Last Updated: Friday, 30 September 2016, 16:22 GMT

New Zealand: Human Rights Act 1993 / Human Rights Amendment Act 1994

Publisher National Legislative Bodies / National Authorities
Publication Date 1 February 1994
Cite as New Zealand: Human Rights Act 1993 / Human Rights Amendment Act 1994 [New Zealand],  1 February 1994, available at: http://www.refworld.org/docid/3ae6b5500.html [accessed 30 September 2016]
Comments This is unofficial consolidation with the amendments made by the Human Rights Amendment Act 1994 (section 6, 7) and the Human Rights Amendment Act (No. 2) 1994. The Human Rights Amendment Act 1994 (sections 1 to 5) is attached at the end for reference.
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

Title

An Act to consolidate and amend the Race Relations Act 1971 and the Human Rights Commission Act 1977 and to provide better protection of human rights in New Zealand in general accordance with United Nations Covenants or Conventions on Human Rights

BE IT ENACTED by the Parliament of New Zealand as follows:

1.Short Title and commencement

(1)This Act may be cited as the Human Rights Act 1993.

(2)This Act shall come into force on the 1st day of February 1994.

2.Interpretation

In this Act, unless the context otherwise requires,-

"Commission" means the Human Rights Commission that is continued by section 4 of this Act:

"Commissioner" means a member of the Commission: "Complaints Division" means the Complaints Division referred to in section 12 (1) of this Act:

"Complaints Review Tribunal" or "Tribunal" means the Complaints Review Tribunal that is continued: by section 93 of this Act.

"Dispose", in sections 53 and 54 of this Act, includes sell, assign, lease, let, sublease, sublet, license, or mortgage, and agree to dispose:

"Employer", in Part II of this Act, includes-

(a)The employer of an independent contractor; and

(b)The person for whom work is done by contract workers pursuant to a contract between that person and the person who supplies those contract workers; and

(c)The person for whom work is done by an unpaid worker;-

and "employment", in Part II of this Act, has a corresponding meaning:

"Employment contract" has the meaning given to that term by section 2 of the Employment Contracts Act 1991:

"Minister" means the Minister of justice:

"Proceedings Commissioner" means the Proceedings Commissioner appointed under section 7 (1) (d) of this Act:

"Prohibited ground of discrimination" has the meaning given to it by section 21 of this Act:

"Race Relations Conciliator" or "Conciliator" means the Commissioner appointed to be the Race Relations Conciliator under section 7 (1) (b) of this Act:

"Relative", in relation to any person, means any other person who-

(a)Is related to the person by blood, marriage, affinity, or adoption; or

(b)Is wholly or mainly dependent on the person; or

(c)Is a member of the Person's household:

"Residential accommodation", in sections 53 and 54 of this Act, includes accommodation in a dwellinghouse, flat, hotel, motel, boarding-house, or camping ground: "Superannuation scheme" means any superannuation scheme, fund, or plan, or any provident fund, set up to confer, on its members or other persons, retirement or other benefits, such as accident, disability, sickness, or death benefits:

"Trustees", in relation to a superannuation scheme, includes the person or persons appointed to administer a superannuation scheme constituted under an Act of Parliament of New Zealand.

Cf. 1977, No. 49, ss. 2, 15 (13), 25 (5); 1983, No. 56, s. 4 (4); 1992, No. 16, s. 2 (3); 1993, No. 35, s. 3 (3)

3.Act to bind the Crown

This Act shall bind the Crown.

Cf 1971, No. 150, s. 2; 197 7, No. 49, s. 3

PART I - HUMAN RIGHTS COMMISSION

4.Continuation of Human Rights Commission-

(1)There shall continue to be a Human Rights Commission, which shall be the same body as the Human Rights Commission established under section 4 of the Human Rights Commission Act 1977.

(2)The Commission shall be a body corporate with perpetual succession and a common seal, and shall be capable. of acquiring, holding, and disposing of real and personal property, and of suing and being sued.

(3)Without limiting any other provision of this Act, the Commission shall have the rights, powers, and privileges of a natural person.

Cf. 1977. No. 49, s. 4

Functions and Powers of Commission

5.Functions and powers of Commission

(1)The functions of the Commission shall be-

(a)To promote, by education and publicity, respect for and observance of human rights:

(b)To encourage and co-ordinate programmes and activities in the field of human rights:

(c)To make public statements in relation to any matter affecting human rights, including statements promoting an understanding of, and compliance with, this Act:

(d)To prepare and publish, as the Commission considers appropriate, guidelines for the avoidance of acts or practices that may be inconsistent with, or contrary to, the provisions of this Act:

(c)To receive and invite representations from members of the public on any matter affecting human rights:

(f)To consult and co-operate with other persons and bodies concerned with the protection of human rights:

(g)To inquire generally into any matter, including any enactment or law, or any practice, or any procedure, whether governmental or non-governmental, if it appears to the Commission that human rights are, or may be, infringed thereby:

(h)To report to the Prime Minister from time to time on-

(i)Any matter affecting human rights, including the desirability of legislative, administrative, or other action to give better protection to human rights and to ensure better compliance with standards laid down in international instruments on human rights:

(ii)The desirability of New Zealand becoming bound by any international instrument on human rights:

(iii)The implications of any proposed legislation (including subordinate legislation) or proposed policy of the Government that the Commission considers may affect human rights:

(i)To examine, before the 31st day of December 1998, the Acts and regulations that are in force in New Zealand, and any policy or administrative practice of the Government of New Zealand:

(j)To determine, before the 31st day of December 1998, whether any of the Acts, regulations, policies, and practices examined under paragraph (i) of this subsection conflict with the provisions of Part 11 of this Act or infringe the spirit or intention of this Act,:

(k)To report to the Minister, before the close of the 31st day of December 1998, the results of the examination carried out under paragraph (i) of this subsection and the details of any determination made under paragraph (j) of this subsection:

(l)To make public statements in relation to any group of persons in, or who may be coming to, New Zealand, who are or may be subject to hostility, or who have been or may be brought into contempt, on the basis that that group consists of persons against whom discrimination is unlawful by virtue of section 61 of this Act:

(m)To do anything incidental or conducive to the performance of any of the functions set our in paragraphs (a) to (1) of this subsection:

(n)To exercise and perform such other functions, powers, and duties as are conferred or imposed on the Commission by or under this Act or any other enactment.

(2)The Commission may from time to time, in the Public interest or in the interests of any person or department or organisation, publish reports relating generally to the exercise of its functions under this Act or to any particular case or cases investigated under this Act, whether or not the matters to be dealt with any such report have been the subject of a report to the Minister or the Prime Minister.

Cf. 1977, No. 49, ss. 5 (1), (3), (5), 6 (1), (2), 28A, 78, (1); 1977, No. 49, ss. 78 (1), 86

6.Powers relating to declaratory judgments

(1)If at any time it appears to the Commission that it may be desirable to obtain a declaratory judgement or order of the High Court in accordance with the Declaratory judgments Act 1908, the Commission may refer the matter to the Proceedings Commissioner for the purpose of deciding whether proceedings under that Act should be instituted.

(2)In respect of any matter refer-red to him or her under subsection (1) of this section, the Proceedings Commissioner shall, notwithstanding anything to the contrary m the Declaratory judgments Act 1908 or any other enactment or rule of law, have sufficient standing to institute proceedings under that Act, whether or not the matter is otherwise within the functions, powers, or duties of the Proceedings Commissioner under this Act.

Cf. 1977, No. 49, s. 5A; 1983, No. 56, s. 3

Membership of Commission

7.Membership of Commission

(1)The Commission shall consist of the following Human Rights Commissioners:

(a)A Chief Commissioner:

(b)A Commissioner appointed to be the Race Relations Conciliator:

(c)The Privacy Commissioner appointed under the Privacy Act 1993:

(d)A Commissioner appointed to be the Proceedings Commissioner:

(e)Not more than 3 other Human Rights Commissioners.

(2)The Human Rights Commissioners appointed under paragraph (a) or paragraph (b) or paragraph (d) or paragraph (e) of subsection (1) of this section shall be appointed by the Governor-General on the recommendation of the Minister.

(3)The Race Relations Conciliator shall be a corporation sole with perpetual succession and a seal of office, and shall be capable of acquiring, holding, and disposing of real and personal property and of suing and being sued, and shall have the rights, powers, and privileges of a natural person.
(inserted by the Human Rights Amendment Act (No. 2) 1994)

Cf. 1977, No. 49, s. 7 (1) (a) (c), (ca), (d), (2); 1983, No. 56, s. 4 (1), (2); 1991, No. 132, s. 3 (1); 1993, No. 35, s. 2

8.Alternate Commissioners

(1)The Governor-General may, on the recommendation of the Minister, appoint as alternate Commissioners persons who may be designated as the alternate of Commissioner by either the Minister under subsection (2) of this section or the Chief Commissioner under subsection (3) of this section.

(2)In any case where-

(a)The Minister is satisfied that the Chief Commissioner is incapacitated by illness, absence, or other sufficient cause from performing the duties of his or her office; or

(b)The Chief Commissioner considers it is not proper or desirable that he or she should participate in any particular function or activity of the Commission, the Minister may designate a Commissioner or an alternate Commissioner to act as the Chief Commissioner during the Chief Commissioner's incapacity or in respect of that function or activity, as the case may be.

(3)In any case where-

(a)The Chief Commissioner is a Commissioner acting as the Chief Commissioner pursuant to a designation under subsection (2) of this section; or

(b)The Chief Commissioner is satisfied that any other Commissioner is incapacitated by illness, absence, or other sufficient cause from performing the duties of his or her office; or

(c)A judge who is for the time being holding office as a Commissioner, or the Privacy Commissioner, declines to participate in, or withdraws from participation in, any particular function or activity of the Commission under section 15 (2) or section 16 of this Act; or

(d)Any other Commissioner considers it is not proper or desirable that he or she should participate in any particular function or activity of the Commission, the Chief Commissioner may designate an alternate Commissioner to act as a Commissioner during the period the Chief Commissioner is acting as Chief Commissioner, or during the period of the Commissioner's incapacity, or in respect of that function or activity, as the case may be.

(4)Any alternate Commissioner designated under subsection (2) or subsection (3) of this section shall, while the alternate Commissioner acts as Chief Commissioner or as a Commissioner, be deemed to be the Chief Commissioner or the Commissioner in whose place the alternate Commissioner acts.

(5)No designation of an alternate Commissioner, and no act done by an alternate Commissioner, and no act done by the Commission while an alternate Commissioner is acting, shall in any proceedings be questioned on the ground that the occasion for the alternate Commissioner s designation had not arisen or had ceased.

Cf. 1977, No. 49, s. 7B; 1985, No. 23, s. 2

9.Criteria for appointment

In recommending persons for appointment as Commissioners or alternate Commissioners, the Minister shall have regard not only to their personal attributes but also to their knowledge of or experience in the different aspects of matters likely to come before the Commission.

Cf. 1977, No. 49, s. 7 (3); 1985, No. 23, s. 3 (1)

Functions of Commissioners

10.Functions of Chief Commissioner

(1)The functions of the Chief Commissioner shall be-

(a)To chair the Human Rights Commission:

(b)To be responsible for matters of administration in relation to the Commission:

(c)To allocate spheres of responsibility among the Commissioners:

(d)Subject to section 11 (b) of this Act, to designate Commissioners to be members of the Complaints Division.

(2)The Chief Commissioner shall also have such other functions, powers, or duties as are conferred or imposed on him or her by or under this Act or any other enactment.

Cf 1977, No. 49. s. 7 (1) (a), (5)

11.Functions of Race Relations Conciliator

The functions of the Race Relations Conciliator shall be-

(a)In matters of race relations, to exercise the functions and powers and perform the duties conferred by sections 5 and 6 of this Act unless in a particular case the Chief Commissioner and the Race Relations Conciliator agree that the Commission should exercise those functions or powers or perform those duties itself:

(b)To be a member of the Complaints Division in respect of complaints of, or investigations into,-

(i)Discrimination on the grounds of race, colour, or ethnic or national origins:

(ii)Discrimination on any other ground described in section 21 (1) of this Act in respect of which the Race Relations Conciliator and the Chief Commissioner have agreed that the Conciliator shall be a member of the Complaints Division:

(c)To be responsible for matters of administration in relation to the functions of the Race Relations Conciliator.

Cf. 197 1, No. 150, s. 13; 197 7, No. 49, s. 86

Complaints Division

12.Complaints Division

(1)The Complaints Division shall, subject to section 11 (b) of this Act, consist of the Race Relations Conciliator and not more than 3 other Commissioners designated from time to time by the Chief Commissioner under section 10 (1) (d) of this Act.

(2)The Complaints Division shall have the functions conferred on it by Part III of this Act.

(3)Subject to the provisions of this Act and of any regulations made wider this Act, the Complaints Division may regulate its procedure in such manner as it thinks fit.

13.Consideration of complaints and investigations by Commission

(1)At the request of the Complaints Division, the Commission shall consider any complaint or investigation within the Jurisdiction of the Complaints Division.

(2)The Commission may decide that any complaint or investigation within the jurisdiction of the Complaints Division shall be considered by the Commission.

(3)Where any complaint or investigation is considered by the Commission under subsection (1) or subsection (2) of this section, the Commission may give such directions to the Complaints Division as it thinks fit on the complaint or investigation.

Further Provisions on Commissioners and Alternate Commissioners

14.Service as Commissioners

No person shall be deemed to be employed in the service of Her Majesty for the purposes of the State Sector Act 1988 or the Government Superannuation Fund Act 1956 by reason of that person's appointment as a Commissioner or as an alternate Commissioner.

