Changes to the Human Rights Act 1993

Guidelines for the Health and Disability Sector

Published in 2002 by the Ministry of Health
ISBN 0-478-25506-3 (Booklet)
ISBN 0-478-25507-1 (Internet)
HP 3554

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Contents

Introduction

What does the Human Rights Act 1993 do?

The Human Rights Amendment Act 2001

The new test of unlawful discrimination for government and public sector agencies

The Treaty of Waitangi

Assessing human rights compliance

Examples of potential areas of discrimination

Examples of discrimination which may be justified or not unlawful

What you need to do if you receive a complaint

Further advice and information on human rights issues


Introduction

Human rights legislation in New Zealand has recently undergone a series of changes. These came into effect on 1 January 2002 with the Human Rights Amendment Act. This Act has amended the Human Rights Act 1993. These changes have implications for providers of health and disability services within New Zealand. These guidelines are designed to help you to minimise risk under the Human Rights Act. These guidelines provide a summary of the changes – further sources of information on the changes are listed at the back of these guidelines.

These guidelines are designed for the Ministry of Health, District Health Boards (DHBs) and other health and disability sector organisations that receive public funding.

In summary, the changes to the Human Rights Act have:

• introduced the New Zealand Bill of Rights Act standard as the non-discrimination standard for most areas of government (excepting the areas of employment, racial and sexual harassment and victimisation. Here is a link to further information)
• expanded the publicly funded complaints process
• altered the structure and function of human rights institutions.

It is possible that the changes to the human rights legislation will result in the health and disability sector facing an increasing number of challenges under the Human Rights Act. Importantly, wherever policies and decisions to discriminate can be justified by evidence, risks associated with such discrimination are likely to be minimal. Evidence-based decisions on clinical grounds are unlikely to constitute unlawful discrimination.



What does the Human Rights Act 1993 do?

The Human Rights Act aims to enhance basic human rights protection in New Zealand by promoting freedom from discrimination. The Act prohibits discrimination against a person or group on the prohibited grounds of discrimination set out in section 21 of that Act.

The prohibited grounds are:

a.	sex (including pregnancy and childbirth)
b.	marital status
c.	religious belief
d.	ethical belief
e.	colour
f.	race
g.	ethnic/national origin
h.	disability
i.	age (16 and over)1
j.	political opinion
k.	employment status
l.	family status
m.	sexual orientation

Since the Human Rights Act was enacted in 1993, the government has had an exemption from this legislation. The exemption applied to government and any agencies (such as DHBs) acting on behalf of government. It should be noted that the provision of goods and services by hospitals and other providers in the sector has always been covered by the Human Rights Act.

The Human Rights Amendment Act 2001

Last year the Human Rights Act was amended partly because the government exemption to the Act was about to expire. Before the expiry of the exemption, the government took the opportunity to re-evaluate the overall framework of human rights protection in New Zealand, and to make some key changes to the structures, processes and institutions under the Human Rights Act.

The amendments to the Human Rights Act can be broadly split into the following two areas.

Introduction of the New Zealand Bill of Rights Act 1990 non-discrimination standard for most areas of government and public sector agencies

Part 1A of the Human Rights Act introduces the New Zealand Bill of Rights Act standard for most areas of government.
The New Zealand Bill of Rights Act standard now governs most discrimination by the public sector and agencies exercising ‘public functions’ conferred or imposed by law. This means that it includes the Ministry of Health, DHBs and is likely to include private providers who are receiving public funding.

The areas that are not included under the New Zealand Bill of Rights Act standard (Part 1A) are employment, racial and sexual harassment and victimisation. These are tested against the Human Rights Act standard (which is contained in Part 2 of the Act).2

The publicly funded complaints process is now extended to include complaints taken against government and public sector agencies.



Changes to human rights institutions

These include:

• making the Office of the Race Relations Conciliator part of the Human Rights Commission
• giving the Human Rights Commission a focus on human rights education and advocacy. Its function of ruling on human rights inconsistencies has been removed but it can still mediate disputes
• renaming the Complaints Review Tribunal the Human Rights Review Tribunal; this tribunal makes rulings on complaints under the Human Rights Act
• setting up the Office of Human Rights Proceedings (formerly the Proceedings Commissioner) independently of the Human Rights Commission.

The new test of unlawful discrimination for government and public sector agencies

For all ‘public’ functions and activities (such as health funding and provision) you now need to apply the test from section 19 of the New Zealand Bill of Rights Act.3 The test can be broken down into two component parts.

Is there discrimination?

Consider:

• Is there a differentiation on one of the prohibited grounds?
• Does that differentiation result in disadvantage or stigma to a person or group?

If the answer to these two questions is yes, then consider:

Is the discrimination justified?

To justify discrimination, you will need to demonstrate that the discrimination is reasonable in a free and democratic society. In addition, the discrimination must be ‘prescribed by law’. The term ‘prescribed by law’ means that it must be linked into a legal framework such as the New Zealand Public Health and Disability Act 2000 that is easily accessible and understandable.

