficult and contentious because of several interconnected problems, one being that there is no clear understanding of its central concept: discrimination. This issue is further complicated by the need to determine the proper relationship between the first stage of finding an inconsistency with the Bill of Rights – ascertaining whether there is a prima facie limit on a protected right – and the second stage of assessing whether that limit can be demonstrably justified under s 5. This chapter will outline the problem of defining discrimination under s 19, which arises at the first of these two stages. It will firstly provide some reasons as to why discrimination has proved difficult to define, and lay out the two prevailing perspectives on the term’s proper meaning. Then, it will examine the developments in the case law that led to the current interpretative approach set out in Ministry of Health v Atkinson.42 Finally, it will outline some criticisms of the Atkinson test which indicate its definition of discrimination is unsatisfactory.
B. Introducing the Problem
Discrimination has been described as “a nebulous and complex concept”.43 Accordingly, the question of how s 19 ought to be interpreted has been rigorously debated. There are several factors which contribute to its unsettled meaning, including the relationship between non- discrimination and the concept of equality, and the inherently comparative nature of discrimination.
Like discrimination, equality has long been recognised as an “elusive” concept.44 The fact that it is an ideal supported by those on opposing ends of the political spectrum is evidence of its wide scope of meaning.45 Moreover, equality rights have powerful rhetorical value, given the
42 Atkinson, above n 2.
43 Quilter v Attorney-General [1997] NZCA 207; [1998] 1 NZLR 523 (CA) at 530 per Thomas J.
44 See, for instance, Grant Huscroft “Discrimination, Dignity, and the Limits of Equality” [2000] OtaLawRw 7; (2000) 9 Otago LR 697 at 697.
45 Huscroft, above n 44, at 697. For instance, one may point to the “equality of opportunity” versus “equality of outcome” debate.
importance placed on equality as an ideal.46 However, the pursuit of equality is frequently subject to fiscal constraints on policymakers, who are often forced to prioritise certain groups when allocating scarce resources.47 Given the number of these types of decisions that governments must make, there is ample potential for challenge where a protected right to equality exists. Peter Hogg’s commentary on the Canadian Charter’s equality guarantee notes this issue, suggesting that it has the potential to be that instrument’s most intrusive provision.48
In attempt to avoid this problem of over-intrusion, the New Zealand Bill of Rights’ drafters deliberately excluded a broad equality guarantee, such as a right to “equal protection under the law”.49 They were particularly concerned about “its openness and the uncertainty of its application”, noting that this might encourage courts to delve into areas of substantive policy which are not within their institutional competence.50 By instead opting for a right to freedom from discrimination on a specific set of prohibited grounds, New Zealand steered away from the approach taken under several comparable rights instruments in overseas jurisdictions, including Canada. Section 15(1) of the Canadian Charter of Rights and Freedoms provides that “[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination”.51 Similarly, the Fourteenth Amendment of the United States Constitution provides that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws”.52
However, the extent to which the Bill of Rights distanced itself from the concerns associated with an equality guarantee through the form of s 19 is highly questionable.53 Although s 19 does not contain any explicit reference to equality, it has been noted that the purpose of the right to freedom from discrimination is “to give substance to the principle of equality under the law”.54 Indeed, in many instances the uses of the terms would be virtually synonymous to the
46 See Sandra Fredman Discrimination Law (2nd ed, Oxford University Press, Oxford, 2011) at 1.
47 This challenge is well known. See for instance Terence Arnold “Parliament and the Courts: Arm Wrestle or Handshake?” (2005) 3 NZJPIL 45 at 58.
48 Peter W Hogg Constitutional law of Canada (2nd ed, Carswell, Toronto, 1985), as cited in Geoffrey Palmer "A Bill of Rights for New Zealand: A White Paper" [1984–1985] I AJHR A6 [White Paper], at [10.82].
49 White Paper, above n 48, at [10.82].
50 At [10.82]. It was similarly noted at [10.81] that the meaning of the phrase “equality before the law ... is elusive and its significance difficult to discern”.
51 Canadian Charter of Rights and Freedoms, pt 1 of the Constitution Act 1982, being sch B to the Canada Act 1982 (UK), s 15(1).
52 United States Constitution, amend XIV, § 2.
53 Huscroft, above n 37, at 367. See also Julia Adams “Breaking the Constitution: Discrimination Law, Judicial Overreach and Executive Backlash After Ministry of Health v Atkinson” [2016] NZ L Rev 255 at 262.
54 Quilter, above n 43, at 573 per Tipping J.
extent that they can be described as two sides of the same coin. At the most rudimentary level, discrimination occurs when people are treated differently, while treating people as equal is to treat them the same, thus non-discrimination and equality can be considered symmetrical concepts.55 Therefore, the challenges associated with the definition and application of equality will also generally apply in the context of non-discrimination. It would then appear that the drafters of the Bill of Rights merely shifted the problem, only avoiding the “openness and uncertainty” of an equality guarantee to the extent that s 19 is limited by the (now expansive) list of prohibited grounds under the HRA.
Because discrimination always involves a form of differentiation, it is inherently comparative in nature, and not something that an individual can experience in isolation.56 It is, as McIntyre J explained in Andrews v Law Society of British Columbia, a concept which may “only be attained or discerned by comparison with the condition of others in the social and political setting in which the question arises”.57 Thus, the existence of discrimination in any given case will turn on there being a person or group that is treated differently from others that the court deems to be in “comparable circumstances”.58 This poses certain difficulties, in part because, as Peter Westen observes, determining who is relevantly alike involves questions of moral judgement.59 He suggests that equality as expressed in the Aristotelian proposition that “like people... should be treated alike” is an “empty vessel with no substantive moral content of its own”.60 Therefore, the application of the right to freedom from discrimination, including the determination of when sameness or difference is relevant, necessitates reference to external moral values.61
55 Huscroft notes that a world without discrimination does not necessarily mean a world where we have equality, however this is in the specific context of the right to freedom of discrimination under s 19, as limited by the prohibited grounds under the HRA. See Huscroft, above n 37, at 368. To be clear, this proposition applies when comparing equality and discrimination in an abstract sense.
56 Huscroft makes this point in relation to the concept of equality. See Huscroft, above n 44, at 697.
57 Andrews v Law Society of British Columbia 1989 CanLII 2 (SCC); [1989] 1 SCR 143 at 164.
58 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at 866.
59 Peter Westen “The Empty Idea of Equality” (1982) 95 Harv L Rev 537 at 543.
60 Westen, above n 59, at 547.
61 Janet McLean “Equality and Anti-Discrimination Law: Are they the Same?” in Grant Huscroft and Paul Rishworth (eds) Rights and Freedoms: The New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 (Brookers, Wellington, 1995) 263 at 267.
These challenges have led many judges to struggle in performing the “comparator exercise”, an assessment undertaken to identify the proper person or group for the complainant to be compared against.62 The choice is significant in determining whether a claim will be successful. For example, in Purvis v New South Wales, the complainant was a child who suffered from severe encephalitis which left him brain damaged, causing behavioural problems at school which ultimately led to his expulsion.63 His foster parents argued that this was discriminatory on the basis of disability.64 By majority, the Court held that the appropriate comparator was any other non-disabled pupil who exhibited the same behaviour as the complainant.65 The school therefore had not acted in a discriminatory manner, as the complainant had not been treated differently compared to a non-disabled student in those circumstances.66 However, the minority viewed this comparison as inappropriate given that it would effectively nullify protection from discrimination for those with disabilities, and considered the appropriate comparator to be a student who did not misbehave.67
The utility of the comparator exercise has been increasingly questioned, particularly in Canada and the United Kingdom, on the basis that it distracts from the true issue of whether a claimant has suffered discriminatory treatment.68 It has been suggested that excessive focus on identifying a precisely corresponding “like” comparator may become a search for sameness rather than for disadvantage.69 While New Zealand courts have continued to adopt the comparator exercise, there has been a trend away from a rigid application of the technique, to instead view it as a “helpful tool” in analysis.70
62 See Atkinson, above n 2, at [60]. See also Asher Gabriel Emanuel "To Whom Will Ye Liken Me, and Make Me Equal? Reformulating the Role of the Comparator in the Identification of Discrimination" (2014) 45 VUWLR 1 at 2. Note, a comparator may be a real or hypothetical person or group.
63 Purvis v State of New South Wales (Dept of Education and Training) [2003] HCA 62, (2003) 217 CLR 92. 64 Unlike New Zealand, Australia does not have a national bill of rights. This challenge was brought under the Disability Discrimination Act 1992 (Cth).
65 Purvis, above n 63, at [222]–[223] and [225].
66 At [232]–[233].
67 At [129].
68 See Withler v Canada [2011] SCC 12, [2011] 1 SCR 396 at [41]-[59]; and AL (Serbia) v Secretary of State for
the Home Department [2008] UKHL 42, [2008] 1 WLR 1434 at [28]. See also Butler and Butler, above n 58, at
[17.10.25]; and Adams, above n 53, at 271.
69 Withler, above n 68, at [57].
70 See Atkinson, above n 2, at [60] and Child Poverty Action Group Incorporated (CPAG) v Attorney-General
[2013] NZCA 402, [2013] 3 NZLR 729 at [51]- [52].
C. Conflicting Approaches to Interpretation
Given the challenges associated with defining the concept of discrimination, it is unsurprising that vastly different approaches to interpreting s 19 have emerged. There are two main schools of thought, which are often referred to as the “neutral” and “invidious” approaches to defining discrimination. Both perspectives maintain highly reputable academic support, with the authors of New Zealand’s two main textbooks on the Bill of Rights advocating for competing positions.71 This contest of ideas is therefore sometimes referred to as the “Rishworth/Butler debate”.72 Broadly, the disagreement surrounds whether discrimination merely refers to differential treatment, or whether it requires some additional element of moral wrongdoing.
The neutral approach is endorsed by Andrew Butler and Petra Butler.73 This approach characterises differentiation as the essence of discrimination, and thus embraces the idea that likes should be treated alike, a notion that sits comfortably with the “instinctive idea that fairness requires consistent treatment”.74 The neutral approach is thus closely related to the concept of “formal equality”. Generally, the arguments raised in support of this position are that a broad conceptualisation represents a “human rights friendly” approach, and that any distinction made on the basis of a prohibited ground ought to be capable of objective justification under s 5, otherwise it should not be used.75 It is emphasised under the neutral approach that questions of justification are not relevant at the definitional stage of determining whether there is a prima facie limit on s 19.