Cf. 197 1, No. 150, s. 34; 1977, No. 49, s. 7 (4); 1985, No. 23, s. 3 (1)

15.Appointment of Judge as Human Rights Commissioner

(1)The appointment of a judge as a Commissioner or alternate Commissioner or service by a Judge as a Commissioner or alternate Commissioner does not affect his or her tenure of Judicial office or his or her rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as a judge (including those in relation to superannuation), and, for all purposes, his or her service as a Commissioner or alternate Commissioner shall be taken to be service as a judge.

(2)Any judge who is for the time being holding office as a Commissioner may at any time decline to participate m, or withdraw from participation in, any particular function or activity of the Commission if the judge considers it incompatible with his or her Judicial office.

Cf. 1977, No. 49, ss. 7 (5A), 7A; 1983, No. 56, ss. 4 (3), 5; 1985, No. 23, s. 3 (1)

16.Privacy Commissioner may withdraw from participation

The Privacy Commissioner may at any time decline to participate in, or withdraw from participation in, any particular function or activity of the Commission if-

(a)He or she considers it incompatible with the function of the Privacy Commissioner or with the office of Privacy Commissioner; or

(b)In any case where the Privacy Commissioner is a judge, he or she considers it incompatible with his or her judicial office.

Cf. 1977, No. 49, s. 7 (7); 1991, No. 132, s. 3 (3)

17.Terms of office of Commissioners appointed under this Act

(1)Every Commissioner and alternate Commissioner appointed under this Act shall hold office for such term as the Governor-General on the recommendation of the Minister shall specify in his or her appointment, being a term not exceeding 5 years, but may from time to time be reappointed.

(2)Every Commissioner and alternate Commissioner appointed under this Act, unless he or she sooner vacates or is removed from office under section 18 of this Act, shall continue in office until his or her successor comes into office, notwithstanding that the term for which he or she was appointed may have expired.

Cf 197 1, No. 150, s. 12 (1), (2); 1977, No. 49, s. 8; 1985, No. 23, s. 3 (1)

18.Vacation of office

(1)A Commissioner or an alternate Commissioner a pointed under this Act may at any time resign office by delivering a notice in writing to that effect to the Minister.

(2)A Commissioner or an alternate Commissioner appointed under this Act shall he deemed to have vacated office- if he or she dies or is, under the Insolvency Act 1967, adjudged bankrupt.

(3)A Commissioner or an alternate Commissioner appointed under this Act may at any time be removed from office by the Governor-General for disability affecting performance of duty, neglect of duty, or misconduct, proved to the satisfaction of the Governor-General.

(4)Subsections (2) and (3) of this section do not apply (except in the event of the death of the Commissioner or alternate Commissioner) to a Commissioner or an alternate Commissioner who is a judge; but nothing in this subsection shall limit. the application of those sections to a Commissioner or alternate Commissioner who ceases to be a judge during his or her term of office as a Commissioner or alternate Commissioner.

(5)The powers and functions of the Commission shall not be affected by any vacancy in its membership.

Cf. 197 1, No. 150, s. 12 (3); 1977, No. 49, s. 9; 1983, No. 56, s. 6; 1985, No. 23, s. 3 (1)

19.Meetings of Commission

(1)Meetings of the Commission shall be held at such time's and places as the Commission or the Chairperson may from time to time appoint.

(2)The Chairperson, or any 3 Commissioners, may at any time call a special meeting of the Commission.

(3)At any meeting of the Commission the quorum necessary for the transaction of business shall be 3 Commissioners.

(4)The Chairperson shall preside at all meetings of the Commission at which he or she is present.In the absence of the Chairperson from any meeting, the Commissioners present shall appoint one of their number to be the Chairperson for the purposes of that meeting.

(5)At any meeting of the Commission the presiding member shad have a deliberative vote and, in the case of an equality of votes, shall also have a casting vote.

(6)All questions arising at any meeting of the Commission shall be decided by a majority of the -valid votes recorded thereon.

(7)Subject to the provisions of this Act and of any regulations made under this Act, the Commission may regulate its procedure in such manner as it thinks fit and may prescribe or approve forms for the purposes of this Act.

Cf. 1977, No. 49, s. 10

20.Further provisions relating to Commission and Race Relations Conciliator

The provisions of the First Schedule to this Act shall have effect in relation to the Commission and the Race Relations Conciliator.

PART II - UNLAWFUL DISCRIMINATION

21.Prohibited grounds of discrimination

(1)For the purposes of this Act, the prohibited grounds of discrimination are-

(a)Sex, which includes pregnancy and childbirth:

(b)Marital status, which means the status of being-

(i)Single; or

(ii)Married; or

(iii)Married but separated; or

(iv)A party to a marriage now dissolved; or

(v)Widowed; or

(vi)Living in a relationship in the nature of a marriage:

(c)Religious belief:

(d)Ethical belief, which means the lack of a religious belief, whether in respect of a particular religion or religions or all religions:

(e)Colour:

(f)Race:

(g)Ethnic or national origins, which includes nationality or citizenship:

(h)Disability, which means-

(i)Physical disability or impairment:

(ii)Physical illness:

(iii)Psychiatric illness:

(iv)Intellectual or psychological disability or impairment:

(v)Any other loss or abnormality of psychological, physiological, or anatomical structure or function:

(vi)Reliance on a guide dog, wheelchair, or other remedial means:

(vii)The presence in the body of organisms capable of causing illness:

(i)Age, which means,-

(i)For the purposes of sections 22 to 41 and section 70 of this Act and in relation to any different treatment based on age that occurs in the period beginning with the 1st day of February 1994 and ending with the close of the 31st day of January 1999, any age commencing with the a of 16 years and ending with the date on which persons of the age of the person whose age is in issue qualify for national superannuation under section 3 of the Social Welfare (Transitional Provisions) Act 1990 (irrespective of whether or not the particular person qualifies for national superannuation at that age or any other age):

(ii)For the purposes of sections 22 to 41 and section 70 of this Act, and in relation to any different treatment based on age that occurs on or after the 1st day of February 1999, any age commencing with the age of 16 years:

(iii)For the purposes of any other provision of Part II of this Act, any age commencing with the age of 16 years:

(j)Political opinion, which includes the lack of a particular political opinion or any political opinion:

(k)Employment status, which means-

(i)Being unemployed. or

(ii)Being a recipient of a benefit or compensation under the Social Security Act 1964 or the Accident Rehabilitation and Compensation Insurance Act 1992:

(l)Family status, which means-

(i)Having the responsibility for part-time care or full-time care of children or other dependants; or

(ii)Having no responsibility for the care of children or other dependants; or

(iii)Being married to, or being in a relationship in the nature of a marriage with, a particular person; or

(iv)Being a relative of a particular person:

(m)Sexual orientation, which means a heterosexual, homosexual, lesbian, or bisexual orientation.

(2)Each of the grounds specified in subsection (1) of this section is a prohibited ground of discrimination, for the purposes of this Act, if-

(a)It pertains to a person or to a relative or associate of a person; and

(b)It either

(i)Currently exists or has in the past existed; or

(ii)Is suspected or assumed or believed to exist or to have existed by the person alleged to have discriminated.

Discrimination in Employment Matters

22.Employment

(1)Where an applicant for employment or an employee is qualified for work of any description, it shall be unlawful for an employer, or any person acting or purporting to act on behalf of an employer,-

(a)To refuse or omit to employ the applicant on work of that description which is available; or

(b)To offer or afford the applicant or the employee less favourable terms of employment, conditions of work, superannuation or other fringe benefits, and opportunities for training, promotion, and transfer than are made available to applicants or employees of the same or substantially similar capabilities employed in the same or substantially similar circumstances on work of that description; or

(c)To terminate the employment of the employee. or subject the employee to any detriment, in circumstances in which the employment of other employees employed on work of that description would not be terminated, or in which other employees employed on work of that description would not be subjected to such detriment; or

(d)To retire the employee, or to require or cause the employee to retire or resign,-

by reason of any of the prohibited grounds of discrimination.

(2)It shall be unlawful for any person concerned with procuring employment for other persons or procuring employees for any employer to treat any person seeking employment differently from other persons in the same or substantially similar circumstances by reason of any of the prohibited grounds of discrimination.

Cf. 1977, No. 49, s. 15 (1), (2); 1992, No. 16, s. 3

23.Particulars of applicants for employment

It shall be unlawful for any person to use or circulate any form of application for employment or to make any inquiry of or about any applicant for employment which indicates, or could reasonably be understood as indicating, an intention to commit a breach of section 22 of this Act.

Cf. 1977, No. 49, s. 18; 1992, No. 16, s. 7

Exceptions in Relation to Employment Matters

24.Exception in relation to crews of ships and aircraft

Nothing in section 22 of this Act shall apply to the employment or an application for employment of a person on a ship or aircraft, not being a New Zealand ship or aircraft, if the person employed or seeking employment was engaged or applied for it outside New Zealand.

Cf. 1977, No. 49, s. 15 (8)

25.Exception in relation to work involving national security

(1)Nothing in section 22 of this Act shall apply to any restrictions on the employment of any person on work involving the national security of New Zealand-

(a)BY reference to his or her-

(i)Religious or ethical belief; or

(ii)Political opinion; or

(iii)Disability, within the meaning of section 21 (1) (h) (iii) or section 21 (1) (h) (iv) of this Act; or

(iv)Family status, within the meaning of section 21 (1) (1) (iii) or section 21 (1) (1) (iv) of this Act; or

(v)National origin; or

(b)BY reference to the national origin of any relative of that person.

(2)It shall not be a breach of section 22 of this Act to decline to employ a person under the age of 20 years on work involving the national security of New Zealand where that work requires a secret or top secret security clearance.

Cf. 1977, No. 49, s. 15 (10)

26.Exception in relation to work performed outside New Zealand

Nothing in section 22 of this Act shall prevent different treatment based on sex, religious or ethical belief, or age if the duties of the position in respect of which that treatment is accorded-

(a)Are to be performed wholly or mainly outside New Zealand; and

(b)Are such that, because of the laws, customs, or practices of the country in which those duties are to be performed, they are ordinarily carried out only by a person who is of a particular sex or religious or ethical belief, or who is in a particular age group.

Cf. 1977, No. 49, ss. 15 (9), 15A (1) (b); 1992, No. 16, s. 4

27.Exceptions in relation to authenticity and privacy

(1)Nothing in section 22 of this Act shall prevent different treatment based on sex or age where, for reasons of authenticity, being of a particular sex or age is a genuine occupational qualification for the position or employment.

(2)Nothing in section 22 of this Act shall prevent different treatment based on sex. religious or ethical belief, disability, age, political opinion. or sexual orientation where the position is one of domestic employment in a private household.

(3)Nothing in section 22 of this Act shall prevent different treatment based on sex where-

(a)The position needs to be held by one sex to preserve reasonable standards of privacy; or

(b)The nature or location of the employment makes it impracticable for the employee to live elsewhere than in premises provided by the employer, and-

(i)The only premises available (being premises in which more than one employee is required to sleep) are not equipped with separate sleeping accommodation E each sex; and

(ii)It is not reasonable to expect the employer to equip those premises with separate accommodation, or to provide separate premises, for each sex.

(4)Nothing in section 22 of this Act shall prevent different treatment based on sex, race, ethnic or national origins, or sexual orientation where the position is that of a counsellor on highly personal matters such as sexual matters or the prevention of violence.

(5)Where, as a terms or condition of employment, a position ordinarily obliges or qualifies the holder or that position to live in premises provided by the employer, the employer does not commit a breach of section 22 of this Act by omitting to apply that term or condition in respect of employees of a particular sex or marital status if in all the circumstances it is not reasonably practicable for the employer to do so.

Cf. 1977, No. 49, ss. 15 (3), 15A (1) (a); 1992, No. 16, s. 4

28.Exceptions for purposes of religion

(1)Nothing in section 22 of this Act shall prevent different treatment based on sex where the position is for the purposes of an organised religion and is limited to one sex so as to comply with the doctrines or rules or established customs of the religion.

(2)Nothing in section 22 of this Act shall prevent different treatment based on religious or ethical belief where-

(a)That treatment is accorded under section 65 of the Private Schools Conditional Integration Act 1975; or

(b)The sole or principal duties of the position (not being a position to which section 65 of the Private Schools Conditional Integration Act 1975 applies)-

(i)Are, or are substantially the same as, those of a clergyman, priest, pastor, official, or teacher among adherents of that belief or otherwise involve the propagation of that belief, or

(ii)Are those of a teacher in a private school; or

(iii)Consist of acting as a social worker on behalf of an organisation whose members comprise solely or principally adherents of that belief. (3) Where a religious or ethical belief requires its adherents to follow a particular practice, an employer must accommodate the practice so long as any adjustment of the employer's activities required to accommodate the practice does not unreasonably disrupt the employer's activities.

Cf. 1977, No. 49, s. 15 (6), (7)

29.Further exceptions in relation to disability

(1)Nothing in section 22 of this Act shall prevent different treatment based on disability where

(a)The position is such that the person could perform the duties of the position satisfactorily only with the aid of special services or facilities and it is not reasonable to expect the employer to provide those services or facilities; or

(b)The environment in which the duties of the position are to be performed or the nature of those duties, or of some of them, is such that the person could perform those duties only with a risk of harm to that person or to others, including the risk of infecting others with an illness, and it is not reasonable to take that risk.

