The issue is whether [facts] constitute discrimination against [person] under s 19 of BORA.
Section 19 is designed to ensure people are not treated differently unfairly, a core feature of a society based on democracy and freedom where each individual is valued as a person, worthy of dignity and respect.
The NZ Courts (Northern Regional Health Authority) have adopted a two-step approach to analyzing s 19, firstly establishing a prima facie breach of s 19 and then adopting a s 5 analysis to see if the breach is justified.
Law v Canada adopts an alternative 'purpose' approach, I will not follow that as the New Zealand HC in Atkinson distinguished that approach as (a) BORA has no guarantee of equality analogous to s 15(1) of the Canadian Charter (b) S 20L(2) of the HRA indicates a two step approach (c) S 21 of the HRA does not indicate any evaluative process However, the contextual factor discussion in Law and it's focus on dignity forms part of the s 5 analysis.
STEP 1 - IS IT DISCRIMINATION UNDER S19?
"Differential Treatment..."
In order to find Prima Facie discrimination under s 19 [person] must first establish a differential treatment or effect, that is either;
• A formal distinction based on a personal characteristic.
• A failure to take into account an existing disadvantage which has the effect of differential treatment.
Differential treatment must be identified as compared to finding a similarly situated comparator group. (Wilson, affirmed in NZ in NRHA). NOTE Natural starting point is that the claimants view is not always sufficient. The Court can't invent a group but can refine Law.
Therefore this reg/act has the effect of differential treatment.
"...on a prohibited ground..."
By virtue of BORA s 19(1) any ground of discrimination in the Human Rights Act 1993 is a prohibited ground. This reg/act discriminates on the ground of HRA s?? as [APPLICATION] NOTE INDIRECT s 65 - NHRA affirmed that broad approach required focusing on effect.
"...that disadvantages the complainant..."
This not limited to the motive but is a discriminatory impact, NHRA. Law v Canada places an emphasis on substantive discrimination based on the concept of dignity. CONTEXTUAL FACTORS - Law (a) Pre-existing disadvantage, incl stereotyping (if furthering stereotype enough for prima facie) (b) Historic disadvantage - important but not determinative, no presumption diff treatment is discriminatory (c) Don't need to establish a sociologically recognized group (d) No presumption that diff treatment is discrimination (e) Not disadvantaging if advantaging another group and if you are more advantaged relatively.
Positive Discrimination - Hugo Cannot achieve the goal of a fair society by insisting on equal treatment Look at policy considerations Can't complain not given an advantage to which you have no right
Dissent - Kriegler J Need to be based on factual circumstances not conjecture Blunt axe approach not appropriate Can serve to increase discrimination by reinforcing stereotypes
[Name] has been disadvantaged in that [App]
STEP 2 - LIMIT ON RIGHTS JUSTIFIED UNDER S 5?
The most recent and authoritative statement on s 5 is the modified Oakes test enumerated by Tipping J in Hansen. Tipping J notes that Parliament must be afforded a 'margin of appreciation' which will vary according to context.
Administrators have an understanding of issues Courts can't achieve, (Atkinson).
OAKES TEST
1. Does the limiting measure serve a purpose sufficiently important to justify curtailment of the right or freedom? (Threshold Issue)
McGrath J describes these as concerns that are pressing and substantial in a free and democratic society, Hansen This approach mirrors the 'good reason' in NHRA. APPLICATION Good reason- Reasonableness, not just economic necessity. Body must justify themselves Genuine need NHRA
2. (i) is the limiting measure rationally connected with its purpose? (Threshold issue)
(ii) does the limiting measure impair the right or freedom as little as possible? (Proportionality issue)
(iii) is the limit proportional to the importance of the objective? (Proportionality issue)
Conclusion
For a Regulation
In Drew the Courts invoked the presumption of consistency in finding that an empowering legislation implied that any regulation made under it must be consistent with BORA. I believe that this principle is likely to be applied here and the Courts would find [reg] ultra vires of [statute] and thus having no legal effect.
Or, for a Statute
Apply Hansen
Is there another meaning available on the language of the text? s6 of NZBORA
If not, then apply s 4.
This workshop was produced by Arthur Denning at Law Notes New Zealand
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