By contrast, an invidious approach to discrimination requires some additional element of ‘invidiousness’ that makes the differentiation itself inherently ‘wrong’.76 Paul Rishworth and Grant Huscroft are among those who have advocated for such an approach in New Zealand.77 It has close links to the idea of “substantive equality”, which, “unlike formal equality, rejects the mere presence or absence of difference as an answer to differential treatment” and instead
71 See Butler and Butler, above n 58; and Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Australia, 2003).
72 Former Chairperson of the Human Rights Review Tribunal Royden Hindle termed it as such, whilst noting that there are also several other important contributors to the debate. See Hindle, above n 27, at 236.
73 Butler and Butler, above n 58, at [17.10.42].
74 Fredman, above n 46, at 9.
75 Butler and Butler, above n 58, at [17.10.25] and [17.10.45].
76 Some commentary refers to the “invidious” approach as a purposive approach. The term “invidious” will be used here in order to reflect the terminology in the White Paper, and because the term “purposive” can be misleading given the different conceptions of the purpose of the right to freedom from discrimination.
77 Huscroft, above n 37, at 376.
focuses on “the actual impact of the impugned law, taking full account of social, political, economic and historical factors”.78 The question of what the specific content of the invidious element ought to be remains unresolved, and has varied on different applications of such an approach. Examples of tests that have been adopted include assessing whether the differentiation perpetuates negative stereotypes or historical disadvantage of the affected group, or involves an affront to human dignity – in other words, any suggestion that one person (or type of person) is worth less than another.79 The broad rationale for an invidious approach is the idea that not all forms of differentiation ought to be considered ‘discriminatory’, given the strong negative connotations attached to the term and the practical need for the government to differentiate between groups on a regular basis.80
The White Paper for the Bill of Rights acknowledged these contrasting definitions, noting that discrimination could either be understood in an “entirely neutral sense, synonymous with ‘distinction’, or an invidious sense with the implication of something unjustified, unreasonable or irrelevant”.81 However, the drafters saw the choice as of little concern, given their presumption that application of the justification provision under what is now s 5 meant the result “would seem to be much the same on either interpretation”.82 This presumption raises important issues which I will return to in Chapter IV.
While it is important to consider the proper definition of discrimination from a theoretical standpoint, its meaning in practice turns upon the interpretation that it is given by the courts. This section will briefly outline the development of the New Zealand courts’ approach to the meaning of discrimination when interpreting s 19. The following section will examine the current test as set out in Atkinson.
78 Withler, above n 68, at [39].
79 See, for instance, Law v Canada (Minister of Employment and Immigration) [1999] 1 SCR 497 at [51]; and
Withler, above n 68, at [30].
80 Huscroft, above n 37, at 376.
81 White Paper, above n 48, at [10.78].
82 White Paper, above n 48, at [10.78]. The general limitations clause which became s 5 was initially s 3 under the White Paper proposal.
Quilter v Attorney General was the first case in which the Court of Appeal, New Zealand’s highest domestic court at the time, considered the application of s 19.83 It involved a claim brought by three lesbian couples, who argued that defining “marriage” under the Marriage Act 1955 to include only a union between a man and a woman was contrary to s 19, as it amounted to discrimination on the ground of sexual orientation. The Court of Appeal unanimously dismissed the appeal, confirming that the Registrar’s decision to decline to grant marriage licences to the appellants was correct, as the Marriage Act could not be interpreted as including “same-sex couples”, irrespective of s 19.84
The majority (Richardson P, Gault and Keith JJ) also took the view that, in any case, the law did not limit the appellants’ right to freedom from discrimination under s 19, as Parliament would not have implicitly removed a “central element” of the accepted definition of marriage through the enactment of the Bill of Rights.85 Tipping J tentatively indicated his view that the prohibition on same-sex couples from marrying was prima facie discriminatory, but held that the Marriage Act’s clear language and the operation of s 4 of the Bill of Rights meant that any discrimination was lawful and not in breach of s 19.86 In his dissenting judgment, Thomas J considered that the exclusion of same-sex couples from the status of marriage constituted discrimination contrary to s 19, however concluded that it was not possible to read the Marriage Act in another way and therefore any law change must come from Parliament.87
While the five separate judgments did not provide particularly clear guidance on how s 19 should be interpreted and applied, the majority set a high threshold for establishing a prima facie limit on s 19, apparently taking an invidious approach to defining discrimination. This is most clearly evident in Gault J’s judgment. His Honour distinguished between “permissible and “impermissible” differentiation, noting that “to differentiate is not necessarily to discriminate”.88 The Judge considered that the issue of whether differentiation was impermissible and therefore amounted to discrimination was a “definitional question” which
83 Quilter, above n 43.
84 While the Marriage Act did not include a definition of “marriage”, the traditional understanding of this concept was considered to be so well established that it was not necessary to define it. Furthermore, the statutory language was seen to be clearly directed only at marriages between a man and a woman. See Tipping J’s comments at 577.
85 See Richardson P at 526; Gault J at 527; and Keith J at 555.
86 At 577.
87 At 528.
88 At 527.
should be assessed before turning to the possible application of s 5.89 However, little guidance was provided by Gault J, or indeed the other majority judges, as to what would amount to impermissible differentiation. Furthermore, the majority’s conclusion in the case before them did not depend on the use of an invidious approach, given their view that the Marriage Act imposed a restriction which applied equally to everyone. The Court characterised the prohibition on marrying someone of the same sex as similar to exclusion of the choice of marrying a person who was underage or already married, and therefore considered that this did not amount to differential treatment on the ground of sexual orientation.90 The majority’s reasoning could therefore simply be characterised as a misidentification of the appropriate comparator, which would have been a heterosexual couple who met the prerequisites for marriage.91 This illustrates Westen’s point regarding the moral judgements necessarily involved in determining who is relevantly “alike”, as in this case the choice rested largely on the judges’ own views on the nature of marriage.
Thomas J also appeared to favour an invidious approach to interpreting discrimination. The Judge emphasised that discrimination is an expression of unfair treatment, which “bears most heavily on the socially vulnerable and marginalised members of the community”.92 He therefore noted that “not all distinctions between individuals and groups of individuals will be discriminatory for the purposes of the guarantee in the Bill of Rights”, as some distinctions will be necessary in order for governments to operate effectively.93 Rather, his Honour considered discrimination to be targeted at protecting the notion of equality before the law, which he defined as a “promise of freedom from the subtle and ugly manifestations of stereotyping, stigmatism, prejudice and bigotry, and the realisation of the worth of human beings as deserving of concern, respect and consideration.”94 It would therefore only be distinctions which threatened this promise by “imposing burdens, obligations, or disadvantages” on individuals or groups based on their personal characteristics that would be considered discriminatory.95
89 At 527.
90 See 527-528 per Gault J; and 557 per Keith J.
91 This is hinted at in Thomas J’s judgment at 537.
92 At 532.
93 At 532.
94 At 532.
95 At 532.
Tipping J’s position varied from that of the other judges, and arguably aligned with a neutral approach to defining discrimination. His Honour considered that “[t]he essence of discrimination lies in difference of treatment in comparable circumstances”, and preferred “to define the right ... with the purpose of anti-discrimination laws in mind, and then consider whether any suggested limitation is justified or otherwise lawful rather than circumscribe the content of the right at the outset”.96 The Judge considered the purpose of the right to favour a broad approach, focusing on the impact on the affected person or group.97
Thus, the decision in Quilter left the law of discrimination in a somewhat uncertain state, given the significant variations in reasoning. Furthermore, while the majority appeared to favour an invidious approach to discrimination, they were careful to note that such determinations were not necessary on the facts before them, and therefore these broader comments had limited precedential value.
Following Quilter, cases considering s 19 were relatively scarce, particularly in the Court of Appeal and Supreme Court.98 The few decisions during this period provided little clarity as to the proper definition of discrimination.99 For instance, Trevethick v Ministry of Health involved a complainant who suffered from multiple sclerosis, whose complaint was that if her disability was caused by an accident, rather than an illness she would be entitled to greater financial support.100 The Court of Appeal avoided the question of definition entirely, considering it
96 At 576.
97 At 575.
98 Butler and Butler, above n 58, at [17.9.22].
99 An overview of the Supreme Court and Court of Appeal addressing s 19 pre-Atkinson is set out as follows: Living Word Distributors Ltd v Human Rights Action Group Inc [2000] NZCA 179; [2000] 3 NZLR 570, whicih discussed the apparent conflict between ss 19 and 14 in applying censorship legislation, but did not comment on the meaning of discrimination; Hemmes v Young [2004] NZCA 289, [2005] 2 NZLR 755, which did not address the meaning of discrimination, but observed that narrow application of “family status” ground was an “unfortunate example” of the problem with “over-particularised human rights legislation”, which is considered is often
“underinclusive”; Hester v Commissioner of Inland Revenue [2005] 2 NZLR 172, in which the Court
“unhesitatingly reject[ed]” the proposition that a judge was guilty of homophobia in sentencing where the child sex offending in question was committed against one male and one female; Winther v Housing New Zealand Corp [2010] NZCA 601; [2011] 1 NZLR 825, where the Court found that the Tenancy Tribunal did not have jurisdiction to
determine whether Housing New Zealand’s decision to terminate the complainant’s tenancy was based on unlawful discrimination; and Air New Zealand Ltd v McAlister [2009] NZSC 78, [2010] 1 NZLR 153, which discussed the comparator analysis but in relation to an employment discrimination case.
100 Trevethick v Ministry of Health [2008] NZCA 387, [2009] NZAR 18.
unnecessary to definitively state whether the policy was prima facie discriminatory, given its conclusion that even if it were, the policy would be justified under s 5.101
Atkinson represented a significant turning point in New Zealand’s approach to the interpretation of s 19.102 The case concerned a government policy that offered payments to carers providing disability support services, but excluded from eligibility those caring for a disabled family member. A claim was brought by seven parents of adult disabled children and two adult disabled children, who argued that the policy discriminated against them on the ground of family status.103 In holding that the policy constituted unjustified discrimination, the Court of Appeal reformulated and clarified the approach to applying s 19.
The Court set out a two-part test, defining discrimination as:
(1) “differential treatment on a prohibited ground of a person or group in comparable circumstances”;
(2) where that treatment “imposes a material disadvantage on the person or group differentiated against”.104
This test has been described as an implementation of a neutral approach to discrimination, given that it does not purport to make any judgement about the content of the supposedly discriminatory conduct, and therefore falls short of an invidious approach.105 However, the term “neutral” is misleading, given the addition of the material disadvantage requirement in Atkinson, and the explicit recognition by the Court that not all distinctions will constitute discrimination. Hence, for the purposes of this dissertation, it will be referred to as the “material disadvantage test”. It is also questionable whether the so-called “neutral” approach was ever truly neutral in the sense that it would cover all distinctions made on a prohibited ground. Such an interpretation would not align with any conventional understanding of the wrongfulness of
101 At [18].
102 Atkinson, above n 2.
103 At [13]. The complainants contended that the policy discriminated against the parents because they were not entitled to receive the payment, and against the children because it meant they were unable to have their preferred choice of carer (their family member).