(2)Nothing in subsection (1) (b) of this section shall apply if the employer could, without unreasonable disruption, take reasonable measures to reduce the risk to a normal level.

(3)Nothing in section 22 of this Act shall apply to terms of employment or conditions of work that are set or varied after taking into account-

(a)Any special limitations that the disability of a person imposes on his or her capacity to carry out the work; and

(b)Any special services or facilities that are provided to enable or facilitate the carrying out of the work.

30.Further exceptions in relation to age

(1)Nothing in section 22 (1) (a) or section 22 (1) (d) of this Act shall apply in relation to any position or employment where being Of a particular age or m a particular age group is a genuine occupational qualification for that position or employment, whether for reasons of safety or for any other reason.

(2)Nothing in section 22 (1) (b) of this Act shall prevent payment of a person at a lower rate than another person employed in the same or substantially similar circumstances where the lower rate is paid on the basis that the firstmentioned person has not attained a particular age, not exceeding 20 years of age.

(3)Nothing in section 22 (1) (a) of this Act shall prevent preferential treatment based on age accorded to persons who are to be paid in accordance with subsection (2) of this section.

Cf. 1977, No. 49, s. 15A (2)-(4); 1992, No. 16, s. 4

31.Exception in relation to employment of a political nature

Nothing in section 22 of this Act shall prevent different treatment based on political opinion where the position is one as-

(a)A political adviser or secretary to a member of Parliament; or

(b)A political adviser to a member of a local authority; or

(c)A political adviser to a candidate seeking election to the House of Representatives or to a local authority within the meaning of the Local Elections and Polls Act 1976; or

(d)A member of the staff of a political party.

32.Exception in relation to family status

Nothing in section 22 of this Act shall prevent restrictions imposed by an employer-

(a)On the employment of any person who is married to, or living in a relationship in the nature of marriage with, or who is a relative of, another employee if-

(i)There would he a reporting relationship between them; or

(ii)There is a risk of collusion between them to the detriment of the employer; or

(b)On the employment of any person who is married to, or living in a relationship in the nature of marriage with, or who is a relative of, an employee of another employer if there is a risk of collusion between them to the detriment of that person's employer.

33.Armed Forces

Nothing in section 22 of this Act shall prevent preferential treatment based on sex being given within the Armed Forces to any member of those forces who has the duty of serving in an active combat role in those forces.

Cf. 197 7, No. 49, s. 16 (2) (b)

34.Regular forces and Police

(1)Nothing in section 22 (1) (c) or section 22 (1) (d) of this Act shall prevent the Chief of Defence Force from instituting, under section 57A of the Defence Act 1990, the discharge or release of a member of the regular forces.

(2)Nothing in section 22 (1) (c) or section 22 (1) (d) of this Act shall prevent the Commissioner of Police from instituting, under section 57A of the Police Act 1958, the removal of a member of the Police.

35.General qualification on exceptions

No employer shall be entitled, by virtue of any of the exceptions in this Part of this Act, to accord to any person in respect of any position different treatment based on a. prohibited ground of discrimination even though some of the duties of that position would fall within any of those exceptions if, with some adjustment of the activities of the employer (not being an adjustment involving unreasonable disruption of the activities of the employer), some other employee could carry out those particular duties.

Cf 1977, No. 49, s. 15 (4)

Discrimination in Partnerships

36.Partnerships

(1)It shall be unlawful for a firm, or for persons jointly promoting the formation of a firm,-

(a)To refuse or to omit to offer a person admission to the firm as a partner; or

(b)To offer or afford a person less favourable terms and conditions as a partner than are made available to other members or prospective members of the firm,-

by reason of any of the prohibited grounds of discrimination.

(2)It shall be unlawful for a firm-

(a)To deny any partner increased status in the firm or an increased share in the capital or profits of the firm; or

(b)To expel any partner from the firm or to subject any partner to any other detriment,-

by reason of any of the prohibited grounds of discrimination.

(3)Nothing in subsection (1) or subsection (2) of this section shall prevent the fixing of reasonable terms and conditions in relation to a partner or prospective partner who, by reason of disability or age,-

(a)Has a restricted capacity to participate or to continue to participate in the partnership; or

(b)Requires special conditions if he or she is to participate or to continue to participate in the partnership.

Cf. 1977, No. 49, s. 19; 1992, No. 16. s. 8

Discrimination by Industrial and Professional Associations, Qualifying Bodies, and Vocational Training Bodies

37.Organisations of employees or employers and professional and trade associations

(1)It shall be unlawful for an organisation to which this section applies, or for person acting or purporting to act on behalf of any such organisation,-

(a)To refuse or omit to accept any person for membership; or

(b)To offer any person less favourable terms of membership and less Favourable access to any benefits, facilities, or services, including the right to stand for election and hold office in the organisation, than would otherwise be made available; or

(c)To deprive a person of membership, or suspend him or her, in circumstances m which other persons would not be deprived of membership or suspended, by reason of any of the prohibited grounds of discrimination.

(2)Nothing in this section shall prevent an organisation to which this section applies from charging different fees to persons in different age groups.

(3)This section applies to an organisation of employees, an organisation of employers, or any other organisation that exists for the purposes members who carry Ion a particular profession, trade, or calling.

Cf. 1977, No. 49, s. 20; 1992, No. 16, s. 9

38.Qualifying bodies

(1)It shall be unlawful for an authority or body empowered to confer an approval, authorisation, or qualification that is needed for, or facilitates, engagement in a profession, trade, or calling, or an person acting or purporting to act on behalf of any such authority or body,

(a)To refuse or omit to confer that approval, authorisation, or qualification on a person; or

(b)To confer that approval, authorisation, or qualification on less favourable terms and conditions than would otherwise be made available; or

(c)To withdraw that approval, authorisation, or qualification or vary the terms on which it is held, in circumstances in which it would not otherwise be withdrawn or varied,-

by reason of any of the prohibited grounds of discrimination. (2) For the purposes or this section "confer" includes renew or extend.

Cf. 197 7, No. 49, s. 21 (1), (3); 1992, No. 16, s. 10 (1)

39.Exceptions in relation to qualifying bodies

(1)Nothing in section 38 of this Act shall apply where the authorisation or qualification is needed for, or facilitates engagement in, a profession or calling for the purposes of an organised religion and is limited to one sex or to persons of that religious belief so as to comply with the doctrines or rules or established customs of that religion.

(2)Nothing in section 38 of this Act shall prevent different treatment based on disability where-

(a)The person seeking or holding the approval, authorisation, or qualification is not, by reason of that person's disability, able to perform the duties required of a person who holds the approval, authorisation, or qualification; or

(b)The environment in which the duties required of a person who holds the approval, authorisation, or qualification are to be performed or the nature of those duties, or of some of them, are such that, if that approval, authorisation, or qualification were granted to or retained by the person with a disability, there would be a risk of harm to that person or others, including the risk of infecting others with an illness, and it is not reasonable to take that risk; or

(c)Conditions placed on the granting of the approval, authorisation, or qualification to any person or on the retention of the approval, authorisation, or qualification by any person are reasonably related to the disability of that person.

(3)Nothing in section 38 of this Act shall apply where-

(a)The authority or body imposes a reasonable and appropriate minimum age under which the approval, authorisation, or qualification will not be conferred; or

(b)The authority or body Imposes reasonable and appropriate terms and conditions on the grant or retention of the approval, authorisation, or qualification by reason of the age of the person seeking or holding it.

1977, No. 49, s. 21 (2), (2A); 1992, No. 16, s. 10 (2)

40.Vocational training bodies

It shall be unlawful for any organisation or association which has as its function or one of its principal functions the provision of training, or facilities or opportunities for training (Including facilities or opportunities by way of financial grants), that would help to fit a person for any employment, or for any person acting or purporting to act on behalf of any such organisation or association,-

(a)To refuse or omit to provide training, or facilities or opportunities for training; or

(b)To provide training, or facilities or opportunities for training, on less favourable terms and conditions than would otherwise be made available; or

(c)To terminate training, or facilities or opportunities for training,-

by reason of any of the prohibited grounds of discrimination.

Cf 1977, No. 49. s. 22 (1): 1992. No. 16, s. 11 (1)

41.Exceptions in relation to vocational training bodies

(1)Nothing in section 40 of this Act shall prevent an organisation or association from affording persons preferential access to facilities for training that would help to fit them for employment where it appears to that organisation or association that those persons are In special need of training by reason of the period for which they have not been engaged in regular full-time employment.

(2)Subject to subsection (3) of this section, nothing in section 40 of this Act shall apply where a person's disability is such that there would be a risk of harm to that person or to others, including the risk of infecting others with an illness, if that person were to be provided with training, or facilities or opportunities for training, and it is not reasonable to take that risk.

(3)Nothing in subsection (2) of this section shall apply if the organisation or association providing training, or facilities or opportunities for training, could, without unreasonable disruption, take reasonable measures to reduce the risk to a normal level.

(4)Nothing in section 40 of this Act shall prevent an organisation or association from providing training, or facilities or opportunities for training (including facilities or opportunities by way of financial grants), only for persons a particular age or in a particular age group.

(5)Nothing in section 40 of this Act shall prevent the making of financial grants by an organisation or association only to persons above a particular age or in a particular age group.

(6)Nothing in section 40 of this Act shall prevent an organisation or association from charging different fees to persons in different age groups.

Cf. 1977, No. 49, s. 22 (3), (4), (5), (6); 1992, No. 16, s. 11 (3)

Discrimination in Access to Places, Vehicles, and Facilities

42.Access by the public to places, vehicles, and facilities

(1)it shall be unlawful for any person-

(a)To refuse to allow any other person access to or use of any place or vehicle which members of the public are entitled or allowed to enter or use; or

(b)To refuse any other person the use of any facilities in that place or vehicle which are available to members of the public; or

(c)To require any other person to leave or cease to use that place or vehicle or those facilities,-

by reason of any of the prohibited grounds of discrimination.

(2)In this section the term "vehicle" includes a vessel, an aircraft, or a hovercraft.

Cf 1977, No. 49, s. 23 (1), (3)

43.Exceptions in relation to access by the public to places, vehicles, and facilities

(1)Section 42 of this Act shall not prevent the maintenance of separate facilities for each sex on the ground of public decency or public safety.

(2)Nothing in section 42 of this Act requires any person to provide for any person, by reason of the disability of that person, special services or special facilities to enable any such person to gain in access to or use any place or vehicle when it would not be reasonable to require the provision of such special services or facilities.

(3)Nothing in subsection (2) of this section limits the provisions of section 25 of the Disabled Persons Community Welfare Act 1975.

(4)Subject to subsection (5) of this section, nothing in section 42 of this Act shall apply where the disability of a person is such that there would be a risk of harm to that person or to others, including the risk of infecting others with an illness, if that person were to have access to or use of any place or vehicle and it is not reasonable to take that risk.

(5)Subsection (4) of this section shall not apply if the person in charge of the place, vehicle, or facility could, without unreasonable disruption, take reasonable measures to reduce the risk to a normal level.

Cf. 1977, No. 49, s. 23 (2)

Discrimination in Provision of Goods and Services

44.Provision of goods and services

(1)It shall be unlawful for any person who supplies goods, facilities, or services to the public or to any section of the public-

(a)To refuse or fad on demand to provide any other person with those goods, facilities, or services; or

(b)To treat any other person less favourably in connection with the provision of those goods, facilities, or services than would otherwise be the case, by reason of any of the prohibited grounds of discrimination.

(2)For the purposes of subsection (1) of this section, but without limiting the meaning of the term "goods", "facilities", and "services" in that subsection, the term "facilities" includes facilities by way of banking or insurance or for grants, loans, credit, or finance.

(3)Where any club, or any branch or affiliate of any club, that grants privileges to members of any other club, branch, or affiliate refuses or fads on demand to provide those privileges to any of those members, or treats any of those members less favourably in connection with the provision of those privileges than would otherwise be the case, by reason of any of the prohibited grounds of discrimination, that club, branch, or affiliate shall be deemed to have committed a breach of this section.

(4)Subject to subsection (3) of this section, nothing in this section shall apply to access to membership of a club or to the provision of services or facilities to members of a club.

Cf. 1977, No. 49, s. 24 (1)-(3)

45.Exception in relation to courses and counselling

Nothing in section 44 of this Act shall prevent the holding of courses, or the provision of counselling, restricted to persons of a particular sex, race, ethnic or national origin, or sexual orientation where highly personal matters, such as sexual matters or the prevention of violence, are involved.

46.Exception in relation to public decency or safety

Section 44 of this Act shall not apply to the maintenance or provision of separate facilities or services for each sex on the ground of public decency or. public safety.

Cf. 1977, No. 49. s. 24 (4)

47.Exception in relation to skill

Where the nature of a skill varies according to whether it is exercised in relation to men or women, a person does not commit a breach of section 44 of this Act by exercising the skill in relation to one sex only, in accordance with that person's normal practice.

Cf. 1977, No. 49. s. 24 (5)

48.Exception in relation to insurance

(1)It shall not be a breach of section 44 of this Act to offer or provide annuities, life insurance policies. accident insurance policies, or other policies of insurance, whether for individual 'persons or groups of persons, on different terms or conditions for each sex or persons with a disability or for persons of different ages if the different treatment-

(a)Is based on-

(i)Actuarial or statistical data, upon which it is reasonable to rely, relating to life-expectancy, accidents, or sickness; or

(ii)Where no such data is available in respect of persons with it disability, reputable medical or actuarial advice or opinion, upon which it is reasonable to rely, whether or not contained in an under-writing manual; and

(b)Is reasonable having regard to the applicability of the data or advice or opinion, and of any other relevant factors, to the particular circumstances.