If there is justification – for example you have evidence as to why a particular group should be targeted for services – then there should not be a problem. If there is no justification then there may be a problem.

To assess whether discrimination can be justified, you should consider:

• whether the discriminatory measure serves an important and significant objective
• whether the discrimination is likely to achieve that objective
• whether there is a less discriminatory way to achieve the objective
• whether there is good evidence to support the discrimination.

There is also an affirmative action clause in the Bill of Rights Act that allows for programmes that advance individuals or groups who have been disadvantaged because of unlawful discrimination (section 19(2)).

The new test means that your organisation, whether the Ministry of Health, a DHB or NGO, can be challenged under the Human Rights Act if you discriminate on a prohibited ground without an objective and rational justification.

The flow diagram sets out the steps you need to follow to assess human rights compliance when considering a new programme, service or measure.



The Treaty of Waitangi

The relationship between the Treaty of Waitangi and the two Acts (the Human Rights Act and the New Zealand Bill of Rights Act) has not been explicitly defined in those Acts. However, the Crown’s commitment to the Treaty of Waitangi for the health and disability sector has been made explicit in the New Zealand Public Health and Disability Act 2000 through sections 3, 4 and Part 3 of this Act.

In order to recognise and respect the principles of the Treaty of Waitangi, and with a view to improving health outcomes of Maori, Part 3 of the New Zealand Public Health and Disability Act provides for mechanisms to enable Mäori to contribute to decision-making on, and to participation in, the delivery of health and disability services.

DHBs have the key objective of reducing Mâori health disparities by improving Maori health outcomes.

The Treaty, and particularly the principle of protection, is also relevant in the area of affirmative action programmes implemented by the government. These programmes may be allowed under section 19(2) of the New Zealand Bill of Rights Act, and in giving effect to section 3(3)(b) of the New Zealand Public Health and Disability Act.

Assessing human rights compliance




Assessing human rights compliance (continued)




Examples of potential areas of discrimination

• Setting of priorities for funding of health or disability services.
• Decisions on access/exclusion criteria.
• Decisions to fund programmes or services (including some groups and omitting others).
• Employment or committee appointment policies.
• Scholarship or workforce assistance programme criteria.
• Access to buildings and facilities.

Examples of discrimination which may be justified or not unlawful

• Discrimination based on clear evidence of need/disadvantage of one group relative to other groups.
• Discrimination necessary to remedy historical disadvantage.
• Discrimination necessary to remedy historical discrimination (affirmative action).
• Discrimination authorised by statute (although authorisation must be quite clear).

What you need to do if you receive a complaint

If you receive a complaint you need to take the following steps.

1. Assess whether the complaint has national significance or involves the Ministry of Health or government policy. If so, notify and discuss the complaint with the Ministry of Health.

2. Note timeframes for response back to the Human Rights Commission and ensure these are observed.

3. Allocate relevant staff/managers to draft a response to the complaint.

4. Gather information from relevant parts of the organisation (such as clinicians) or, where necessary, from external sources.

5.Seek assistance from expert agencies such as the Ministry of Justice or from your own legal advisors where necessary. Advice may be required on:

• whether there is discrimination (a legal issue)
• what the objective, rational justifications are for that discrimination (mainly a non-legal issue)
• how to deal with the complaints process.

6. Form a strategic view (in discussion with the Ministry of Health if necessary) as to whether the complaint should be mediated by the Human Rights Commission or defended by the Human Rights Review Tribunal.

The Crown Law Office receives copies of all complaints made under the new Part 1A (whether against government or not) and may become involved at some stage in the defence of the complaint.



Further advice and information on human rights issues

The Ministry of Justice has recently published guidelines on the changes to the Human Rights Act entitled The Non-Discrimination Standards for Government and the Public Sector (Guidelines on how to apply the standards and who is covered). These are available in hard copy from the Ministry of Justice or on its website – www.justice.govt.nz.

The Human Rights Commission also has a range of pamphlets and resources available in hard copy or from its website – www.hrc.co.nz.

The following agencies are expert in the human rights field and are likely to be able to offer helpful and practical advice:

Human Rights Commission

PO Box 6751

Wellesley Street

Auckland

Tel: 0800 496 877

www.hrc.co.nz

Ministry of Justice

Bill of Rights Team

PO Box 180

Wellington

www.justice.govt.nz

Crown Law Office

Human Rights Team

PO Box 5012

Wellington www.crownlaw.govt.nz

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*The full text of this legislation is available at: http://www.legislation.govt.nz/
To find the legislation you require, once at the site click on the "Statutes" link then search by name under the A-Z tab or the Search tab.


1 It should be noted that although children under the age of 16 can lawfully be discriminated against on the ground of age, they cannot be lawfully discriminated against on any of the other grounds.

2 For more information on the Human Rights Act standard see guidelines produced by the Ministry of Justice.

3 Excluding employment, racial and sexual harassment and victimisation.

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Related information

Acts and Regulations