104 At [109].
105 See, for instance, Adams, above n 53, at 266.
discrimination, and indeed would entirely collapse its definition into “different”, making the term redundant. Rather, it is arguable that references to a neutral approach have been oversimplified, and some element of disadvantage was always implicitly incorporated into the definition. The term “neutral” gives the impression of an entirely impartial assessment, when in reality, its application necessarily involves moral judgements.
Bar a slight change in wording, the “material disadvantage” threshold was effectively an adoption of the test applied by the High Court in Child Poverty Action Group v Attorney General, which required disadvantage of a “real” or “more than trivial” nature.106 The Court did not see Quilter as producing any clear guidance for how s 19 ought to be interpreted, given the conflicting approaches taken by the various judges.107 However, this test undoubtedly sets the threshold for establishing a prima facie limit on s 19 considerably lower than in Quilter.
In arguing that the policy was not discriminatory, the Ministry of Health proposed that New Zealand adopt the Canadian approach to interpreting discrimination.108 While the Court ultimately rejected this argument, it spent considerable time examining the Canadian test in relation to s 15(1) of the Canadian Charter. The Court focused in particular on the development of the test through four key cases: Andrews v Law Society of British Columbia, Law v Canada, R v Kapp, and Withler v Canada.109 It concluded this analysis by noting that under the current approach set out in Withler, discrimination could be established either by showing that the law in question “perpetuates prejudice and disadvantage” on the basis of personal characteristics within s 15(1), or by demonstrating a disadvantage based on a stereotype that “does not correspond” to the claimant’s actual circumstances and characteristics.110
The Court provided three main reasons for why the Canadian approach ought not to be replicated in New Zealand.111 Firstly, it considered that such an interpretation of discrimination would be inconsistent with the purpose, statutory scheme, and legislative history of s 19.112 In particular, the Court took the view that the Canadian test would impose additional factors not
106 Child Poverty Action Group Incorp v Attorney General [2012] NZHC 675 at [81], discussed in Atkinson,
above n 2, at [106], [109] and [136].
107 Atkinson, above n 2, at [99].
108 At [76].
109 Andrews, above n 57; Law, above n 79; R v Kapp 2008 SCC 41, [2008] 2 SCR 483; and Withler, above n 68. These are identified as the key decisions at [83].
110 Atkinson, above n 2, at [92].
111 At [110].
112 At [110].
warranted by the HRA’s focus on differential treatment, and the unqualified reference to ‘discrimination’ in s 19.113 The Court was also unpersuaded that the White Paper’s observation that affirmative action programmes were “unlikely” to be characterised as discrimination indicated that “matters of justification” should be considered at the s 19 stage, given that the drafters also thought the choice of definition for discrimination would be inconsequential due to the operation of s 5.114 Instead, it took the view that leaving such matters to be dealt with at the s 5 stage best achieved the purpose of s 19 to prohibit “discrimination on any of the prohibited grounds unless the reason for the discrimination serves a higher goal than the goal which anti-discrimination laws are designed to achieve.”115
Secondly, the Court held that certain differences between s 19 and s 15(1), meant that the Canadian interpretative approach was inappropriate within the New Zealand context.116 Of particular significance was the open-ended grounds of discrimination under s 15(1), and the fact that a finding of discrimination under the Charter could result in a court striking down the rights-inconsistent legislation.117 The Court considered that these factors warranted a more cautious approach to establishing prima facie discrimination than was necessary under New Zealand’s comparatively restrictive statutory regime.118 Furthermore, the practice of s 19 claims being filtered through the HRC was deemed to alleviate any risk of “wasteful floods” of litigation which were of concern to the Canadian courts.119
Finally, certain “policy considerations” were also influential in the Court’s decision.120 While the Court acknowledged the need to avoid trivialising the right to freedom from discrimination, it considered that this risk could be dealt with by disposing of unmeritorious cases through the comparator exercise.121 Furthermore, it dismissed concerns about unfairly stigmatising justifiable differential treatment, asserting that any “stigma” would only attach to a finding of discrimination which also failed to meet the s 5 test.122 Ultimately, the Court concluded that it
113 At [111]–[113].
114 At [114].
115 At [116], referring to the purpose articulated by Tipping J in Quilter, above n 43, at 573.
116 At [110].
117 At [118].
118 At [118]. In particular, it was noted that the scope of s 19 is limited to the prohibited grounds listed under the HRA, and that Parliament retains the final word on legislation through s 4 of the Bill of Rights.
119 At [119]–[120], citing the concern raised by Peter Hogg in Peter Hogg Constitutional Law of Canada vol 2 (5th ed supplemented, Thomson Reuters Canada Ltd, 2007) at [36–8(b)].
120 At [110].
121 At [124].
122 At [125].
was best to take “an approach in which matters of justification are dealt with at the s 5 stage”, as this would have the “advantage of simplicity”, and provide a more structured framework for judges to reason from.123 This was also considered to be more consistent with New Zealand’s commitments under the ICCPR.124
Atkinson’s major development in terms of clarifying the legal test for discrimination was somewhat overshadowed by the constitutional controversy that followed the decision.125 In response to the Court of Appeal’s ruling, the National Government introduced a law that sought to prevent claims of unlawful discrimination in respect of their family care policy from being reviewed by the HRRT or the courts, thus substantially undermining the principle of comity.126 Nevertheless, the material disadvantage test set out in Atkinson has been widely accepted in subsequent cases. Later in the same year, the Court of Appeal in Child Poverty Action Group Inc v Attorney-General noted that “[t]here is no issue that the correct test to be applied in the s 19 analysis is the two-stage test adopted by this Court in Ministry of Health v Atkinson”.127
There are very few cases concerning s 19 which have reached the Supreme Court.128 In Make It 16 Incorporated v Attorney-General, the decision most squarely concerning discrimination, both parties accepted that the current voting age imposed a prima facie limit on s 19 by discriminating against 16 and 17-year-olds on the basis of age, aside from the issue of whether s 12 limited the application of s 19 in the circumstances.129 Although the Supreme Court therefore did not provide specific guidance regarding the concept of discrimination, this suggests an implicit endorsement of the Atkinson approach. Furthermore, in B v Waitemata District Health Board it was argued that a failure to provide a dedicated smoking room in mental health institutions was discrimination on the ground of disability.130 While the Court swiftly rejected the claim, it cited Atkinson as the correct approach for applying s 19.131 The Atkinson test was also recently applied by Williams J in his minority judgment in Van Hemert
123 At [128] and [131].
124 At [131] and [133].
125 See Andrew Geddis “I think National just broke our constitution” (17 May 2013) Pundit
<www.pundit.co.nz/content/i-think-national-just-broke-our-constitution >.
126 Section 70E of the New Zealand Public Health and Disability Amendment Act (now repealed).
127 CPAG, above n 70, at [43].
128 Aside from those listed below, in the few cases in which s 19 has been raised, the Supreme Court has dismissed the arguments with minimal consideration: see M v Attorney-General [2021] NZSC 118, [2021] 1 NZLR 770; and McKee v R [2013] NZSC 122.
129 Make It 16 Incorporated v Attorney-General [2022] NZSC 134, [2022] 1 NZLR 683.
130 B v Waitemata District Health Board [2017] NZSC 88, [2017] 1 NZLR 823
131 At [38].
v R, in the context of providing a “rights-based analytical framework” for determining when a disproportionate sentence may be imposed on public protection grounds.132
Since Atkinson, the material disadvantage test has been consistently applied in the High Court.133 The most recent example of this is Wallace v Chief Executive of the Department of Corrections, in which the Court held that the transfer of women prisoners from Arohata Prison in Wellington to other facilities in Christchurch and Auckland constituted discrimination on the basis of sex according to the material disadvantage test.134
Given the lack of consensus regarding the proper definition of discrimination, it is unsurprising that the Atkinson decision has proved to be controversial. Despite being consistently adopted by later courts, the material disadvantage test has been criticised on the basis that it either necessitates an overly broad reading of s 19 which trivialises the right, or leaves judges to make ad hoc moral judgments in seeking to limit its scope.
Julia Adams has argued that the Atkinson test adopts too broad a definition of discrimination, and so trivialises the right protected under s 19.135 Huscroft has shared this concern in criticising Andrew Butler’s promotion of a purportedly “neutral” approach to discrimination, arguing that “in attempt to provide the greatest possible protection, he ends up ... trivialising the right”.136 The Bill of Rights is significant in that it gives constitutional status to certain rights which have been deemed particularly worthy of protection.137 Thus, those rights that
132 Van Hemert v R [2023] NZSC 116 at [127] and following. The majority’s reasoning meant resort to s 19 was not necessary on the facts: see [126].
133 See, for instance, Hoban v Attorney-General [2022] NZHC 3235 at [12] and [23]–[24]; Smith v Prison Director at Rolleston Prison [2022] NZHC 2366 at [84]; GF v Minister of COVID-19 Response [2021] NZHC 2526, [2022] 2 NZLR 1 at [73]; and Miller v Attorney-General [2022] NZHC 1832 at [131].
134 Wallace v Chief Executive of the Department of Corrections [2023] NZHC 2248. This discrimination was also found to be unjustified under s 5.
135 Adams, above n 53, at 267.
136 Huscroft, above n 44, at 711.
137 See Edward Willis “Judging the minimum voting age” [2023] NZLJ 17, at 18. For a detailed account of the debate around the constitutional status of the Bill of Rights, see generally Claudia Geiringer “The Constitutional Role of the Courts under the NZ Bill of Rights: Three Narratives from Attorney-General v Taylor” (2017) 48 VUWLR 547; and Andrew Geddis and M B Rodriguez Ferrere “Judicial Innovation under the New Zealand Bill of Rights Act – Lessons for Queensland?” [2016] UQLawJl 16; (2016) 35 UQLJ 251.
have been enshrined in this document must be recognised as somehow worthy of this status, for instance based on a belief in their moral or political importance.