(2)In assessing, for the purposes of this section, whether it is reasonable to rely on any data or advice or opinion, and whether different treatment is reasonable, the Commission or the Complaints Division may-

(a)Require justification to be provided for reliance on the data or advice or opinion and for the different treatment; and

(b)Request the views of the Government Actuary on the justification for the reliance and for the different treatment.

Cf. 1977, No. 49, s. 24 (6)

49.Exception in relation to sport

(1)Subject to subsection (2) of this section, nothing in section 44 of this Act shall prevent the exclusion of persons of one sex from participation in any competitive sporting activity m which the strength, stamina, or physique of competitors is relevant.

(2)Subsection (1) of this section does not apply in relation to the exclusion of persons from participation in-

(a)The coaching of persons engaged in any sporting activity: or

(b)The umpiring or refereeing of any sporting activity; or

(c)The administration of any sporting activity; or

(d)Sporting activities by persons who have not attained the age of 12 years.

(3)It shall not be a breach of section 44 of this Act to exclude any person from any competitive sporting event or activity if that person's disability is such that there would be a risk of harm to that person or to others, including the risk of infecting others with an illness. if that person were to take part in that competitive sporting event or activity and it is not reasonable to take that risk.

(4)It shall not be a breach of section 44 of this Act to conduct competitive sporting events or activities in which only persons with a particular disability or age qualification may take part.

50.Exception in relation to travel services

It shall not be a breach of section 44 of this Act to provide group travel services which are expressed to be solely for the benefit of persons in a particular age group.

51.Exception in relation to reduced charges

It shall not be a breach of section 44 of this Act to provide goods, services, or facilities at a reduced fee, charge, or rate on the ground of age, disability, or employment status, whether or not there are conditions applicable to the reduced fee, charge, or rate.

52.Exception in relation to disability

It shall not be a breach of section 44 of this Act for a person who supplies facilities or services-

(a)To refuse to provide those facilities or services to any person if-

(i)That person's disability requires those facilities or services to be provided in a special manner; and

(ii)The person who supplies the facilities or services cannot reasonably be expected to provide them in that special manner; or

(b)To provide those facilities or services to any person on terms that are more onerous than those on which they are made available to other persons, if-

(i)That person's disability requires those facilities or services to be provided hi a special manner; and

(ii)The person who supplies the facilities or services cannot reasonably be expected to provide them without requiring more onerous terms.

Cf Equal Opportunity Act 1984, s. 29 (2) (Victoria)

Discrimination in Provision of Land, Housing and Other Accommodation

53.Land, housing, and other accommodation

(1)It shall be unlawful for any person, on his or her own behalf or on behalf or purported behalf of any principal,-

(a)To refuse or fail to dispose of any estate or interest in land or any residential or business accommodation to any other person; or

(b)To dispose of such an estate or interest or such accommodation to any person on less favourable terms and conditions than are or would be offered to other persons; or

(c)To treat any person who is seeking to acquire or has acquired such an estate or interest or such accommodation differently from other persons in the same circumstances; or

(d)To deny any person, directly or indirectly, the right to occupy any land or any residential or business accommodation; or

(e)To terminate any estate or interest in land or the right of any person to occupy any land or any residential or business accommodation,-

by reason of any of the prohibited grounds of discrimination.

(2)It shall be unlawful for any person, on his or her own behalf or on behalf or purported behalf of any principal, to impose or seek to impose on any other person any term or condition which limits, by reference to any of the prohibited grounds of discrimination the persons or class of persons who may be the licensees or invitees of the occupier of any land or any residential or business accommodation.

Cf. 1977. No. 49. s. 25 (1), (2)

54.Exception in relation to shared residential accommodation

Nothing in section 53 of this Act shall apply to residential accommodation which is to be shared with the person disposing of the accommodation, or on whose behalf it is disposed of.

Cf. 1977, No. 49. s. 25 (4)

55.Exception in relation to hostels, institutions, etc.

Nothing in section 53 of this Act shall apply to accommodation in any hostel or in any establishment (such as a hospital, club, school, university. religious institution, or retirement Village), or m any part of a hostel or any such establishment, where accommodation is provided only for persons of the same sex, marital status, or religious or ethical belief, or for persons with a particular disability, or for persons in a particular age group.

Cf. 1977, No. 49. s. 25 (3)

56.Further exception in relation to disabililty

(1)Subject to subsection (2) of this section, nothing in section 53 of this Act shall apply, in relation to any accommodation, if the disability of the person is such that there would be a risk of harm to that person or others, including the risk of infecting others with an illness, if that person were to live in that accommodation and it is not reasonable to take that risk.

(2)Subsection (1) of this section shall not apply if the person in charge of the accommodation could, without unreasonable disruption, take reasonable measures to reduce the risk to a normal level.

Discrimination in Access to Educational Establishments

57.Educational establishments

(1)it shall be unlawful for an educational establishment, or the authority responsible for the control of an educational establishment, or any person concerned in the management of an educational establishment or in teaching at an educational establishment,-

(a)To refuse or fall to admit a person as a pupil or student;

(b)To admit a person as a pupil or a student on less favourable terms and conditions than would otherwise be made available; or

(c)To deny or restrict access to any benefits or services provided by the establishment; or

(d)To exclude a person as a pupil or a student or subject him or her to any other detriment,-

by reason of any of the prohibited grounds of discrimination.

(2)In this section "educational establishment" includes an establishment offering any form of training or instruction and an educational establishment under the control of an organisation or association referred to in section 40 of this Act.

Cf. 1977, No. 49, s. 26 (1), (3)

58.Exceptions in relation to establishments for particular groups

(1)An educational establishment maintained wholly or principally for students of one sex, race, or religious belief, or for students with a particular disability, or for students m a particular age group, or the authority responsible for the control of any such establishment, does not commit a breach of section 57 of this Act by refusing to admit students of a different sex, race, or religious belief, or students not having that disability or not being in that age group.

(2)Nothing in section 57 of this Act shall prevent an organisation or association from affording persons preferential access to facilities for training that would help to fit them for employment where it appears to that organisation or association that those persons are in special need of training by reason of the period for which they have not been engaged in regular full-time employment.

(3)Nothing in section 57 of this Act shall prevent an organisation or association from providing training, or facilities or opportunities for training (including facilities or opportunities by way of financial grants), only for persons above a particular age or in a particular age group.

(4)Nothing in section 57 of this Act shall prevent the making of financial grants by an organisation or association only to persons above a particular age or in a particular age group.

(5)Nothing in section 57 of this Act shall prevent an organisation or association from charging different fees to persons in different age groups.

Cf. 1977 No. 49, s. 26 (2)

59.Exception in relation to courses and counselling

Nothing in section 57 of this Act shall prevent the holding or provision, at any educational establishment, of courses or counselling restricted to persons of a particular sex, race, ethnic or national origin, or sexual orientation, where highly personal matters, such as sexual matters or the prevention of violence, are involved.

60.Further exceptions in relation to disability-

(1)Nothing in section 57 of this Act makes it unlawful to refuse admission to an educational establishment to a person whose disability is such that that person requires special services or facilities that in the circumstances cannot reasonably be made available (being services or facilities that are required to enable the person to participate in the educational programme of that establishment or to enable the person to derive substantial benefits from that programme).

(2)Subject to subsection (3) of this section, nothing in section 57 of this Act shall apply where the person's disability is such that there would be a risk of harm to that person or to others, including the risk of infecting others with an illness, if that person were to be admitted to an educational establishment and it is not reasonable to take that risk.

(3)Nothing in subsection (2) of this section shall apply if the person in charge of the educational establishment could, without unreasonable disruption, take reasonable measures to reduce the risk to a normal level.

Cf Equal Opportunity Act 1984, s. 28 (5) (Victoria)

Other Forms of Discrimination

61.Racial disharmony

(1)It shall be unlawful for any person-

(a)To publish or distribute written matter which is threatening, abusive, or insulting, or to broadcast by means of radio or television words which are threatening, abusive, or insulting; or

(b)To use in any public place as defined in section 2 (1) of the Summary Offences Act 1981, or within the hearing of persons in any such public place, or at, my meeting to which the public are invited or have access, words which are threatening, abusive, or insulting or

(c)To use in any place words which are threatening, abusive, or insulting if the person using the words knew or ought to have known that the words were reasonably likely to be published in a newspaper. magazine, or periodical or broadcast by means of radio or television,-

being matter or words likely to excite hostility against or bring into contempt any group of persons in or who may be coming to New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.

(2)it shall not be a breach of subsection (1) of this section to publish in a newspaper, magazine, or periodical or broadcast by means of radio or television a report relating to the publication or distribution of matter by any person or the broadcast or use of words by any person, if the report of the matter or words accurately conveys the intention of the person who published or distributed the matter or broadcast or used the words.

(3)For the purposes of this section,-

"Newspaper" means a paper containing public news or observations on public news, or consisting wholly or mainly of advertisements, being a newspaper that is published periodically at intervals not exceeding 3 months:

"Publishes" or "distributes" means publishes or distributes to the public at large or to any member or members of the public:

"Written matter" includes any writing. sign. visible representation, or sound recording.

Cf. 1971, No. 150, S. 9A; 1977, No. 49, s. 86; 1989, No. 127, s. 2

62.Sexual harassment

(1)It shall be unlawful for any person (in the course of that person's involvement in any of the areas to which this subsection is applied by subsection (3) of this section) to make a request of any other person for sexual intercourse, sexual contact, or other form of sexual activity which contains an implied or overt promise of preferential treatment or an implied or overt threat of detrimental treatment.

(2)It shall be unlawful for any person (1) the course of that person's involvement in any of the areas to which this subsection is applied by subsection (3) of this section) by the use of language (whether written or spoken) of a sexual nature. or of visual material of a sexual nature, or by physical behaviour of a sexual nature, to subject any other person to behaviour that-

(a)Is unwelcome or offensive to that person (whether or not that is conveyed to the first-mentioned person); and

(b)Is either repeated, or of such a significant nature, that it has a detrimental effect on that person m respect of any of the areas to which this subsection is applied by subsection (3) of this section.

(3)The areas to which subsections (1) and (2) of this section apply are-

(a)The making of an application for employment;

(b)Employment, which term includes unpaid work;

(c)Participation in, or the making of an application for participation in, a partnership;

(d)Membership, or the making of an application for membership, of an industrial union or professional or trade association;

(e)Access to any approval, authorisation, or qualification;

(f)Vocational training, or the making of an application for vocational training;

(g)Access to places, vehicles, and facilities;

(h)Access to goods and services;

(i)Access to land, housing, or other accommodation;

(j)Education.

(4)Where a person complains of sexual harassment, no account shall be taken of any evidence of the person's sexual experience or reputation.

63.Racial harassment

(1)it shall be unlawful for any person to use language (whether written or spoken), or visual material, or physical behaviour that-

(a)Expresses hostility against, or brings into contempt or ridicule, any other person on the ground of the colour, race, or ethnic or national origins of that person; and

(b)Is hurtful or offensive to that other person (whether or not that is conveyed to the first-mentioned person); and

(c)Is either repeated, or of such a significant nature, that it has a detrimental effect on that other person in respect of any of the areas to which this subsection is applied by subsection (2) of this section.

(2)The areas to which subsection (1) of this section applies are-

(a)The making of an application for employment;

(b)Employment, which term includes unpaid work;

(c)Participation in, or the making of an application for participation in, a partnership;

(d)Membership, or the making of an application for membership, of an industrial union or professional or trade association;

(e)Access to any approval, authorisation, or qualification;

(f)Vocational training, or the making of an application for vocational training;

(g)Access to places, vehicles, and facilities;

(h)Access to goods and services;

(i)Access to land, housing, or other accommodation;

(j)Education.

64.Choice of procedures

Where the circumstances giving rise to a complaint of sexual harassment or racial harassment under this Act are such that an employee would also be entitled to bring personal grievance proceedings under the Employment Contracts Act 199 1, the employee may take one but not both of the following steps:

(a)The employee may make, in relation to those circumstances, a complaint under this Act; or

(b)The employee may invoke, in relation to those circumstances, the procedures applicable under the Employment Contracts Act 1991 in relation to personal grievances under the relevant employment contract.

65.Indirect discrimination

Where any conduct, practice, requirement, or condition that is not apparently in contravention of any provision of this Part of this Act has the effect of treating a person or group of persons differently on one of the prohibited grounds of discrimination in a situation where such treatment would be unlawful under any provision of this Part of this Act other than this section, that conduct, practice, condition, or requirement shall be unlawful under that provision unless the person whose conduct or practice is in issue, or who imposes the condition or requirement, establishes good reason for it.

Cf. 1977, No. 49, s. 27; 1992, No. 16, s. 12

66.Victimisation

(1)It shall be unlawful for any person to treat or to threaten to treat any other person less favourably than he or she would treat other persons in the same or substantially similar circumstances

(a)On the ground that that person, or any relative or associate of that person,-

(i)Intends to make use of his or her rights under this Act; or

(ii)Has made use of his or her rights, or promoted the rights of some other person, under this Act; or

(iii)Has given information or evidence in relation to any complaint, investigation, or proceeding under this Act; or

(iv)Has declined to do an act that. would contravene this Act; or

(v)Has otherwise done anything under or by reference to this Act; or

(b)On the ground that he or she knows that that person, or any relative or associate of that person, intends to do any of the things mentioned in subparagraphs (i) to (v) of paragraph (a) of this subsection or that he or she suspects that that person, or any relative or associate of that person, has done, or intends to do, any of those things.

