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Parental Leave and Employment Protection (Shared Leave) Amendment Bill (Consistent) [2023] NZBORARp 1 (19 January 2023)
Last Updated: 2 February 2023
19 January 2023
LEGAL ADVICE
LPA 01 01 24
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Parental Leave
and Employment Protection (Shared Leave) Amendment Bill
- We
have considered whether the Parental Leave and Employment Protection (Shared
Leave) Amendment Bill (the Bill), a member’s
Bill in the name of Nicola
Willis MP, is consistent with the rights and freedoms affirmed in the New
Zealand Bill of Rights Act 1990
(the Bill of Rights Act).
- The
Bill amends the Parental Leave and Employment Protection Act 1987 (the principal
Act) to allow parental leave split between partners
or spouses to be taken
concurrently to allow them to care for the child together. Section 71E of the
principal Act allows a person
who is entitled to parental leave (someone who is
pregnant, who has given birth, or who has taken permanent primary responsibility
for a child under 6) to transfer all or part of their parental leave entitlement
to a partner or spouse. The Bill amends the Act
to allow the partner or spouse
to take the transferred leave at the same time as the person who transferred the
leave, provided the
total leave taken by both partners or spouses does not
exceed the statutory entitlement.
- In
previous advice on the Parental Leave and Employment Protection Act 1987, we
have considered whether the paid parental leave scheme
gave rise to an issue of
discrimination on the grounds of sex and marital status under section 19(1) of
the Bill of Rights Act. We
concluded that, having regard to the degree of
deference that is appropriate when dealing with complex social policy issues,
the
discrimination could be justified in terms of section 5 of the Bill of
Rights Act.
- We
do not consider this amendment gives rise to any additional concerns under
section 19(1), as it does not meaningfully change anyone’s
entitlement to
parental leave. Instead, it merely provides greater flexibility as to how the
leave may be taken by those already
entitled to parental leave under the
principal Act.
- On
this basis, we have concluded that the Bill appears to be consistent with the
rights and freedoms affirmed in the Bill of Rights
Act.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
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