Of course, the Atkinson test does provide some limit on the meaning of discrimination through the material disadvantage element, and recourse to the comparator exercise, which is intended to filter out ‘unworthy claims’. However, Adams argues that these limits do not bring us to the proper meaning of the protected right, because the definition still “empties the right of moral content”, and in doing so, removes the normative justification for the right to take precedence over other legitimate considerations in policymaking.138 She questions the logic of the implication in Atkinson that New Zealanders have a fundamental right to be free from differential treatment by the government based on their family status whenever that causes material disadvantage, noting that the extension of the grounds of discrimination under the HRA makes this test particularly problematic, given the frequent need for governments to make distinctions on the basis of such characteristics.139 For instance, in policymaking, distinctions often need to be made on prohibited grounds such as age, disability and employment status, which in many cases invoke no moral qualms.
Charlie Cox has raised a comparable objection to the Atkinson test, in arguing that it enables judges to insert personal values into their decisions, through its failure to explicitly acknowledge or provide guidance on the moral content inherent to the concept of non- discrimination. Cox claims that the right to freedom from discrimination is inherently normative in nature because it is grounded in equality, which means that its application relies on moral presuppositions.140 By attempting to frame the question of whether discrimination has occurred as an amoral, fact-based assessment, the Atkinson test leaves judges to make “ad hoc moral determinations” under the guise of “empiricism” and “common sense”.141 Thus, the “neutral approach” – even in the form of the material disadvantage test – is, according to Cox, not truly neutral, as regardless of the Atkinson test’s “façade” of descriptiveness and
138 Adams, above n 53, at 265.
139 Adams, above n 53, at 266.
140 Charlie Cox “The Majestic Equality of Disenfranchisement: Assessing the Right to Freedom From Discrimination in Light of the Ngaronoa Litigation” (2020) 51 VUWLR 27 at 34.
141 Cox, above n 140, at 34.
empiricism, the identification of discrimination will always involve questions of moral judgement.142
In response to Cox, it may be argued that value-laden reasoning is not a new phenomenon in law, but rather something that judges, for better or for worse, frequently engage in across many areas of law, particularly in the context of human rights. However, there is legitimate concern around the lack of clarity in applying the right to freedom from discrimination, given the need to ensure that the right is meaningfully protected. Therefore, assuming that the right is inherently normative, it is arguable that explicit guidance is necessary as to how the relevant moral considerations should be applied. Even if it is inevitable that application of these moral considerations will be influenced by judges’ personal beliefs, it is better that this is done so against a clear framework to provide a means of accountability, and to increase consistency, rather than implicitly through the application of an apparently ostensive “empirical” test such as the comparator exercise.
The Court in Atkinson suggested that s 5 would be a preferable stage at which to deal with such morally-laden assessments, as it provides a clearer framework for this reasoning.143 However, even assuming that all implicit value judgements could be suspended until that stage under the Atkinson test (a presumption which Cox does not accept), it is arguable that the concerns identified at the definitional stage are only amplified on the application of s 5. Close examination of recent courts engaging in the s 5 analysis indicate several instances in which judges’ personal moral or political views are inserted into their reasoning, an issue which will be discussed in greater detail in the following chapter.
G. Conclusion
‘Discrimination’ is a difficult and contested concept that needs to be carefully defined. The definition that is adopted has important implications for the application of ss 19 and 5. As it stands, New Zealand’s discrimination law has embraced the material disadvantage test established in Atkinson. However there are significant concerns in relation to this approach, which suggest that the current state of the law is unsatisfactory. Criticisms of the material
142 Cox, above n 140, at 38–40.
143 Atkinson, above n 2, at 128.
disadvantage test related to trivialisation of the right and the potential for implicitly value-laden decisions are linked to a potential misunderstanding of the role of s 5. Chapter III will examine how the issue of justification under s 5 has been conceived and applied in relation to s 19.
III Section 5: Justified Limitations
A. Introduction
The previous chapter outlined the difficulties inherent in defining discrimination, and hence in determining how s 19 is to be applied. Despite suggestions that the Atkinson test provides a “straightforward”144 method of dealing with discrimination – by adopting the material disadvantage test and leaving “matters of justification” to be considered under s 5 – closer examination indicates that it is not so simple. As discussed, the material disadvantage test invariably requires some moral judgement when determining whether someone has experienced differential treatment. This chapter will argue that a similar lack of clarity arises in the courts’ assessments of whether a limit on the right to freedom from discrimination is justified under s 5. It will firstly consider the underlying purpose of s 5 and the rationale for its particular form. Then, it will describe the general test for applying s 5 established in R v Oakes.145 Finally, it will focus on the minimal impairment limb of the Oakes test as an illustration of the added confusion that arises at the s 5 stage under the Atkinson approach.
B. The Purpose of Section 5
As outlined in Chapter I, s 5 states that rights and freedoms affirmed under the Bill of Rights “may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. This section will discuss the rationale for allowing fundamental human rights to be limited, the reasoning behind the adoption of a general limitations clause to provide for such limits, and the implications of the requirement for those limits to be demonstrably justified.
It has been noted that s 5 reflects the “obvious reality” that rights and freedoms are not absolute.146 This understanding is expressed in McGrath J’s observation that “rights are part of
144 Butler and Butler, above n 58, at [17.10.42].
145 R v Oakes [1986] 1 SCR 103.
146 Ministry of Transport v Noort; Police v Curran [1992] NZCA 51; [1992] 3 NZLR 260 (CA) at 286 per Hardie Boys J; also noted in the in the White Paper, above n 48, at [10.24]. There are exceptions to this general proposition. It is
a social order in which they must accommodate the rights of others and the legitimate interests of society as a whole”.147 Thus, in a free and democratic society, an individual’s rights must be subject to reasonable limits in order to reflect that individual’s corresponding duties to other members of that society.148 There are a number of situations in which an absolute insistence on certain rights may run contrary to other societal values. For instance, it is generally accepted that the right to freedom of expression should be limited so that it cannot be invoked when inciting violence.149
Furthermore, rights may be limited due to conflicts with other protected rights, which, as Jeremy Waldron describes it, occurs when “the duties they imply are not compossible”.150 For example, the White Paper noted that the right to freedom from expression would be unlikely to justify the release of prejudicial evidence prior to a trial in a manner inconsistent with the right to a fair hearing.151 At times, limits may also be necessary for pragmatic reasons, where it would be impossible to recognise an absolute right due to practical constraints. While this is arguably less relevant in the context of the Bill of Rights, given its exclusion of social and economic rights, the right to freedom from discrimination clearly illustrates how so-called “process” rights are often closely linked to issues of substantive policy. Thus, while the protection of rights is important, there are situations where limits on rights may be equally important.152
Given the recognised need for limits on rights, the Bill of Rights was never intended to provide unqualified protection for all of the rights and freedoms that it affirms.153 That said, the decision to include s 5 as a standalone limitations provision was significant. While Andrew Butler notes
well accepted that some rights are absolute – for instance, the right not to be tortured. However, the right to freedom from discrimination does not fall within this narrow category.
147 Hansen, above n 35, at [186].
148 See Noort, above n 146, at 277 per Richardson J.
149 This example was noted in the White Paper, above n 48, at [10.24].
150 Jeremy Waldron “Rights in Conflict” (1989) 99 Ethics 503 at 506. See also Noort, above n 146, at 286 per Hardie Boys J.
151 White Paper, above n 48, at [10.24]. This is recognised through various legislation which suppresses such speech on these grounds. See, for instance, the Criminal Procedure Act 2011, s 199A, which imposes automatic suppression the details of a defendant’s previous convictions once proceedings are commenced against them.
152 See Butler and Butler, above n 58, at [6.9.8]–[6.9.10], where the authors note that “[l]imits can be fundamental too”.
153 Grant Huscroft “Reasonable Limits on Rights” in Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Oxford, 2003) 168 at 168.
that there are “no norms” as to how limits are addressed, many comparable rights instruments that pre-dated the Bill of Rights did not include a general limitations clause.154 For instance, the United States Bill of Rights contains no explicit limitations provisions, meaning the rights it confers are generally expressed as unqualified.155 Other instruments such as the ICCPR, which the Bill of Rights was enacted to give effect to, attach specific limits to each right on an individualised basis.156 The White Paper noted the existence of these models as potential avenues for addressing limitations under the Bill of Rights, describing them as representing two opposing extremes on the spectrum of rights limitations drafting.157
However, the drafters ultimately favoured an approach closely based on s 1 of the Canadian Charter of Rights and Freedoms, which they viewed as an “intermediate model”.158 This approach was selected for a number of reasons.159 Firstly, it was seen as important that the Bill of Rights explicitly acknowledge that there are limits on the rights and freedoms it affirms, as to neglect to do so would be “misleading”. Secondly, the drafters took the view that providing specific application of limits to rights on an individual basis would not provide greater precision in directing courts and would result in effectively the same inquiry as under a general clause. Thirdly, a risk was noted that, if specific limitations provisions were adopted, slight differences in drafting might be given undue weight in interpretation. Fourthly, it was suggested that the Bill of Rights should be drafted, as far as possible, using “short, simple, elegant and inspiring language”. Finally, the drafters observed that a general limitations clause would give New Zealand the advantage of being able to learn from Canadian jurisprudence in establishing its own approach to applying limits. The White Paper therefore proposed the inclusion of what is now s 5.
154 Andrew S Butler “Limiting Rights” (2002) 33 VUWLR 537 at 539.
155 Huscroft, above n 153, at 169. Note this does not necessarily mean that all rights it affirms are in fact absolute, as such a position would be very difficult position to maintain in a free and democratic society. This uncertainty has led to considerable debate around the extent of rights protection in the United States, particularly in the context of free speech.
156 Butler, above n 154, at 539. See also the Constitution of Ireland (1937); and the European Convention on Human Rights and Fundamental Freedoms (1950).
157 White Paper, above n 48, at [10.25].
158 White Paper, above n 48, at [10.26].
159 The following five reasons are set out in the White Paper, above n 48, at [10.26].
While the need for limits is apparent, it is also essential that allowances made for such limits do not undermine the importance of protected rights and freedoms. The wording of s 5 was designed to appropriately strike this balance by requiring limits to be “demonstrably justified”. This places an onus on those limiting rights to give adequate reasons for doing so, establishing what Etienne Mureinik describes as a “culture of justification”.160 This reflects the notion that, in a free and democratic society, citizens are entitled to an expectation that their rights will only be limited in circumstances where those limits have been properly considered and are deemed to be reasonable.161
The concept of a culture of justification also has broader underpinnings in New Zealand’s political arrangements. The basic premise of New Zealand’s democracy is that the immense power and responsibility exercised by governments must be justified by the consent of the people.162 This implies an expectation that the state is accountable to its citizens, and required to answer to objections to its conduct, for instance where it appears to have limited fundamental rights.163 Not only is this answerability necessary from a politician’s perspective, in the interests of re-electability, but it also provides a means of allowing people to contribute to policymaking, by facilitating challenges to policies that are rights inconsistent. This reflects Amy Gutmann and Dennis Thompson’s explanation of “deliberative democracy”, which they define as “a conception of democratic politics in which decisions and policies are justified in the process of discussion among free and equal citizens or their accountable representatives”.164 Requiring those in power to respond to rights-based claims facilitates a dialogue between citizens and their representatives, which in turn supports the process of deliberative democracy. Hence, on this view, there are wider political benefits to requiring the state to justify limits it places on rights.