(2)Subsection (1) of this section shall not apply where a person is treated less favourably because he or she has knowingly made a false allegation or otherwise acted in bad faith.

Cf. 1977, No. 49, s. 31

67.Advertisements

(1)It shall be unlawful for any person to publish or display, or to cause or allow to be published or (displayed, any advertisement or notice which indicates, or could reasonably be understood as indicating, an intention to commit a breach of any of the provisions of this Part of this Act.

(2)For the purposes of subsection (1) of this section, use of a description with a gender connotation (such as "postman" or "stewardess") shall be taken to indicate an intention to discriminate, unless the advertisement contains an indication to the contrary.

Cf. 1971, No. 150, s. 7; 1977, No. 49, s. 32

68.Liability of employer and principals

(1)Subject to subsection (3) of this section, anything done or omitted by a person as the employee of another person shall, for the purposes of this Part of this Act, be treated as done or omitted by that other person as well as by the first-mentioned person, whether or not it was done with that other person's knowledge or approval.

(2)Anything done or omitted by a person as the agent, of another person shall, for the purposes of this Part of this Act, be treated as done or omitted y that other person as well as by the first-mentioned person, unless it is done or omitted without that other person's express or implied authority, precedent or subsequent.

(3)In proceedings under this Act against any person in respect of an act alleged to have been done by an employee of that person, it shall be a defence for that person to prove that he or she took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing as an employee of that person acts of that description.

Cf. 1977, No. 49, s. 33

69.Further provision in relation to sexual or racial harassment in employment

(1)Where-

(a)A request of the kind described in section 62 (1) of this Act is made to an employee; or

(b)An employee is subjected to behaviour of the kind described in section 62 (2) or section 63 of this Act by a person who is a customer or a client of the employee's employer, the employee may make a complaint in writing about that request or behaviour to the employee's employer.

(2)The employer, on receiving a complaint under subsection (1) of this section,-

(a)Shall inquire into the facts; and

(b)If satisfied that such a request was made or that such behaviour took place, shall take whatever steps are practicable to prevent any repetition of such a request or of such behaviour.

(3)Where any person, being a person in relation to whom an employee has made a complaint under subsection (1) of this section,-

(a)Either-

(i)Makes to that employee after the complaint a request of the kind described in section 62 (1) of this Act; or

(ii)Subjects that employee after the complaint to behaviour of the kind described in section 62 (2) or section 63 of this Act; and

(b)The employer of that employee has not taken whatever steps are practicable to prevent the repetition of such a request or such behaviour,-

that employer shall be deemed to have committed a breach of this Act and the provisions of this Act shall apply accordingly.

Special Provisions Relating to Superannuation Schemes

70.Superannuation schemes

(1)Subject to subsection (3) of this section, nothing in section 22 or section 44 of this Act relating to different treatment on the ground of age or disability shall apply to any condition in, or requirement of, a superannuation scheme in existence at the commencement of this Act in relation to a person who was a member of the scheme at the commencement of this Act or who becomes a member of the scheme before the 1st day of January 1996.
(amended by the Human Rights Amendment Act 1994)

(2)It shall continue to be lawful for the provisions of a superannuation scheme to provide-

(a)Different benefits for members of each sex on the basis of the same contributions; or

(b)The same benefits for members of each sex on the basis of different contributions,-

if the different treatment-

(c)is based on actuarial or statistical data, upon which it is reasonable to rely, relating to life-expectancy, accidents, or sickness; and

(d)Is reasonable having regard to the applicability of the data, and of any other relevant factors, to the particular circumstances.

(3)It shall continue to be unlawful to require an applicant for membership of a superannuation scheme to have attained a minimum age.

(4)Nothing in section 22 or section 44 of this Act shall prevent the provisions of a superannuation scheme from-

(a)Providing or requiring different contributions for members; or

(b)Providing benefits for members that differ in nature or amount,-

by reason of the disability or age of those members, if the different treatment-

(c)Is based on-

(i)Actuarial or statistical data, upon which it is reasonable to rely, relating to life-expectancy, accidents, or sickness; or

(ii)Where no such data is available in respect of persons with a disability, reputable medical or actuarial advice or opinion, upon which it is reasonable to rely, whether or not contained in an underwriting manual; and

(d)Is reasonable having regard to the applicability of the data or advice or opinion, and of any other relevant factors, to the particular circumstances.

(5)Nothing in section 22 or section 44 of this Act shall prevent the provisions of a superannuation scheme, or the trustees of the scheme, from-

(a)Requiring an applicant for membership of the scheme to be under a specified maximum age; or

(b)Permitting a member of the scheme to elect to make increased or reduced contributions to the scheme either temporarily or indefinitely; or

(c)Specifying an age or eligibility for each type of benefit provided for members of the scheme; or

(d)Subject to section 9c of the Superannuation Schemes Act 1989, requiring persons who become members of the scheme on or after the 1st day of January 1995 to leave the scheme on reaching the age at which persons of that age ordinarily qualify for national superannuation under section 3 of the Social Welfare (Transitional Provisions) Act 1990; or

(e)Providing benefits on the death or disability of members of the scheme that decrease in value as the age of members increases; or

(f)Providing benefits for members of the scheme that differ in nature and amount according to the member's period of membership (including any period deemed by the trustees of the scheme to be membership) of the scheme and of any scheme replaced by that scheme, and, in the case of a superannuation scheme provided by an employer, of any scheme to which the employer has paid contributions on behalf of the employee.

(6)In assessing for the purposes of this section whether it is reasonable to rely on any data or advice or opinion and whether different treatment is reasonable, the Commission or the Complaints Division may-

(a)Require Justification to be provided for reliance on the data or advice or opinion and for the different treatment; and

(b)Request the views of the Government Actuary on the justification for the reliance and for the different treatment.

71.Reports on superannuation schemes

The Commission shall from time to time, after consultation with the Government Actuary, report to the Minister on whether discrimination on the prohibited grounds has been eliminated from superannuation schemes.

Cf. 1977, No. 49, s. 89

72.Power to vary trust deeds

(1)Notwithstanding any Act or rule of law or the provisions of the instrument or conditions governing any superannuation scheme, the trustees of the scheme may make such amendments to that instrument or those conditions as are necessary or desirable to given effect to the provisions of sections 22, 44, and 70 of this Act.

(2)Every amendment to the provisions of an instrument of conditions governing any superannuation scheme made under subsection (1) of this section on or after the commencement of the Human Rights Amendment Act 1994 must be made by deed.

(amended by the Human Rights Amendment Act 1994)

Cf. 1977, No. 49, s. 90

Other Matters

73.Measures to ensure equality

(1)Anything done or omitted which would otherwise constitute a breach of any of the provisions of this Part of this Act shall not constitute such a breach if-

(a)It is done or omitted in good faith for the purpose of assisting or advancing persons or groups of persons, being in each case persons against whom discrimination is unlawful by virtue of this Part of this Act; and

(b)Those persons or groups need or may reasonably be supposed to need assistance or advancement 'm order to achieve an equal place with other members of the community.

(2)Nothing in this Part of this Act-

(a)Limits the power of the Crown to establish or arrange work or training schemes or employment assistance measures, eligibility for which may, in whole or in part, be determined by a person's age, employment status, or family status; or

(b)Makes it unlawful for any person to recruit or refer any other person who is of a particular age or of a particular employment status or of a particular family status for any work or training scheme or employment assistance measure that is established or arranged by the Crown, the eligibility for which may, in whole or in part, be determined by a person's age, employment status, or family status.

Cf. 197 7, No. 49, s. 29; 1992, No. 16, s. 13 (1)

74.Measures relating to pregnancy, childbirth, or family responsibilities

For the avoidance of doubt it is hereby declared that preferential treatment granted by reason of-

(a)A woman's pregnancy or childbirth; or

(b)A person's responsibility for part-time care or full-time care of children or other dependants shall not constitute a breach of this Part of this Act.

Cf. 1977, No. 49, s. 30

PART III - COMPLAINTS ABOUT UNLAWFUL DISCRIMINATION

Functions and Procedure

75.Functions of Complaints Division under this Part

The functions of the Complaints Division under this Part of this Act shall be-

(a)To receive a complaint that there has been a breach of any of the provisions of Part II of this Act:

(b)Subject to sections 76 and 81 (1) of this Act, to investigate any complaint under paragraph (a) of this section:

(c)Subject to section 81 (2) of this Act, to act as a conciliator in relation to any complaint under paragraph (a) of this section and to use its best endeavours to reach a settlement of the complaint:

(d)To investigate of its own motion any act, omission, practice, requirement, or condition which is or appears to be a breach of any of the provisions of Part II of this Act:

(e)To investigate of its own motion any act, omission, practice, requirement, or condition which is not apparently in breach of any of the provisions of Part II of this Act but which has the effect of giving different treatment to any group of persons where that group consists of persons against whom discrimination is unlawful by virtue of Part II of this Act:

(f)Subject to section 81 (3) of this Act, to act as a conciliator, and to use its best endeavours to reach a settlement, in relation to any investigation under paragraph (d) or paragraph (e) of this section:

(g)To refer complaints, or investigations of the Complaints Division's own motion, to the Proceedings Commissioner for the purpose of deciding whether proceedings should be instituted under section 83 (1) of this Act.
(amended by the Human Rights Amendment Act (No. 2) 1994)

Cf. 1977, No. 49, s. 34

76.Decision on investigation of complaints

(1)The Complaints Division may decide, in the circumstances set out in subsection (2) of this section, not to investigate a complaint or, as the case may be, not to investigate a complaint further.

(2)The Complaints Division may exercise the power conferred on it by subsection (1) of this section if-

(a)The complaint relates to a matter of which the complainant or the person alleged to be aggrieved (if not the complainant) has had knowledge for more than 12 months before the complaint is received by the Complaints Division; or

(b)In the Complaints Division's opinion,-

(i)The subject-matter of the complaint is trivial; or

(ii)The complaint is frivolous or vexatious or is not made in good faith; or

(iii)Having regard to all the circumstances of the case, it is unnecessary to investigate the complaint or, as the case may be, to investigate it further; or

(iv)The complainant or the person alleged to be aggrieved (if not the complainant) does not desire that the investigation be made or, as the case may be, continued; or

(v)There is in all the circumstances an adequate remedy or right of appeal, other than the right to petition Parliament or to make a complaint to the Ombudsman, which it would be reasonable for the complainant or the person alleged to be aggrieved (if not the complainant) to exercise.

(3)In any case where the Complaints Division decides not to investigate a complaint or not to investigate a complaint further, the Complaints Division shall inform the complainant-

(a)Of that decision; and

(b)Of the reasons for that decision.

(4)The Commission shall decide whether the Complaints Division will investigate a complaint or, as the case may be, will investigate a complaint further, in any case where the Complaints Division asks the Commission to make the decision.

Cf. 1977, No. 49, s. 35; 1981, No. 127, s. 3

77.Decision on investigation or conciliation of complaints about racial disharmony

(1)The Complaints Division may decide, in relation to a complaint received under section 75 (a) of this Act of a breach of section 61 of this Act,-

(a)Not to investigate that complaint or, as the case may be, not to investigate that complaint further; or

(b)Not to act as a conciliator in relation to that complaint.

(2)The Complaints Division may decide, in relation to an investigation under section 75 (d) or section 75 (c) of this Act that establishes a breach of section 61 of this Act, not to act as a conciliator in relation to that breach.

(3)When the Complaints Division makes a decision under subsection (1) or subsection (2) of this section, it may request the Commission to make a public statement under section 5 (1) of this Act in relation to the complaint or investigation.

(4)Where the Complaints Division under subsection (1) or subsection (2) of this section decides not to investigate a complaint or not to investigate a complaint further or not to act as a conciliator in relation to a complaint, the Complaints Division shall inform the complainant-

(a)Of that decision; and

(b)Of the reasons for that decision; and

(c)Of the complainant's right to bring proceedings before the Complaints Review Tribunal.

(5)Where-

(a)The Complaints Division decides under subsection (1) or subsection (2) of this section not to investigate a complaint or not to investigate a complaint further or not to act as a conciliator in relation to a complaint; or

(b)The Complaints Division does not make a request under subsection (3) of this section in relation to a decision made by the Complaints Division under subsection (1) or subsection (2) of this section, the complainant may bring proceedings before the Complaints Review tribunal against the person who is alleged to have committed a breach of section 61 of this Act; and sections 83 to 92 of this Act shall apply accordingly.

78.Investigations by Complaints Division

(1)Before investigating any matter under this Act, the Complaints Division-

(a)Shall inform-

(i)The complainant (if any); and

(ii)Any person alleged to be aggrieved (if not the complainant; and

(iii)The person to whom the investigation relates,-

of the Complaints Division's intention to make the investigation; and

(b)Shall inform the person to whom the investigation relates of-

(i)The details of the complaint (if any) or, as the case may be, the subject-matter of the investigation; and

(ii)The right of that person to submit to the Complaints Division, within a reasonable time, a written response in relation to the complaint or, as the case may be, the subject-matter of the investigation.

(2)Every investigation under this Act shall be conducted in private.

(3)The Complaints Division may hear or obtain information from such persons as it thinks fit.

(4)It shall not be necessary for the Complaints Division to hold any hearing.

(5)Except as provided in subsection (1) (b) (ii) of this section, no person shall be entitled as of right to be heard by the Complaints Division.

79.Parties to be informed of result of investigation

Where any investigation is made, the Complaints Division shall conduct the investigation with due expedition and shall inform the parties concerned, as soon as reasonably practicable after the conclusion of the investigation and in such manner as the Complaints Division thinks proper, of the result of the investigation.

