Jobs, shops, flats and other areas of life where discrimination is illegal
Government bodies, public services, and schools
Are the government and public bodies allowed to discriminate?
New Zealand Bill of Rights Act 1990, s 19 Human Rights Act 1993, ss 20J, 21A
Generally, no. The Bill of Rights Act prevents the government and public bodies (like state-owned enterprises, district health boards and schools) from discriminating against you when you’re dealing with them. This applies to discrimination on any of the illegal grounds specified in the Human Rights Act 1993 (see: “Race, gender and other illegal grounds of discrimination”).
The rules against discrimination in the Bill of Rights apply to public bodies in all their activities and conduct. This is different from the rules against discrimination by private bodies and individuals under the Human Rights Act 1993, which apply only in particular areas of life, such as employment, education, and access to goods and services.
Exceptions for government and other public bodies
New Zealand Bill of Rights Act 1990, s 19(2) Human Rights Act 1993, ss 20L, 66, 73
The Bill of Rights contains the following exceptions, which allow the government and public bodies to discriminate on the illegal grounds in certain cases, or to otherwise act in discriminatory ways:
- Reasonable and justifiable discrimination – The government and other public bodies can discriminate if the particular policy or practice that discriminates is reasonable and demonstrably justified in a free and democratic society. However, that exception doesn’t apply to the following areas, so in these areas the public sector is on the same footing as private businesses and individuals:
- discrimination in employment
- sexual harassment, racial harassment and inciting racial disharmony
- victimising a person for exercising their rights under the Human Rights Act 1993 or under the Protected Disclosures Act 2000 (which protects whistle-blowers).
- Affirmative action – The government and other public bodies can discriminate if the particular policy or practice is done in good faith to assist a group that has been disadvantaged by discrimination.