C. Application of Section 5: The Oakes Test
160 Etienne Mureinik, “Emerging from Emergency: Human Rights in South Africa” (1994) 92 Mich L Rev 1977 at 1986. This term was adopted in Butler and Butler, above n 58, at [6.8].
161 Butler and Butler, above n 58, at [6.8.1].
162 This is of particular significance given New Zealand’s strong commitment to parliamentary sovereignty. See Report of the Royal Commission on the Electoral System 1986 (11 December 1986) at 6; and Andrew Geddis “From People’s Revolution to Partisan Reform: Recent Electoral Change in New Zealand” (2017) 16 ELJ 222 at 223.
163 This reasoning can also be extended to non-state actors covered by s 3(b) of the Bill of Rights.
164 Amy Gutmann and Dennis Thompson “Why Deliberative Democracy is Different” (2009) 17 Soc Philos 161 at 161.
While the inclusion of s 5 in the Bill of Rights was significant, its application was highly unsettled in the early years following its enactment. The guidance delivered by the Supreme Court in Hansen was critical in clarifying this uncertainty.165 In Hansen, the Court adopted the Canadian approach to assessing justified limits, as established in Oakes and clarified in R v Chaulk.166 All limits placed on rights, whether legislative or administrative in nature, must be assessed according to this test. The Oakes test is made up of two broad stages of analysis.
Firstly, the court must consider whether the objective of the limiting provision is of “sufficient importance”, which involves demonstrating that it relates to “concerns which are pressing and substantial in a free and democratic society”.167 It has been noted that this objective must be important enough “to warrant overriding a constitutionally protected right or freedom”.168 While this purports to set a relatively high threshold, in practice the limb has proved easy to satisfy, as in most circumstances courts will take a light-handed approach to assessing the importance of a given policy.169
The second stage of the Oakes test involves a three-part inquiry to determine whether, overall, the means adopted to achieve the objective are justifiable.170 Firstly, the limiting measure must be “rationally connected” to the objective.171 This can generally be characterised as a threshold issue, which in most cases will be easily satisfied.172 Secondly, the limiting measure must impair the right or freedom as “little as possible”.173 It has been noted that the minimal impairment limb “is often the crux of rights-limitation reasoning”.174 Finally, the limiting measure must overall be considered proportional to the objective, noting that “the more severe the deleterious effects of a measure, the more important the objective must be”. The proportionality assessment has been summed up by reference to the common phrase that “a
165 See Claudia Geiringer “The Principle of Legality and the Bill of Rights Act: A Critical Examination of R v Hansen” (2008) 6 NZJPIL 59 at 62
166 R v Chaulk [1990] 3 SCR 1303.
167 Chaulk, above n 167, at 1335-1336, as cited in Hansen, above n 35, at [64] per Blanchard J. See also [42] per Elias CJ; [103] per Tipping J; and [203]–[204] per McGrath J.
168 Chaulk, above n 167, at 1335-1336.
169 Mel Cousins “The right to freedom from discrimination: Child Poverty Action Group v Attorney-General” (2015) 8 NZFLJ 87 at 92.
170 Hansen, above n 35, [64] and [103].
171 See the headnote of Oakes, above n 145, as cited in Hansen, above n 35, at [103].
172 Cousins, above n 169, at 90.
173 Chaulk, above n 167, at 1335–1336.
174 Max Harris “Justified discrimination?” [2013] NZLJ 363 at 364.
sledgehammer should not be used to crack a nut”.175 While this component of the test is generally influential in the analysis, it will not be discussed in any great detail, except to note that it adds to the unpredictability of s 5 as a largely discretionary exercise in which judges may differ considerably in their approach.
Consistent with this general point, Hansen affirmed that any consideration of a Bill of Rights consistent statutory interpretation under s 6 must not occur until it is determined whether a given rights-limiting reading is justified under s 5.176 This approach has been endorsed by Palmer J in Four Midwives v Minister for COVID-19 Response, and by commentators such as Hanna Wilberg.177 It is also consistent with the characterisation of the Bill of Rights as “a bill of reasonable rights”.178
D. Pitfalls of the Oakes Test as Applied to Section 19: The Minimal Impairment Limb
In Atkinson, the Court expressed the view that it was best to leave what it considered “matters of justification” to be dealt with at the s 5 stage, by adopting a broad definition of discrimination. This means that in practice, s 5 will often be the crucial stage of analysis for whether there is a breach of s 19. However, in examining the application of s 5 in the context s 19, it becomes evident that the supposedly structured application of s 5 is in many ways unclear. Furthermore, the s 5 test allows for continued deviation from legal reasoning, an issue already noted at the definitional stage, by allowing judges to import reasoning that is value- laden and relating to matters of substantive policy. The test therefore not only fails to provide a coherent framework for judges, but increases the risk of courts stepping outside their institutional bounds.
These issues are particularly evident in the application of the minimal impairment limb of the Oakes test, which this section will draw on as an example. The adoption of the “range of reasonable alternatives” test raises questions of how deferential judges should be to an original
175 Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9 (CA) at [18] per Tipping J; cited in
Hansen, above n 35, at [185].
176 Hansen, above n 35, at [59] per Blanchard J, [89] per Tipping J, and [191] per McGrath J. See also Geiringer, above n 165, at 67.
177 Four Midwives v Minister for COVID-19 Response [2021] NZHC 3064, [2022] 2 NZLR 65 at [45]–[46], [50] and [52]; and Hanna Wilberg “Settling the Approach to Section 5 of the Bill of Rights in Administrative Law: Justification, Restraint and Variability” (2021) 19 NZJPIL 97 at 109.
178 Paul Rishworth, “Interpreting and Invalidating Enactments Under a Bill of Rights” in Rick Bigwood (ed) The Statute: Making and Meaning (LexisNexis, 2004) 251 at 277.
decision maker, something the courts have addressed through consideration of the relevant legislative or policy process. There are concerns around whether this is within the legitimate scope of legal reasoning. While relatively few s 19 cases have reached the Court of Appeal or Supreme Court and undergone a full s 5 assessment, the decisions of Atkinson, Child Poverty Action Group Inc v Attorney-General (CPAG), and Make It 16 Inc v Attorney-General illustrate the difficulties at hand.179 The background to the latter two cases are briefly outlined below to contextualise this discussion.
CPAG concerned a claim brought by Child Poverty Action Group that the “off-benefit” exception to the Labour Government’s “in-work tax credit” was discriminatory on the basis of employment status.180 As part of the Working For Families package, the in-work tax credit supplemented the incomes of those in paid work by up to $60 per week for families with three children or less.181 However, the off-benefit rule meant that any person who received an income-tested benefit was not eligible to receive this income supplement.182 Applying the test established in Atkinson, the Court of Appeal held that the policy was prima facie discriminatory.183 In considering whether the limit was justified, the Court dealt quickly with the first two elements of the Oakes test, finding that the off-benefit rule’s purpose of “incentivising relatively low income earners to pursue and remain in work” was sufficiently important to justify limiting the right, and the rule was rationally connected to that purpose.184 Therefore, the justification assessment primarily turned on the final two limbs of the test – minimal impairment and proportionality.185 The Court ultimately found that the limit was justified under s 5.186
179 Make It 16, above n 129, is the first case to reach the Supreme Court in which s 19 was engaged and a full justification assessment was undertaken. CPAG, above n 70, and Atkinson, above n 2, are the only Court of Appeal cases decided under the Atkinson approach which have applied the full s 5 test.
180 CPAG, above n 70, at [2].
181 At [1]. An additional $15 per week was paid to families with four or more children.
182 At [1]. Those who did not meet the “full time earner requirement” of working at least 20 hours a week for a single person and at least 30 hours for a couple were also ineligible.
183 See [67]–[75].
184 At [77].
185 At [77].
186 At [163].
As outlined in Chapter II, Make It 16 concerned a claim that setting the voting age at 18 constitutes discrimination against 16 and 17-year-olds on the basis of age.187 Despite the complex issues that this raised regarding the interaction between s 19 and the right to vote under s 12, the Crown accepted that the voting age imposed a limit on the right to freedom from discrimination on this ground.188 As to s 5, the Crown offered no evidence that the limit was justified, other than stating that Parliament had chosen to set the voting age at 18 and therefore the Court ought to defer to its decision.189 The Court noted that the Attorney-General was required to demonstrate why the age of 18 was chosen instead of 16 or 17, and as he had not sought to do so, found that the limit was not justified.190 Thus, the Supreme Court’s decision has minimal impact on the status of New Zealand’s non-discrimination law – beyond apparently endorsing the Atkinson approach – given its lack of analysis on the question of s 19’s definition or the application of the Oakes test under s 5.
The minimal impairment requirement of the Oakes test involves the court “considering whether any less rights-intrusive means of addressing the objection would have a similar level of effectiveness”.191 However, the majority in Hansen, following the approach in Chaulk, suggests that “minimal impairment” is not intended to be interpreted in a literal or absolute fashion. Blanchard J noted that “a choice could be made from a range of means which impaired the right as little as was reasonably necessary”.192 Tipping J expressed a preference for a requirement that the limit “is no greater than is reasonably necessary to achieve Parliament’s objective”, rather than a need for the limit to “impair the right as little as possible”.193 McGrath framed the inquiry as “whether there was an alternative but less intrusive means of addressing the legislature’s objective which would have a similar level of effectiveness”.194
187 Make It 16, above n 129, at [1]. For commentary on this case, see generally Dan Meagher and Andrew Geddis “Voting age and non-discrimination in New Zealand” [2023] PL 393.