Cf. 1977, No. 49, s. 36

80.Compulsory conciliation

(1)The Complaints Division may call a conciliation conference of the parties to a complaint-

(a)BY to each of them a notice requesting their attendance at a time and place specified; or

(b)BY such other means as is agreed to by the parties concerned.

(2)The objectives of the conciliation conference shall be-

(a)To identify the matters in issue between the parties; and

(b)To use its best endeavours to secure a settlement between the parties on the matters in Issue.

(3)Where a person fads to comply with a request under subsection (1) or this section to attend a conciliation conference, the Proceedings Commissioner may issue a summons requiring the person to attend a conference at a time and place to be specified in the summons.

(4)Subsections (1), (2), (3), and (5) of section 20 of the Summary Proceedings Act 1957 shall apply to a summons under this section as if it were a witness summons issued under that section.

81.Settlement

(1)Where it appears from a complaint, or any written response made under section 78 (1) (b) (ii) of this Act in relation to a complaint, that it may be possible to reach a settlement between any of the parties concerned, the Complaints Division may, without investigating the complaint or, as the case may be, investigating the complaint further, act as a conciliator in relation to the complaint and use its best endeavours to reach a settlement in relation to the complaint.

(2)Where the Complaints Division has investigated a complaint and is of the opinion that the complaint has substance, the Complaints Division shall act as a conciliator in relation to the complaint and use its best endeavours to reach a settlement in relation to the complaint.

(3)Where the Complaints Division has of its own motion investigated any act, omission. practice, requirement, or condition and is of the opinion that the matter ought to be proceeded with, the Complaints Division shall act as a conciliator, and use its best endeavours to reach a settlement, in relation to the investigation.

(4)The Commission shall decide whether a complaint has substance or whether a matter ought to be proceeded with in any case where the Complaints Division asks the Commission to make the decision.

(5)For the purposes of subsections (1) to (3) of this section, settlement"-

(a)Means the agreement of the parties concerned on actions that settle the matter, which actions may include the payment of compensation or the tendering of an apology; and

(b)Includes a satisfactory assurance by the person to whom the complaint or investigation relates against the repetition of the conduct that was the subject-matter of the complaint or the investigation or against further conduct of a similar kind.

82.Functions of Proceedings Commissioner tinder this Part

(1)The functions of the Proceedings Commissioner under this Part of this Act include,-

(a)In relation to a complaint, deciding whether an application for an order under section 95 of this Act should be made and, if so, making the application:

(b)In relation to a complaint, deciding whether a summons should be issued under section 80 of this Act and, if so, issuing the summons:

(c)In relation to a complaint, deciding whether to institute proceedings against a party to a settlement reached on a previous occasion and, if so, instituting the proceedings:

(d)In relation to a complaint, or in relation to an investigation of the Complaints Division's own motion, deciding whether an application for a declaration under section 97 of this Act should be made and, if so, making the application: (e)In relation to a complaint, or in relation to an investigation of the Complaints Division's own motion, deciding whether to institute proceedings against the person against whom the complaint was made or to whom the investigation related and, if so, instituting the proceedings. (2) A decision by the Proceedings Commissioner under subsection (1) (c) of this section may be made where it appears to the Commissioner that the complaint results from a failure by the party to observe the terms of a settlement reached on a previous occasion.

(3)A decision by the Proceedings Commissioner under subsection (1) (e) of this section may be made where it appears to the Commissioner that a settlement has not been reached and that no action or further action by the Complaints Division is likely to facilitate a settlement.

(4)The Proceedings Commissioner shall not institute proceedings against a person referred to in subsection (1) (c) or subsection (1) (e) of this section unless the Commissioner has given that person an opportunity to be heard.

Proceedings

83.Civil proceedings

(1)Civil proceedings before the Complaints Review Tribunal shall lie at the suit of the Proceedings Commissioner against a person referred to in section 82 (1) (c) or section 82 (1) (e) of this Act for a breach of any of the provisions of Part 11 of this Act.

(2)The Proceedings Commissioner may, under subsection (1) of this section, bring proceedings on behalf of a class of persons, and may seek on behalf of persons who belong to, the class any of the remedies described in section 86 of this Act, where the Commissioner considers that the person referred to in section 82 (1) (c) or section 82 (1) (c) of this Act is carrying on a discriminatory practice which affects that class and which is in breach of Part II of this Act.

(3)Where proceedings are commenced by the Proceedings Commissioner under subsection (1) of this section, neither the complainant (if any) nor the aggrieved person (if not the complainant) shall be an original party to. or, unless the Tribunal otherwise orders, join or be joined in, any such proceedings.

(4)Notwithstanding subsection (1) of this section, the complainant (if any) or the aggrieved person (if not the complainant) may bring proceedings before the Complaints Review Tribunal if he or she wishes to do so, and-

(a)The Complaints Division is of the opinion that the complaint does not have substance or that the matter ought not to be proceeded with; or

(b)In a case where the Proceedings Commissioner would be entitled to bring proceedings, the Proceedings Commissioner-

(i)Agrees to the complainant, in the case of a complaint, or the aggrieved person, in the case of an investigation of the Complaints Division's own motion, bringing proceedings; or

(ii)Declines to take proceedings.

(5)Civil proceedings before the Complaints Review Tribunal shall he at the suit of the person against whom a complaint was made or to whom an investigation related if-

(a)The Complaints Division is of the opinion that the complaint has substance or that the matter ought to be proceeded with; and

(b)Either-

(i)The Proceedings Commissioner does not bring proceedings under subsection (1) of this section; or

(ii)The complainant or, as the case may be, the aggrieved person, does not bring proceedings under subsection (4) of this section.

Cf. 1977, No. 49, s. 38 (1)-(4); 1983, No. 56, s. 12 (1), (2); 1993, No. 35, s. 3 (4)

84.Right Proceedings Commissioner to appear in civil proceedings

(1)The Proceedings Commissioner may appear and be heard, in person or by a barrister or solicitor,-

(a)In any proceedings before the Complaints Review Tribunal; and

(b)In any proceedings in-

(i)A District Court; or

(ii)The High Court; or

(iii)The Court of Appeal,-

in relation to any proceedings that are or have been before the Complaints Review Tribunal, whether or not the Proceedings Commissioner is or was a party to the proceedings before the Complaints Review Tribunal.

(2)Where, pursuant to subsection (1) of this section, the Proceedings Commissioner appears m any proceedings of a kind described in that subsection, he or she shall, unless those proceedings are by way of appeal, have the right to adduce evidence and the right to cross-examine witnesses.

(3)Where, pursuant to subsection (1) of this section, the Proceedings Commissioner, not being a party to any proceedings before the Tribunal, appears in those proceedings or in any proceedings in any Court in relation to those proceedings, the Tribunal or the Court, as the case may be, may make such order as it thinks fit-

(a)As to the payment by any party to the proceedings before the Tribunal or the Court of the costs incurred by the Proceedings Commissioner in so doing; or

(b)As to the payment by the Proceedings Commissioner of any costs incurred by any of the parties to the proceedings before the Tribunal or the Court by reason of the appearance of the Proceedings Commissioner.

(4)Costs ordered to be paid by the Proceedings Commissioner shall be paid by the Commission.

(5)Nothing in this section limits or affects-

(a)Section 87 of this Act; or

(b)Any power of a Court to award costs in any proceedings to which the Proceedings Commissioner is a party.

Cf. 1977, No. 49, s. 38A; 1983, No. 56, s. 13; 1993, No. 35, s. 3 (5)

85.Proof of exceptions

Where, by any provision of Part II of this Act, conduct is excepted from conduct that is unlawful under any provision of Part II of this Act, the onus of proving the exception in any proceedings under this Part of this Act lies upon the defendant.

Cf. 1977, No. 49, s. 39

Remedies

86.Remedies

(1)In any proceedings before the Complaints Review Tribunal brought by the Proceedings Commissioner or the complainant or, as the case may be, the aggrieved person, the plaintiff may seek such of the remedies described in subsection (2) of this section as he or she thinks fit.

(2)If in any such proceedings the Tribunal is satisfied on the balance of probabilities that the defendant has committed a breach of any of the provisions of Part II of this Act, it may grant one or more of the following remedies:

(a)A declaration that the defendant has committed a breach of this Act:

(b)An order restraining the defendant from continuing or repeating the breach, or from engaging in, or causing or permitting others to engage m. conduct of the same kind as that constituting the breach, or conduct of any sin-War kind specified in the order:

(c)Damages in accordance with section 88 of this Act:

(d)An order that the defendant perform any acts specified in the order with a view to redressing any loss or damage suffered by the complainant or, as the case may be, the aggrieved person as a result of the breach:

(e)A declaration that any contract entered into or performed in contravention of any of the provisions of Part II of this Act is an illegal contract:

(f)Relief in accordance with the Illegal Contracts Act 1970 in respect of any such contract to which the defendant and the complainant or, as the case may be, the aggrieved person are parties:

(g)Such other relief as the Tribunal thinks fit.

(3)It shall not be a defence to proceedings under this section that the breach was unintentional or without negligence on. the part of the defendant, but the Tribunal shall take the conduct of the defendant into account 'm deciding what, if any, remedy to grant.

(4)In any proceedings before the Complaints Review Tribunal brought at the suit of the person against whom a complaint As made or to whom an investigation related, that person may seek a declaration that he or she has not committed a breach of this Act.

Cf, 1977, No. 49, s. 38 (5), (6), (8); 1983, No. 56, s. 12 (3)

87.Costs

(1)In any proceedings under section 83 of this Act, the Tribunal may make such award as to costs as it thinks fit, whether or not it grants any other remedy.

(2)Where the Proceedings Commissioner is a party, any costs awarded against the Commissioner shall be paid by the Commission and the Commission shall not be entitled to be indemnified by the complainant or, as the case may be, the aggrieved person.

Cf. 1977, No. 49, s. 38 (7); 1983, No. 56, s. 12 (4)

88.Damages

(1)In any proceedings under section 83 (1) or section 83 (4) of this Act, the Tribunal may award damages against the defendant for a breach of any of the provisions of Part II of this Act in respect of any one or more of the following:

(a)Pecuniary loss suffered as a result of, and expenses reasonably incurred by the complainant or, as the case may be, the aggrieved person for the purpose of, the transaction or activity out of which the breach arose:

(b)Loss of any benefit, whether or not of a monetary kind, which the complainant or, as the case may be, the aggrieved person might reasonably have been expected to obtain but for the breach:

(c)Humiliation, loss of dignity, and injury to the feelings of the complainant or, as the case may be, the aggrieved person.

(2)Subject to subsection (3) of this section, the Commission shall pay damages recovered by the Proceedings Commissioner under this section to the complainant or, as the case may be, the aggrieved person on whose behalf the proceedings were brought.

(3)if the complainant or, as the case may be, the aggrieved person is an unmarried minor, the Proceedings Commissioner may, in his or her discretion, pay the damages to the Public. Trustee or to any person or trustee corporation acting as the manager of any property of that person.

(4)If the complainant or, as the case may be, the aggrieved person is a mentally disordered person within the meaning of section 2 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 whose property is not being managed under the Protection of Personal and Property Rights Act 1988, the Proceedings Commissioner may, in his or her discretion, pay the damages to the Public Trustee.

(5)if the complainant or, as the case may be, the aggrieved person is a person whose property is being managed under the Protection of Personal and Property Rights Act 1988, the Proceedings Commissioner shall ascertain whether the terms of the property order cover management of money received as damages and,-

(a)If damages fall within the terms of the property order, the Proceedings Commissioner shall pay the damages to the person or trustee corporation acting as the property manager; or

(b)If damages do not fall within the terms of the property order, the Proceedings Commissioner may, in his or her discretion, pay the damages to the Public Trustee.

(6)Where money is paid to the Public Trustee under subsection (3) or subsection (4) or subsection (5) of this section,-

(a)Section 12 of the Minors' Contracts Act 1969 shall apply in the case of an unmarried minor; and

(b)Subsections (4) and (6) to (9) of section 66 of the Public Trust Office Act 1957 shall, with any necessary modifications, apply in the case of a person referred to in subsection (4) or subsection (5) of this section. Cf. 1977, No. 49, s. 40; 1983, No. 56, s. 14 (2)

89.Monetary limits on remedies that Tribunal may grant

(1)Civil proceedings under section 83 of this Act may be instituted before the Complaints Review Tribunal irrespective of the amount of damages claimed or the value of the property 'm respect of which any remedy is sought but, subject to sections 90 and 91 of this Act, the Tribunal shall not award any damages or grant any remedy in any such proceedings if the making of that award or the granting of that remedy would, by reason of the monetary limits contained in sections 29 to 34 of the District Courts Act 1947, be beyond the jurisdiction of a District Court.

(2)For the purposes of subsection (1) of this section, where civil proceedings under section 83 of this Act are brought by the Proceedings Commissioner on behalf of more than one complainant or, as the case may be, more than one aggrieved person, those proceedings shall, for the purpose of applying any monetary limit under that subsection, be treated as if each complainant or, as the case may be, each aggrieved person, on whose behalf those proceedings are brought, were the plaintiff in a separate action against the defendant.