188 Make It 16 Incorporated v Attorney-General [2022] NZSC Trans 14 at 4.
189 At [43]–[44].
190 At [45].
191 Attorney-General v IDEA Services Ltd [2012] NZHC 3229, [2013] 2 NZLR 512 at [222].
192 Hansen, above n 35, at [79].
193 At [126].
194 At [217].
In Atkinson, this was framed as an assessment of whether the rights-limiting measure “fell within a range of reasonable alternatives”.195 In particular, the Court noted that the existence of an alternative option which would have a lesser impact on rights does not necessarily mean that the chosen option was not “minimally impairing”.196 The “range of reasonable alternatives” approach was subsequently endorsed in CPAG.197 This test has been subject to some criticism. Harris contends that this approach may have strayed too far from the Supreme Court’s holding in Hansen, by misplacing focus on reasonableness rather than the actual intrusion on the right.198 Edward Willis similarly suggests that demonstrating the reasonableness of an approach does not adequately address the question of why a limit on the right to freedom from discrimination ought to be overlooked.199
To determine whether the limit is within a “range of reasonable alternatives”, courts must consider how much “deference” to show to the original decision maker. This is a highly contentious issue, which judges differ considerably in their approaches to. Some courts have disavowed the language of deference altogether, in favour of terms such as “leeway”, however these seem to amount to much the same thing.200 In CPAG, the Court noted that in cases involving “the complex interaction of a range of social, economic and fiscal policies”, such as the one before them, “some latitude or leeway is given to the legislature or the decision maker” in undertaking the s 5 analysis.201 However, it also noted that this does not displace the onus on the Crown to justify the limit on the right.202 The Court also drew on Tipping J’s analogy of a bullseye to illustrate the “margin of leeway” that is to be left to Parliament, which will vary according to the extent to which the matter involves substantive policy concerns.203 The uncertainty around the approach to deference adds to the overall lack of clarity in the application of s 5.
195 Atkinson, above n 2, at [151]–[153].
196 At [154].
197 CPAG, above n 70, at [102].
198 Harris, above n 174, at 364.
199 Willis, above n 137, at 18.
200 Harris, above n 174, at 366.
201 CPAG, above n 70, at [91].
202 At [91].
203 At [82], citing Tipping J’s observations in Hansen, above n 35, at [119].
However, Make It 16 demonstrates that there are limits to the deference which a court will show to the Crown when applying the minimal impairment test. The Supreme Court held that it was not enough for the Attorney-General to note that there needed to be some age at which voting rights are granted, and 18 was the one which Parliament had chosen, as this did not demonstrate why that choice was a “reasonable” alternative to a voting age of 16.204 This suggests that, in order to satisfy the minimal impairment limb, there is still some onus on the Crown to give reasons for why the decision was made, beyond simply indicating that it is the preferred alternative of MPs. While this gives effect to the justificatory purpose of s 5 to some degree, it still does little to alleviate the uncertainties associated with the range of reasonable alternatives test.
An important factor for courts in determining the degree of deference to be afforded to a decision maker in the context of s 19 has been the quality of the legislative or policy process undertaken in developing the rights-limiting measure. For instance, in Make it 16, the complete absence of policy reasoning for why it was “better” to set the voting age at 18 than 16, meant that no justification was possible. This concern is also particularly evident in comparing the reasoning in the Court of Appeal’s decision in Atkinson, which held there was an unjustified limit on s 19, with the reasoning CPAG, where the limit was found to be justified. The factual similarities between these cases make these different outcomes noteworthy, as both involved challenges to government policies concerning the distribution of public funding, and were brought by vulnerable complainants whose circumstances might be expected to elicit a degree of sympathy.
In CPAG, the Court noted that “this is not a case where the Government has latched on to one option without careful consideration of the alternatives”, noting the “extensive” policy analysis that took place before implementing the in-work tax credit.205 The Court took the view that “the presence or absence of a good process prior to implementation is always relevant”, and was a significant factor in affecting the “leeway” to be given to the policy decision.206 By contrast, in Atkinson, the Court was unimpressed by the Ministry’s imprecise costings and lack
204 Make It 16, above n 129, at [45].
205 At [108]
206 At [108]
of clarity in forming its own view on what the policy ought to be, which formed an important basis for the finding that the limit on s 19 was not justified.207
This raises the issue of whether such reasoning can still be characterised as “judging” a legal matter, or whether it involves courts delving too far into policy considerations beyond their institutional competence. There are several reasons for concern. Firstly, it is not at all clear that policy process is relevant to whether a limit on a right is demonstrably justified. The Court in CPAG accepted Abella J’s observation in Quebec (Attorney-General) v A that the focus must be on the ultimate policy choice, and that “the degree of legislative time, consultation and effort cannot act as a justificatory shield to guard against constitutional scrutiny”.208 However, the Court contradicts this proposition in its approach, by merely asserting the relevance of the policy process with minimal explanation or engagement with authorities. If the task is for courts to carry out an independent assessment of whether legislation or policy is justifiably limiting on rights, it would seem that the emphasis should be on the effects of the rights-limiting measure, rather than process that led up to it.
Secondly, there are serious questions as to whether such considerations are properly within the providence of the courts when assessing justification under s 5. Harris notes that New Zealand authority is unclear on whether it is constitutionally legitimate for courts to examine policy briefing papers in applying s 5.209 However, assessing this process requires the courts to delve into matters of substantive policy which arguably go well beyond the scope of legal reasoning. In CPAG, the Court spent considerable time reviewing the quality of the Government’s policy process, focussing in particular on outlining the Ministry’s costings, with only a brief mention of its lack of consideration of potential human rights implications.210 Mel Cousins therefore argues that the Court in CPAG ultimately engaged in a policy analysis, as opposed to a legal one.211 Similarly, Adams notes that in Atkinson, the Court’s finding that Ministry’s policy
207 At [178]–[179].
208 At [108], citing Abella J in Quebec (Attorney-General) v A [2013] SCC 5.
209 Harris, above n 174, at 365. He suggests that this practice sits uncomfortably with decisions such as Marlborough District Council v Altimarloch Joint Ventures Ltd [2010] NZSC 126 and Skycity Auckland Ltd v Gambling Commission [2007] NZCA 407; [2008] 2 NZLR 182 (CA), but notes that Canadian courts and the European Court of Human Rights have accepted such practices.
210 CPAG, above n 70, at [118].
211 Cousins, above n 169, at 91.
processes were inadequate amounted to a confusion between procedural and substantive justification.212 Although judges may be seeking to withdraw from engagement in policy matters by deferring to government procedure in this way, in practice it often leads to the opposite result, whilst increasing existing confusion around the role of the court in rights interpretation.213
The “range of reasonable alternatives” test therefore encourages judges to move away from legal analysis to directly consider other policy options which could have been adopted and their potential effectiveness. Such an approach may bring up similar concerns to those identified at the definitional stage of s 19, in that it allows judges to engage in non-legal reasoning under the guise of empiricism. Moreover, whilst perhaps posing as means of showing deference to decision makers, the “range of reasonable alternatives” approach provides a significant discretion for the individual judge, which adds to the scope for reasoning to be impacted by judges’ personal views.
E. Conclusion
The role of s 5 in rights application is undoubtedly significant, and it has hence been described as “the key provision in the Bill of Rights”.214 However, the numerous discretionary considerations that arise in applying the s 5 test indicate that many of the concerns identified at the definitional stage are present, and indeed amplified, when determining whether a limit can be justified. The final chapter of this dissertation will consider how these problems derive from a mischaracterisation of the relationship between ss 5 and 19 under the Atkinson test.
212 Adams, above n 53, at 283.
213 Adams, above n 53, at 286.
214 Huscroft, above n 153, at 169.
IV The Relationship Between Rights and Limits
A. Introduction
Chapters II and III highlighted the lack of clear guidance for judges regarding the application of the right to freedom from discrimination, both in identifying a prima facie limit on the right, and in assessing whether that limit can be demonstrably justified under s 5. This provides scope for courts to engage in analysis that arguably goes well beyond legal reasoning, to encompass matters that are moral or political in nature. It is therefore evident that the Atkinson test does not provide the coherent and straightforward approach that it purported to establish.
A central feature of the current formulation of the test is how it defines the respective roles of ss 5 and 19. The relationship between these sections raises broader questions around what an assertable “right to freedom from discrimination” actually entails, and how this is affected by the allowance for limits on rights under s 5. This chapter will argue that the failure to adequately define s 19 has mischaracterised the role of s 5, so that it is effectively required to define the scope of the right to freedom from discrimination. This will be demonstrated by highlighting the problems with endorsing a “justification balancing” approach, and considering how the form of the Atkinson test is linked to the problems of application identified in Chapters II and
III. This leads to the suggestion that adopting an invidious approach to discrimination would be more consistent with the context and purpose of the Bill of Rights, and avoid placing undue burdens on the state.
B. The White Paper Position
It is useful to frame this discussion by recalling the position expressed in the White Paper in relation to the meaning of discrimination. As noted in Chapter II, the drafters of the Bill of Rights viewed it as inconsequential whether discrimination was defined in a “neutral” or “invidious” sense, as they considered that each interpretation would ultimately lead to the same outcome following the application of s 5.215 This indicates minimal concern with separating the definition of the right from the question of whether it can be justified.
215 White Paper, above n 48, at [10.78].
Several commentators have criticised this view. For instance, Huscroft argues that “[t]he premise that the same result would obtain regardless of the conception of discrimination adopted is ... irrelevant,” because the distinction between rights and justification of limits on those rights is essential to the operation and construction of the Bill of Rights.216 He observes that “we need to know what a right is before we can determine whether or not it has been limited”.217 Moreover, subsequent application of the Bill of Rights following its enactment has established a far more distinct role for s 5 than that envisaged by the White Paper’s observation, through the general two-stage assessment for determining rights inconsistency affirmed in Hansen. That said, considerable uncertainty remains regarding what the nature of the analysis that each stage ought to entail.
C. Scope Balancing and Justification Balancing
The issue of the proper relationship between the process of defining rights and ascertaining their limits remains unsettled. Butler and Butler describe two distinct methods of approaching this issue, which they refer to as “scope balancing” and “justification balancing”.218 Scope balancing involves “reading limitations into the definition of the right”, thereby narrowing the scope of the right at the first stage of determining whether it has been limited prima facie.219 Conversely, a justification balancing approach adopts a broad definition of the right “without reference to competing values or other considerations”, leaving any questions of justification to be determined at the s 5 stage.220 Butler and Butler favour justification balancing, as they view it as necessary to uphold the two stage process that the construction of s 5 requires.221 Moreover, they suggest that such an approach provides a “clearer, more transparent analysis” of any apparent interferences with a right, which they note is particularly important in circumstances where policy issues are called into question.222 Finally, they consider that scope balancing renders the s 5 assessment effectively redundant.223
D. Application of Justification Balancing
216 Huscroft, above n 44, at 699. See also Hindle, above n 27, at 236.
217 Huscroft, above n 44, at 699.
218 Butler and Butler, above n 58, at [6.6.1].
219 Butler and Butler, above n 58, at [6.6.1].
220 Butler and Butler, above n 58, at [6.6.1].
221 At [6.6.6].
222 At [6.6.8].
223 At [6.6.1] and [6.6.9].
The Atkinson decision clearly reflects a justification balancing approach, given the broad definition attributed to discrimination through the material disadvantage test. Furthermore, in validating its decision to define the right in this way, the Court of Appeal emphasises that questions of justification should not be considered at the definitional stage.224 It also rejected the Ministry’s proposed adoption of the Canadian test for similar reasons to those raised by Butler and Butler in relation to scope balancing. Although Butler and Butler suggest that the question is not fully resolved in New Zealand’s law,225 the Atkinson formulation seems to reflect a general trend towards favouring justification balancing in rights interpretation.