Cf. 1977, No. 49, s. 41; 1983, No. 56, s. 15; 1993, No. 35, s. 3 (6)

90.Granting of remedies by High Court on reference from Tribunal

(1)Where the Tribunal is satisfied on the balance of probabilities that a defendant in proceedings under section 83 of this Act has committed a breach of Part II of this Act but that-

(a)The granting of the appropriate remedy under section 86 of this Act would be outside the limits imposed by section 89 of this Act; or

(b)That the granting of a remedy in those proceedings would be better dealt with by the High Court, the Tribunal shall refer the granting of a remedy in those proceedings to the High Court.

(2)Where the granting of a remedy in any proceedings under section 83 of this Act is referred to the High Court under subsection (1) of this section, that Court shall decide, on the basis of the Tribunal's finding that the defendant has committed a breach of Part II of this Act, whether one or more of the remedies set out in section 86 of this Act is to be granted.

(3)Every decision of the High Court under subsection (2) of this section shall be remitted to the Tribunal for inclusion in its determination with regard to the proceedings and shall have effect as part of that determination notwithstanding the limits imposed by section 89 of this Act.

(4)A reference under subsection (1) of this section shall be effected by sending to the Registrar of the High Court nearest to which the proceedings were commenced a report on the proceedings, which report shall set out the Tribunal's finding, with regard to the breach of Part 11 of this Act, and shall include or be accompanied by a statement of the considerations to which the Tribunal has had regard in making the reference to the Court.

(5)The Court may direct the Tribunal to amplify any report made for the purposes of subsection (4) of this section.

(6)A copy of every report made for the purposes of subsection (4) of this section shall be given or sent forthwith to every an to the proceedings, and any such party shall be entitled to be heard and to tender in the High Court evidence concerning the remedy (if any) to be granted on the basis of the Tribunal's finding that the defendant has committed a breach of Part II of this Act but no such party shall be entitled, on the reference under subsection (1) of this section, to challenge that finding.

(7)Subject to this Act, the procedure in respect of any reference under subsection (1) of this section shall be in accordance with the rules of Court and, subject to any necessary modifications, shall be the same as that applying in respect of an appeal.

(8)Nothing in this section shall Emit the provisions of sections 123 to 125 of this Act or prevent the making of an appeal in accordance with section 123 of this Act in respect of any determination of the Tribunal in which a decision of the High Court is included pursuant to subsection (3) of this section.

Cf. 1977, No. 49, s. 42 (1)-(6), (8), (9)

91.Abandonment to enable Tribunal to make award of damages

Notwithstanding the provisions of sections 89 and 90 of this Act, where the Tribunal would have jurisdiction in an proceedings under section 83 of this Act to make an award of damages m accordance with section 88 of this Act if the amount of the award were within the Emit for the time being fixed by section 29 (1) of the District Courts Act 1947 (as applied by section 89 of this Act), the Tribunal may make such an award in any case where the plaintiff abandons the excess; and an award of damages in those proceedings in accordance with section 88 of this Act shall operate to discharge from liability in respect of the amount so abandoned any person against whom the proceedings are brought and the subsequent award made.

Cf. 1977, No. 49, s. 43

92.Extension of jurisdiction by agreement between parties

Notwithstanding the provisions of sections 89 and 90 of this Act, where the Tribunal, but for the provisions of section 89 of this Act, would have, in any proceedings under section 83 of this Act, jurisdiction to grant any one or more of the remedies specified in section 86 of this Act and the parties to the proceedings, by memorandum signed by them or their respective solicitors or agents, agree that the Tribunal shall have jurisdiction to grant any one or more of the remedies specified in section 86 of this Act irrespective of the provisions of section 89 of this Act, the Tribunal shall have jurisdiction to grant one or more of those remedies accordingly.

Cf. 1977, No. 49, s. 44 (1)

PART IV - COMPLAINTS REVIEW TRIBUNAL

93.Complaints Review Tribunal

The Tribunal constituted by section 45 of the Human Rights Commission Act 1977 and known as the Complaints Review Tribunal shall continue in being.

Cf. 1977, No. 49, s. 45; 1993, No. 35, s. 3 (1)

Functions and Powers of Tribunal

94.Functions of Tribunal

The functions of the Tribunal shall be-

(a)To consider and adjudicate upon proceedings brought pursuant to sections 83, 95, and 97 of this Act:

(b)To exercise and perform such other functions, powers, and duties as are conferred or imposed on it by or under this Act or any other enactment.

Cf. 1977, No. 49, s. 46; 1993, No. 35, s. 4 (2)

95.Power to make interim order

(1)In respect of any matter in which the Tribunal has jurisdiction under this Act to make any final determination, the Chairperson of the Tribunal shall have power to make an interim order if he or she is satisfied that it is necessary in the interests of justice to make the order to preserve the position of the parties pending a final determination of the proceedings.

(2)An application for an interim order may be made by the Proceedings Commissioner or, in a case to which section 83 (4) of this Act applies, by the complainant or, as the case may be, the aggrieved person.

(3)A copy of the application shall be served on the defendant who shall be entitled to be heard before a decision on the application is made.

Cf. 197 7, No. 49, s. 46A; 1993, No. 35, s. 4 (1)

96.Review of interim orders

Where an interim order has been made, the defendant may, with the leave of the Tribunal and instead of appealing against the order, apply to the High Court to vary or rescind the order unless that order was made with the defendant's consent.

Cf. 1977, No. 49, s. 46B; 1993, No. 35, s. 4 (1)

97.Power in respect of exception for genuine, occupational qualification or genuine justification

In respect of any matter in which the Tribunal has jurisdiction under this Act to make any final determination, the Tribunal may at any time, on the application of-

(a)The Proceedings Commissioner; or

(b)The person against whom the complaint has been made; or

(c)The person to whom the investigation relates; or

(d)The Proceedings Commissioner and the person against whom the complaint has been made; or

(e)The Proceedings Commissioner and the person to whom the investigation relates, declare that any act, omission, practice, requirement, or condition that would otherwise be unlawful under any provision of Part II of this Act is not unlawful because it constitutes a genuine occupational qualification, in respect of sections 22 to 41, or a genuine Justification, in respect of sections 42 to 60 of this Act.

Constitution of Tribunal

98.Membership of Tribunal

The Tribunal shall consist of-

(a)A Chairperson; and

(b)Two other persons appointed by the Chairperson for the purposes of each hearing from a panel maintained by the Minister under section 101 of this Act.

Cf. 1977, No. 49, s. 47; 1993, No. 35, s. 5 (1)

99.Chairpersons of Tribunal

(1)Every Chairperson of the Tribunal shall be appointed by the Governor-General on the recommendation of the Minister.

(2)Where the Governor-General on the recommendation of the Minister considers it necessary, the Governor-General may appoint 2 persons to the office of Chairperson of the Tribunal.

(3)Where there are 2 Chairpersons of the Tribunal, each Chairperson shall exercise principally those parts of the Tribunal's jurisdiction that are specified from time to time in his or her warrant of appointment but nothing shall prevent each Chairperson from exercising any other part of the Tribunal's jurisdiction.

(4)Where a second Chairperson of the Tribunal is appointed, a new warrant of appointment may be issued to the existing Chairperson specifying the parts of the Tribunal's jurisdiction that the existing Chairperson is principally to exercise.

(5)In this Part of this Act, a reference to "the Chairperson" or "the Chairperson of the Tribunal" shall be read as a reference to either Chairperson where there are 2 Chairpersons of the Tribunal.

Cf 197 7, No. 49, s. 47A; 1993, No. 35, s. 5 (1)

100.Appointment and term of office

(1)Every person appointed as a Chairperson of the Tribunal shall be a barrister or solicitor of the High Court of not less than 7 years' practice, whether or not the barrister or solicitor holds or has held judicial office.

(2)Except as otherwise provided in section 103 of this Act, every person appointed as a Chairperson of the Tribunal shall hold office for such term, not exceeding 5 years, as the Governor-General on the recommendation of the Minister shall specify in the instrument appointing that Chairperson.

(3)Any person appointed as a Chairperson may hold that office concurrently with any other office held by him or her and may from time to time be reappointed.

(4)Where the term for which a Chairperson has been appointed expires, that Chairperson, unless sooner vacating or removed from office under section 103 of this Act, shall continue to hold office, by virtue of the appointment for the term that has expired, until-

(a)That Chairperson is reappointed; or

(b)A successor to that Chair-person is appointed; or

(c)That Chairperson is informed in writing by the Minister that that Chairperson is not to be reappointed and that a successor to that Chairperson is not to be appointed.

Cf. 1977, No. 49. s. 47B; 1993, No. 35, s. 5 (1)

101.Panel

(1)The Minister shall maintain a panel of not more than 20 persons who may be appointed pursuant to section 98 of this Act.

(2)In considering the suitability of any person for inclusion on the panel, the Minister shall have regard not only to his or her personal attributes but also to his or her knowledge of and experience in the different aspects of matters likely to come before the Tribunal.

(3)The name of a person shall be removed from the panel if-

(a)The person dies or is, under the insolvency Act 1967, adjudged bankrupt; or

(b)The Minister directs that the name of the person be removed from the panel for disability affecting performance of duty, neglect of duty, or misconduct, proved to the satisfaction of the Minister; or

(c)A period of 5 years has elapsed since the date on which the Minister last approved the entry of the person's name; or

(d)The person requests by writing addressed to the Minister that his or her name be removed.

(4)Where subsection (3) (c) or subsection (3) (d) of this section applies, the name of the person shall not be removed from the panel until any hearings in respect of which that person was appointed to the Tribunal have concluded.

Cf. 1977, No. 49, s. 47C; 1993, No. 35, s. 5 (1)

102.Deputy Chairperson

(1)In any case in which a Chairperson of the Tribunal becomes incapable of acting if by reason of illness, absence, or other sufficient cause, or if a Chairperson deems it not proper or desirable that he or she should adjudicate on any specified matter, the Governor-General, on the recommendation of the Minister, may appoint a suitable person to be the deputy of that Chairperson to act for that Chairperson for the period or purpose stated in the appointment.

(2)No person shall be appointed as a Deputy Chairperson unless he or she is eligible for appointment as a Chairperson.

(3)Every Deputy Chairperson appointed under this section shall, while acting for a Chairperson, be deemed to be a Chairperson of the Tribunal.

(4)No appointment of a Deputy Chairperson, and no act done by a Deputy Chairperson as such, and no act done by the Tribunal while he or she is acting as such, shall in any proceedings be questioned on the ground that the occasion for the appointment had not arisen or had ceased.

Cf. 197 7, No. 49, s. 48; 1993, No. 35, s. 5 (1)

103.Vacation of office by Chairperson and Deputy Chairperson

(1)A Chairperson and any Deputy Chairperson of the Tribunal may at any time resign his or her office by delivering a notice in writing to that effect to the Minister.

(2)A Chairperson and any Deputy Chairperson of the Tribunal shall be deemed to have vacated his or her office if he or she dies or is, under the Insolvency Act 1967, adjudged bankrupt.

(3)A Chairperson and any Deputy Chairperson of the Tribunal may at any time be removed from office by the Governor-General for disability affecting performance of duty, neglect of duty, or misconduct, proved to the satisfaction of the Governor-General.

Cf. 1977, No. 49, s. 49; 1993, No. 35, s. 5 (1)

Procedure of Tribunal

104.Sittings of Tribunal

(1)Sittings of the Tribunal shall be held at such times and places as the Tribunal or Chairperson from time to time appoints.

(2)Any sitting may be adjourned from time to time and from place to place by the Tribunal or a Chairperson or by the Secretary to the Tribunal.

(3)No sitting of the Tribunal shall take place unless all the members are present, but the decision of a majority of the members shall be the decision of the Tribunal.

(4)A Chairperson shall preside at all sittings of the Tribunal.

(5)Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal may regulate its procedure in such manner as the Tribunal thinks fit and may prescribe or approve forms for the purposes of this Act.

Cf. 1977, No. 49, s. 50; 1993, No. 35, s. 5 (2)

105.Substantial merits

The Tribunal shall act according to equity, good conscience, and the substantial merits of the case, without regard to technicalities.

Cf. 1977, No. 49, s. 51

106.Evidence in proceedings before Tribunal

(1)The Tribunal may receive as evidence any statement, document, information, or matter that may in its opinion assist it to deal effectively with the matters before it, whether or not it would be admissible in a Court of law.

(2)The Tribunal may take evidence on oath, and for that purpose any member or officer of the Tribunal may administer an oath.

(3)The Tribunal may permit a person appearing as a witness before it to give evidence by tendering a written statement and, if the Tribunal thinks fit, verifying it by oath.

(4)Subject to subsections (1) to (3) of this section, the Evidence Act 1908 shall apply to the Tribunal in the same manner as if the Tribunal were a Court within the meaning of that Act.

Cf. 1977, No. 49, s. 52

107.Sittings to be held in public except in special circurnstances

(1)Except as provided by subsections (2) and (3) of this section, every hearing of the Tribunal shall be held in public.

(2)The Tribunal may deliberate in private as to its decision in any matter or as to any question arising in the course of any proceedings before it.

(3)Where the Tribunal is satisfied that it is desirable to do so, the Tribunal may, of its own motion or on the application of any party to the proceedings,-

(a)Order that any hearing held by it be. heard in private, either as to the whole or any portion thereof:

(b)Make an order prohibiting the publication of any report or account of the evidence or other proceedings in any proceedings before it (whether heard in public or in private) either as to the whole or any portion thereof:

(c)Make an order prohibiting the publication of the whole or part of any books or documents produced at any hearing of the Tribunal.

(4)Every person commits an offence and is liable on Summary conviction to a fine not exceeding $3,000 who acts in contravention of any order made by the Tribunal under subsection (3) (b) or subsection (3) (c) of this section.