Soon after the Bill of Rights came into force, the courts began to indicate a preference for a broad interpretation of rights.226 In Flickinger v Crown Colony of Hong Kong, Cooke P adopted the reasoning of Lord Wilberforce in Minister of Home Affairs v Fisher, noting that rights ought to be “construed generously”, in a manner “suitable to give to individuals the full measure of the fundamental rights and freedoms referred to”.227 Furthermore, Butler and Butler suggest justification balancing is affirmed in Hansen.228 This is most clearly expressed by Elias CJ, who endorsed the Canadian approach to applying s 1 of the Charter, which emphasises that “in ascertaining the meaning of the right, the criteria for justification are not relevant”.229 In doing so, she also noted that “it is important not to collapse the s 5 assessment into the interpretation of the right”.230
More recently, in New Health New Zealand Inc v South Taranaki District Council, the Supreme Court considered whether the South Taranaki District Council’s decision to fluoridate water supplies was a breach of the right to be free from compulsory medical treatment under s 11 of the Bill of Rights.231 Whilst acknowledging that this represented a “generous interpretation” of s 11, the majority held that the right was engaged.232 O’Regan and Ellen France JJ observed that the definition of “medical treatment” was to be determined “on the orthodox approach
224 Atkinson, above n 2, at [116] and [128].
225 Butler and Butler, above n 58, at [6.6.2].
226 Huscroft, above n 153, at 172.
227 Flickinger v Crown Colony of Hong Kong [1991] 1 NZLR 439 (CA) at 440 per Cooke P, quoting Lord Wilberforce in Minister of Home Affairs v Fisher [1979] UKPC 21; [1980] AC 319 at 328–329.
228 Butler and Butler, above n 58, at [6.6.3].
229 Hansen, above n 35, at [22].
230 Hansen, above n 35, at [22]–[23].
231 New Health New Zealand Inc v South Taranaki District Council [2018] NZSC 59, [2018] 1 NZLR 948 at [9].
232 At [97]–[100] per O’Regan and Ellen France JJ, [172] per Glazebrook J, and [212]–[213] per Elias CJ.
based on text and purpose, taking the generous approach that is adopted in interpreting the Bill of Rights”. 233 In adopting this approach, the Judges cited Atkinson as evidence that “matters of justification” must only be considered under s 5, as well as noting Elias CJ’s observation in Hansen that interpretation of the scope of rights and the application of s 5 must be kept separate.234 Glazebrook J agreed that s 11 was engaged.235 Elias CJ also took the view that fluoridation constituted “medical treatment” for the purposes of s 11, emphasising that there was nothing in the wording of s 11 to warrant “reading-down” the right to exclude public health measures.236 Conversely, William Young J considered that the fluoridation of drinking water did not constitute “medical treatment” within the intended scope of protection of s 11, and therefore the right was not engaged.237 This trend was recognised by the High Court in Make It 16, where it was observed that the “general approach” to be derived from New Health and Atkinson is that it is inappropriate to unduly limit the scope of a right when determining whether it has been limited prima facie under the Hansen methodology.238
E. The Problem with Justification Balancing: A Conflation of the Two Stages
The application of justification balancing reflects a strong endeavour to keep the identification of limitations on rights separate from the justification assessment under s 5. However, in the concern to avoid collapsing s 5 into the definitional stage, there has been a failure to recognise the alternate risk of collapsing the definition of a right into the justification assessment. Huscroft notes that a generous interpretation of rights often means it is easy to establish a prima facie limit on a right, which puts a greater emphasis on the s 5 component of the test.239 He argues that in such cases, “rather than establishing a standard for determining whether limitation of a right can be justified, in effect, the interpretation and application of s 5 will establish the parameters of the right itself”.240
233 At [82]. Note that Ellen France J also delivered the Court of Appeal judgment in Atkinson.
234 At [79].
235 At [172].
236 See [225]–[243], especially at [228]. But note the Chief Justice’s dissenting conclusion that the Council was not empowered to authority administer fluoridation through the supply of water: see [214], [244], and [303]. See also MB Rodriguez Ferrere “The New Zealand Bill of Rights Act 1990 and Administrative Law: a History of Confusion and Inertia” [2021] NZ L Rev 71 at 90–91.
237 See [178] and [203]–[210].
238 Make It 16 Incorporated v Attorney-General [2020] NZHC 2630, [2020] 3 NZLR 481 at [76].
239 Huscroft, above n 153, at 172.
240 Huscroft, above n 153, at 172.
This concern is evident in the application of s 19 under the Atkinson test. In its determination to defer “matters of justification” to the s 5 stage, the Court ignored the need to define the right at all. This results in what Huscroft refers to as “a conception that is devoid of any normative content whatsoever”.241 As a result, s 5 is effectively required to do the work of defining the scope of the right under s 19. Therefore, despite the Court’s insistence on keeping the two stages separate, it allowed the pendulum to swing too far in the other direction, leading to a conflation of the roles of ss 5 and 19 through the inclusion of definitional assessments under s5. Thus, similarly to the White Paper, the Atkinson test fails to properly separate these distinct questions.
F. A Misleading Distinction Between Scope Balancing and Justification Balancing
A further problem is that Butler and Butler’s dichotomous analysis oversimplifies the relationship between the question of rights definition and justification. They present a binary approach, under which either the right is defined in a completely broad manner that leaves all analytical work to be done under s 5, or justificatory questions are improperly raised at the definitional stage.242 However, contrary to their position, it is possible to accept the need for a two-stage assessment in which justification must be considered under s 5, without simply bypassing the need to establish a meaningful definition of the right itself. In the context of s 19, defining discrimination according to the material disadvantage test is not the only means of constructing a two-part test which leaves some role for s 5. This can be illustrated through two examples: the interpretation of the right to freedom of expression under s 14 of the Bill of Rights, and the Canadian approach to non-discrimination.
The application of the right to freedom of expression in Attorney-General v Smith provides a useful demonstration of how the scope of a right may be properly defined, whilst still leaving room for justification under s 5.243 In that case, the Court of Appeal considered whether refusing to allow a prisoner to wear a wig to disguise his baldness imposed a limit on his right
241 Huscroft, above n 44, at 711.
242 These are also presented as two alternative options in Adams, above n 53, at 286.
243 Attorney-General v Smith [2018] NZCA 24, [2018] 2 NZLR 899.
to freedom of expression.244 Smith argued that wearing the wig constituted expression because it increased his self-esteem and, in his view, was capable of altering others’ perceptions of him.245 The Court imposed a “purposive limit” on the right, holding that in order to engage the protection of s 14, the act must involve “an attempt to convey meaning to another”.246 It concluded that wearing the wig was not expressive conduct, because it did not convey or attempt to convey any meaning.247 Rather, in wearing the wig, Smith was endeavouring to make his appearance less distinctive in order to fit in, as opposed to standing out.248
In reaching its decision, the Court distinguished the act in question from what it termed “low value” expression – such as hate speech, incitement to violence, or trivial information – which would meet the s 14 threshold, but be unlikely to pass the s 5 justification test.249 It also drew on Priestly J’s observations in Thompson v Police that “it is farcical to suggest that every human activity is an exercise of the right to free expression” and “[c]are must be exercised to ensure that “expression” which has a protected status is not confused with mindless human utterances or sounds.”.250 This reasoning indicates the continued importance of defining a right in a manner that reflects the purpose for which it is protected, even in the context of increasing endorsement of a broad approach to rights interpretation. Furthermore, it illustrates that there can be a distinction between delineating the scope of a right and incorporating “matters of justification” at the preliminary stage of identifying a prima facie limit.
This point is further illustrated through Canadian rights jurisprudence. Butler and Butler cite the endorsement of the justification balancing approach in Canada as support for its use in New Zealand,251 but fail to acknowledge that Canada maintains this general approach whilst also defining discrimination under s 15(1) in an invidious sense. It might be suggested that Canada’s approach to non-discrimination simply does not align with its general acceptance of the need
244 At [30].
245 At [32].
246 At [45]–[46].
247 At [51].
248 At [51].
249 At [38].
250 Thompson v Police [2012] NZHC 2234, [2013] 1 NZLR 848 at [75], cited in Smith, above n 244, at [44]. That case concerned a woman who would walk around the neighbourhood at night, letting out loud and incomprehensible screams, supposedly to call for stray cats.
251 Butler and Butler, above n 58, at [6.6.10].
to separate the two stages by leaving justificatory matters to s 5. This reflects the Court’s view in Atkinson when rejecting the Canadian approach on the basis that matters of justification must not be brought to bear on the definition of the right.252 However this reasoning constructs a strawman argument, as it is not at all clear that an invidious approach such as that adopted in Canada does incorporate matters of justification, as opposed to other distinct definitional questions or factors. Considering whether someone has experienced differential treatment which perpetuates prejudice and historical disadvantage on the basis of one’s personal characteristics, or which disadvantages them based on a stereotype that “does not correspond” to the claimant’s actual circumstances, requires a different analysis to the justificatory questions examined under s 5. For instance, practical considerations such as a fiscal or administrative constraints on decision makers will not bear on whether s 19 has been limited prima facie.253 While there will undoubtedly be less cases that progress to a s 5 assessment if discrimination is interpreted in an invidious sense, this is not necessarily cause for concern, but in fact has several advantages, which will be discussed in the following section.
G. Implications of the Material Disadvantage Test
In a practical sense, the current approach to applying s 19 is unsatisfactory for three main reasons. Firstly, it distorts the purpose of rights protection under the Bill of Rights. Secondly, the form of the Atkinson test increases the scope for courts to engage in analysis which exceeds their institutional competence. Finally, it places an unwarranted burden on the state to justify supposed rights “breaches”. Therefore, New Zealand ought to reassess its approach to defining discrimination, and consider the advantages of adopting an invidious approach, such as that used in Canada.
The adoption of an invidious approach would achieve greater consistency with the overall character of the Bill of Rights as an instrument to protect fundamental human rights. As discussed in Chapter II, there is significant concern that the material disadvantage test trivialises the protected right under s 19, an issue that is largely attributable to the way that
252 Atkinson, above n 2, at [116] and [218].
253 Huscroft, above n 44, at 711. See also Sheila McIntyre’s criticism of Gosselin v Quebec [2002] 4 SCR 429 as a misapplication of the Canadian test on this basis, in McIntyre, above n 1, at 750–751.
justification balancing, as envisaged by Butler and Butler, overlooks the need to define the right. This definitional conundrum can be distilled down to the question of whether s 19 ought to be framed as a right not to be subject to differential treatment for reasons that are morally reprehensible, or whether it is better viewed as a political constraint which prohibits the state from differentiating between people or groups unless it can demonstrate that there is a good reason for doing so. The former proposition is more consistent with common understandings of discrimination, and with the nature of rights protection under the Bill of Rights, which reflects the idea that limits on rights ought to be taken seriously. The requirement for limits on rights to be justified is itself evidence for this claim. An invidious definition of discrimination more clearly expresses the values which underpin non-discrimination rights, such as the equal and inherent worth of individuals. Conversely, the rationale for the material disadvantage test can at best be attributed to a formalistic understanding of equality, which has largely fallen into disrepute.254
The legislative history of s 19, particularly its “backdoor” amendment through the HRA, is also important in informing this discussion. While the grounds of discrimination initially set out under s 19 may have adequately restricted the scope of the right, even as expressed under the material disadvantage test, the expanded list of prohibited grounds casts serious doubt upon such a view. The ability of these grounds to limit the scope of what would be considered discrimination was significantly overstated in Atkinson, given their broad reach. While there may be good reason to assume that differential treatment on the original grounds, such as race or sex, would raise cause for concern, the same cannot be said for a number of the more recent additions, such as age or employment status. Indeed, governments routinely make distinctions on such bases for entirely legitimate reasons. It is therefore unnecessary and inappropriate to require such action to be demonstrably justified under the Oakes test.
As demonstrated in Chapter III, one the key concerns that arises at the s 5 stage is the significant scope for courts to engage in matters of substantive policy, given the nature of the justification assessment and the specific considerations under the Oakes test. The application of the material disadvantage test allows more cases to progress to the s 5 stage, resulting in a greater risk of
254 See Fredman, above n 46, at 8–10.
increased judicial scrutiny of such policy matters – the very thing that the drafters of the Bill of Rights were at pains to avoid.255 In addition, the broad-brush nature of the definitional assessment and resulting overemphasis on s 5 means that these policy factors are likely to be determinative in whether there is a breach of s 19.
Furthermore, the structured framework of the Oakes test becomes difficult to apply effectively if there is no meaningful breach established at the first stage of assessment under s 19. For instance, the proportionality assessment relies on a court examining whether the objective of a rights limiting measure justifies the means of achieving it, which presumes that a court will have assessed the degree of the rights limit, and further that a limit on rights is inherently negative. This conflicts with the Court of Appeal’s comments in Atkinson that the “stigma” of a rights breach does not attach at the “intermediate” stage of determining a prima facie limit, but only after the limit is found to be unjustified.256 Moreover, if there is not a clear sense of what a right actually means, it will be difficult to determine whether an act is “minimally impairing” on that right. Such concerns are reflected in Huscroft’s observation that one of the most compelling reasons for defining discrimination in an invidious sense is that to do otherwise makes s 5 very difficult to apply.257 While it has been argued that this concern reflects an overly rigid conception of s 5,258 such a position fails to recognise that the nature of the Oakes test means it is inapt to consider definitional questions, as it presumes that a conclusion has already been reached on such issues. The inability for s 5 considerations to be properly applied undermines certainty, and arguably encourages further reliance on non-legal reasoning such as examining the policy process.
Another implication of the failure to adequately define the right under s 19 is that by increasing the number of cases that reach the s 5 stage, a heavy justificatory burden will be placed upon the state.259 Demonstrating that a claim meets the justificatory criteria set out under the Oakes test is a significant onus.260 While the purpose of s 5 to facilitate a “culture of justification” is
255 Adams, above n 53, at 269.
256 Atkinson, above n 2, at [125].
257 Huscroft, above n 37, at 386. See also Huscroft, above n 44, at 699, where he notes the “unpredictable” nature of limitations provisions.
258 See Atkinson, above n 2, at [129] and Butler and Butler, above n 58, at [17.10.45].
259 See Huscroft, above n 44, at 711.
260 McIntyre, above n 1, at 765.
important, this does not mean that the state should be required to justify its policies in every instance. Given the significant challenges and constraints already associated with policymaking, those engaging in this process ought not to be subject to litigation unless there is an actual risk that protected rights have been breached. Adams notes that given the lack of normative content in the definition of the right under Atkinson, there is no valid reason for forcing the government to expend significant resources justifying their policies through litigation.261 While it can be argued that it is good have a strong justificatory burden on the state given the importance of protecting rights, this simply ignores the question of what the right actually is, and whether an overly broad definition even establishes a right worth protecting.
H. Reconsidering an Invidious Approach
While it is evident that a more coherent approach is needed in the application of s 19, there are still difficult questions as to how this is best achieved. This dissertation does not purport to provide an in-depth recommendation as to the approach that New Zealand ought to adopt. However, given the problems identified in relation to the material disadvantage test, there is a strong case for reconsidering an invidious approach to defining discrimination. Obviously, careful deliberation would need to be given to the components of a new test. The wording used in the White Paper to describe an invidious definition of discrimination as requiring something “unjustified, unreasonable or irrelevant” may have been important in the drafters’ view that the application of s 5 would render the distinction inconsequential.262 However, this terminology is likely be unhelpful, given that it would be ineffectual to apply the invidious approach if it simply meant an “unjustified” distinction, as this would leave no role for s 5.
Conversely, it would be worth reassessing how the wording of the Canadian test might provide valuable guidance for New Zealand, as a model which is more consistent with the purpose of discrimination, and allows the right to be meaningfully defined before assessing whether any limits upon it are justified. It is acknowledged that the Canadian approach to non- discrimination has not been without controversy.263 Its foray into the use of dignity as the
261 Adams, above n 53, at 267 and 269.
262 White Paper, above n 48, at [10.78].
263 See McIntyre, above n 1, at n 55. See also Sonia Lawrence “Section 15(1) at the Supreme Court 2001-2002: Caution and Conflict in Defining ‘The Most Difficult Right’” [2002] Sup Ct L Rev 103 at 110 and 115.
touchstone for determining a breach of s 15 following the notorious decision in Law v Canada was subject to significant criticism, largely due to the “vacuous” nature of the concept, which was seen as unclear, unpredictable, and overly burdensome for complainants.264 However, Canadian law has since moved away from a dignity-centred approach.265
A test for discrimination that requires demonstration of a distinction which perpetuates prejudice, historical disadvantage or stereotyping would be a useful starting point in considering how New Zealand’s anti-discrimination law could be reformed. There will undoubtedly be continuing challenges with such an approach, particularly given the inevitable moral judgements involved in applying anti-discrimination law. Additionally, it would be necessary to consider how such a test might need to be adapted in order to fit New Zealand’s unique context. However, a definition of this type would provide a more consistent framework for engaging in such analysis, whilst reflecting a better conceptualisation of the relationship between ss 5 and 19.
264 See Thomas MJ Bateman “Human dignity’s false start in the Supreme Court of Canada: equality rights and the Canadian Charter of Rights and Freedoms” (2012) 16 Int J Hum Rights 577.
265 See Kapp, above n 109.; and Butler and Butler, above n 58, at [17.11.1].
Conclusion
While the recognition of a right to freedom from discrimination commands widespread support, there are many complicating factors which give rise to differing views about what such protection ought to entail. This dissertation has sought to demonstrate that the current approach to this question in New Zealand law is unsatisfactory. Primarily, this is because the implementation of the material disadvantage test in Atkinson does not reflect a suitable understanding of the relationship between ss 5 and 19 of the Bill of Rights. By failing to adequately define the scope of the right to freedom from discrimination, it renders the finding of a limit on that right essentially meaningless. This leads to a situation where the right is either construed very broadly and therefore trivialised, or judges – in a conscious or unconscious effort to avoid this trivialisation – make ad hoc moral determinations in interpreting it, that are likely to be formed by their individual values and biases. Furthermore, the material disadvantage test also requires s 5 to go beyond its proper role of ascertaining whether a limit is justifiable, to effectively define what is meant by the right itself. In addition, more cases are able to reach the s 5 stage, requiring judges to engage in the policy analysis that this assessment tends to involve when there is no strong mandate for doing so, given the lack of weight in the establishment of a prima facie limit. Hence, a different approach is needed. Consideration should be given to adopting an invidious approach to defining discrimination, taking guidance from the Canadian model, as this would acknowledge the significance of the right protected under s 19, whilst keeping s 5 within the bounds of its assigned role under the Bill of Rights.
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B. Legislation
Human Rights Act 1993
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Human Rights Commission Act 1977
Disability Discrimination Act 1992 (Cth).
Canadian Charter of Rights and Freedoms, pt 1 of the Constitution Act 1982, being sch B to the Canada Act 1982 (UK)
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C. Treaties
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International Convention on the Elimination of All Forms of Racial Discrimination 660 UNTS 195 (opened for signature 21 December 1965, entered into force 4 January 1969)
International Covenant on Social and Economic Rights 993 UNTS 3 (opened for signature 19 December 1966, entered into force 3 January 1976).
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D. Book and Chapters in Books
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E. Journal Articles
Julia Adams “Breaking the Constitution: Discrimination Law, Judicial Overreach and Executive Backlash After Ministry of Health v Atkinson” [2016] NZ L Rev 255.
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Charlie Cox “The Majestic Equality of Disenfranchisement: Assessing the Right to Freedom From Discrimination in Light of the Ngaronoa Litigation” (2020) 51 VUWLR 27.
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G. Dissertations
Emma Leahy “Reconciling Rights: How should New Zealand courts approach the issue of conflicting rights?” (LLB (Hons) Dissertation, University of Otago, 2018).
Owen Wilkinson “Who cares about carers? The family carers saga and New Zealand’s intermediate constitution” (LLB (Hons) Dissertation, University of Otago, 2017).
H. Internet materials
Andrew Geddis “I think National just broke our constitution” (17 May 2013) Pundit< www.pundit.co.nz/content/i-think-national-just-broke-our-constitution >.
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<https://www.justice.govt.nz/justice-sector-policy/constitutional-issues-and-human- rights/human-rights/international-human-rights/international-covenant-on-civil-and-political- rights/>.
Office of the High Commissioner for Human Rights “Status of Ratification Interactive Dashboard” (21 February 2023) United Nations <https://indicators.ohchr.org/>.
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