Cf. 1977, No. 49, s. 54

108.Persons entitled to be heard

(1)Any person who is a party to the proceedings before the Tribunal, and any person Who satisfies the Tribunal that he or she has an interest in the proceedings greater than the public generally, may appear and may call evidence on any matter that should be taken into account in determining the proceedings.

(2)Where any person who is not a party to the proceedings before the Tribunal wishes to appear, that person shall give notice to the Tribunal and to every party not less than 10 gays before the commencement of the hearing.

(3)A person who has a right to appear or is allowed to appear More the Tribunal may appear in person or, be represented by his or her counsel or agent.

109.Witness summons

(1)The Tribunal may of its own motion, or on the application of any party to the proceedings, issue a witness summons to any person requiring that person to attend before the Tribunal to give evidence at the hearing of the proceedings.

(2)The witness summons shall state-

(a)The place where the person is to attend; and

(b)The date and time when the person is to attend; and

(c)The papers, documents, records, or things which that person is required to bring and produce to the Tribunal; and

(d)The entitlement to be tendered or paid a sum in respect of allowances and travelling expenses; and

(e)The penalty for failing to attend.

(3)The power to issue a witness summons may be exercised by the Tribunal or a Chairperson, or by any officer of the Tribunal purporting to act by the direction or with the authority of the Tribunal or a Chairperson.

110.Service of summons

(1)A witness summons may be served-

(a)BY delivering it personally to the person summoned; or

(b)BY posting it by registered letter addressed to the person summoned at that person's usual place of residence.

(2)The summons shall,-

(a)Where it is served under subsection (1) (a) of this section, be served at least 24 hours before the attendance of the witness is required; or

(b)Where it is served under subsection (1) (b) of this section, be served at least 1 0 days before the date on which the attendance of the witness is required. (3) If the summons is posted by registered letter, it shall be deemed for the purposes of subsection (2) (b) of this section to have been served at the time when the letter would be delivered in the ordinary course of post.

111.Witnesses' allowances

(1)Every witness attending before the Tribunal to give evidence pursuant to a summons shall be entitled to be paid witnesses' fees, allowances, and travelling expenses according to the scales for the time being prescribed by regulations made under the Summary Proceedings Act 1957, and those regulations shall apply accordingly.

(2)On each occasion on which the Tribunal issues a summons under section 109 (1) of this Act, the Tribunal, or the person exercising the power of the Tribunal under subsection (3) of that section, shall fix an amount which, on the service of the summons, or at some other reasonable time before the date on which the witness is required to attend, shall be paid or tendered to the witness.

(3)The amount fixed under subsection (2) of this section shall be the estimated amount of the allowances and travelling expenses to which, in the opinion of the Tribunal or person, the witness will be entitled according to the prescribed scales if the witness attends at the time and place specified in the summons.

(4)Where a party to the proceedings has requested the issue of the witness summons, the fees, allowances, and travelling expenses payable to the witness shall be paid by that party.

(5)Where the Tribunal has of its own motion issued the witness summons, the Tribunal may direct that the amount of those fees, allowances, and travelling expenses-

(a)Form part of the costs of the proceedings; or

(b)Be paid from money appropriated by Parliament for the purpose.

112.Privileges and immunities

Witnesses and counsel appearing before the Tribunal shall have the same privileges and immunities as witnesses and counsel have in proceedings in a District Court.

113.Non-attendance or refusal to cooperate

(1)Every person commits an offence who, after being summoned to attend to give evidence before the Tribunal or to produce to the Tribunal any papers, documents, records, or things, without sufficient cause,-

(a)Fails to attend in accordance with the summons; or

(b)Refuses to be sworn or to give evidence, or, having been sworn, refuses to answer any question that the person is lawfully required by the Tribunal or any member of it to answer concerning the proceedings; or

(c)Fails to produce any such paper, document, record, or thing.

(2)Every person who commits an offence against subsection (1) of this section is liable on summary conviction to a fine not exceeding $1,500.

(3)No person summoned to attend before a Tribunal shall be convicted of an offence against subsection (1) of this section unless there was tendered or paid to that person travelling expenses in accordance with section 111 of this Act.

114.Power to commit for contempt

(1)If any person-

(a)Assaults, threatens, or intimidates, or intentionally insults, the Tribunal or any member of it or any special adviser to or officer of the Tribunal, during a sitting of the Tribunal, or in going to, or returning from, any sitting; or

(b)Intentionally interrupts the proceedings of the Tribunal or otherwise misbehaves while the Tribunal is sitting; or

(c)Intentionally and without lawful excuse disobeys an order or direction of a member of the Tribunal in the course of any proceedings before the Tribunal, any officer of the Tribunal, with or without the assistance of any member of the Police or other person, may, in accordance with any order given by a member of the Tribunal, take the person into custody and detain him or her for a period expiring not later than 1 hour following the rising of the Tribunal, and the Chairperson may, if he or she thinks fit, by warrant under his or her hand, commit the person to prison for any period not exceeding 10 days or impose a fine not exceeding $1,500.

(2)A warrant under subsection (1) of this section may be filed m any District Court and shall then be enforceable as an order made by that Court.

115.Tribunal may dismiss trivial, etc., proceedings

The Tribunal may at any time dismiss any proceedings brought under section 83 of this Act if it is satisfied that they are trivial, frivolous, or vexatious or are not brought in good faith.

Cf. 1977, No. 49, s. 55

116.Reasons to be given

Every decision of the Tribunal to grant one or more of the remedies described in section 86 of this Act or to dismiss any proceedings brought under that section shall be in writing and shall show the Tribunal's reasons for the decision.

Cf. 1977, No. 49, s. 56

117.Seal of Tribunal

The Tribunal shall have a seal, which shall be Judicially noticed in all Courts and for all purposes.

Cf 1977, No. 49, s. 57

118.Members of Tribunal not personally liable

No member of the Tribunal shall be personally liable for any act, done or omitted to be done by the Tribunal or any member thereof in good faith in pursuance or intended pursuance of the functions, duties, powers, or authorities of the Tribunal.

Cf. 1977, No. 49, s. 58

119.Remuneration and travelling allowances

(1)The Tribunal is hereby declared to be a statutory Board within the meaning of the Fees and Travelling Allowances Act 1951.

(2)There shall be paid to the members of the Tribunal, out of money appropriated by Parliament for the purpose, remuneration by way of fees, salary, or allowances travelling allowances and expenses in accordance with the Fees and Travelling Allowances Act 1951, and the provisions of that Act shall apply accordingly.

Cf. 1977, No. 49, s. 59

120.Services for Tribunal

(1)The Department of justice shall furnish such secretarial, recording, and clerical services as may be necessary to enable the Tribunal to discharge its functions.

(2)The cost of any services provided by the Department of justice pursuant to this section shall be paid from public money appropriated by Parliament for the purpose.

Cf 1977, No. 49, s. 60

121.Enforcement

(1)An order for the award of costs made by the Tribunal under section 84 (3) or section 87 of this Act and an order for the award of damages made by the Tribunal under section 88 of this Act may, upon registration of a certified copy in a District Court, be enforced in all respects as if it were an order of that Court.

(2)Every person commits an offence and is liable on summary conviction to a fine not exceeding $5,000 who contravenes or refuses to comply with any other order of the Tribunal made under section 86 of this Act.

Cf. 1977, No. 49, s. 61

122.Stating case for High Court

(1)The Tribunal may, at any time, before or during the hearing or before delivering its decision, on the application of any party to the proceedings or of its own motion, state a case for the opinion of the High Court on any question of law arising in any proceedings before the Tribunal.

(2)The Tribunal shall give notice to the parties to the proceedings of the Tribunal's intention to state a case under this section, specifying the registry of the High Court in which the case is to be filed.

(3)Except where the Tribunal intends to state the case of its own motion, the question shall be in the form of a special case drawn up by the parties to the proceedings, and, if the parties do not agree, to be settled by the Tribunal.

(4)Where the Tribunal intends to state the case of its own motion, it shall itself state and sign a case setting forth the facts and questions of law arising for the determination of the High Court.

(5)The High Court shall hear and determine any question submitted to it under this section, and shall remit the case with its opinion to the Tribunal.

Cf. 1977, No. 49, s. 62

123.Appeals to High Court

(1)Where any party is dissatisfied with any interim order made by the Chairperson under section 95 of this Act, that party may appeal to the High Court against the whole or part of that order.

(2)Where any party to any proceedings under section 83 of this Act is dissatisfied with any decision of the Tribunal dismissing those proceedings or granting one or more of the remedies described in section 86 of this Act or constituting a final determination of the Tribunal in those proceedings, that party may appeal to the High Court against the whole or any part of that decision.

(3)Where any party is dissatisfied with any decision of the Tribunal making a declaration under section 97 of this Act, that party may appeal to the High Court against the whole or any part of hat decision.

(4)Every appeal under this section shall be made by giving notice of appeal within 30 days after the date of the giving by the Tribunal in writing of the decision to which the appeal relates.

(5)In determining any appeal under this section the High Court shall have the powers conferred on the Tribunal by sections 105 and 106 of this Act, and those sections shall apply accordingly with such modifications as are necessary.

(6)In its determination of any appeal, the Court may-

(a)Confirm, modify, or reverse the order or decision appealed against, or any part of that order or decision:

(b)Exercise any of the powers that could have been exercised by the Tribunal in the proceedings to which the appeal relates.

(7)Notwithstanding anything in subsection (6) of this section, the Court may in any case, instead of determining any appeal, refer to the Tribunal, in accordance with the rules of Court, for further consideration by the Tribunal, the whole or any part of the matter to which the appeal relates.

(8)Subject to the provisions of this Act, the procedure in respect of any such appeal shall be in accordance with the rules of Court.

(9)Notice of appeal shall not operate as a stay of proceedings in respect of the decision to which the appeal relates unless the Tribunal or the High Court so orders.

Cf. 1977, No. 49, s. 63

124.Appeal to Court of Appeal on a question of law

(1)Any party to any proceedings before the High Court under this Act may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on a question of law arising in those proceedings:

Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(2)A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his or her application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

(3)Where the High Court refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the High Court or, within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if, in the opinion of that Court, the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

(4)On any appeal to the Court of Appeal under this section, the Court of Appeal shall have the same power to adjudicate on the proceedings as the High Court had.

(5)The decision of the Court of Appeal on any appeal under this section shall be final; and the same judgement shall be entered in the High Court, and the same execution and other consequences and proceedings shall follow thereon, as if the decision of the Court of Appeal had been given in the High Court.

(6)The decision of the Court of Appeal on any application to that Court for leave to appeal shall be final.

Cf. 1977, No. 49, s. 64

125.Costs of appeal

The High Court shall have power to make such order as to the whole or any part of the costs of an appeal under section 123 of this Act as may seem just but every order for costs shall follow the outcome of the appeal unless the Court otherwise orders.

Cf 1977, No. 49, s. 65

126.Additional members of High Court for purposes of Act

(1)For the purpose of the exercise by the High Court of its Jurisdiction and powers-

(a)Under section 90 of this Act; or

(b)Under sections 123 to 125 of this Act in respect of any appeal under section 123 (2) or section 123 (3) of this Act in which a question of fact is involved, there shall be 2 additional members of the Court who shall be persons appointed by a Judge of the Court for the purposes of the hearing or appeal from the panel maintained by the Minister under section 101 of this Act.

(2)Before entering upon the exercise of the duties of their office, the additional members shall take an oath before a Judge of the High Court that they will faithfully and impartially perform the duties of their office.

(3)The presence of a Judge of the High Court and of at least one additional member shall be necessary to constitute a sitting of the Court.

(4)The decision of a majority (including the judge, or, where more than one Judge sits, including a majority of the Judges) of the members present at a sitting of the Court shall be the decision of the Court. If the members present are equally divided in opinion, the decision of the judge, or of a majority of the judges, shall be the decision of the Court.

(5)if any question before the Court cannot be decided in accordance with subsection (4) of this section, the question shall be referred to the Court of Appeal for decision in accordance with the practice and procedure of that Court, which for the purpose shall have all the powers of the Court under this Act. The decision of the Court of Appeal in any proceedings under this subsection shall be final and shall take effect and 'be entered as if it were a decision of the Court under this Act.

(6)There shall be paid to the additional members, out of money appropriated by Parliament for the purpose, remuneration by way of fees, salary, or allowances and travelling allowances and expenses in accordance with the Fees and Travelling Allowances Act 195 1, and the provisions of that Act shall apply accordingly as if the Court were a statutory Board within the meaning of that Act.

Cf 1977, No. 49, s. 66; 1991, No. 60, s. 3 (4)

PART V - POWERS IN RELATION TO INVESTIGATIONS

127.Evidence

(1)A Commissioner who is a member of the Complaints Division may from to time, by notice m writing, require any person who in his or her opinion is able to give any information relevant to an investigation being conducted by the Commissioner to furnish such information, and to produce any such documents or things in the possession or under the control of that person, as in the Opinion of the Commissioner are relevant to the subject-matter of the investigation.

(2)A Commissioner who is a member of the Complaints Division may summon before him or her and examine on oath any person who in the Commissioner's opinion is able to give any information relating to the matter under investigation, and may for that purpose administer an oath to any person so summoned.

(3)Every such examination by a Commissioner shall be deemed to be a Judicial proceeding within the meaning of section 108 of the Crimes Act 1961 (which relates to perjury).

Cf. 1977, No. 49, s. 73 (1) (2)

128.Protection and privileges of witnesses, etc.

(1)Every person shall have the same privileges in relation to the giving of information to, the answering of questions put by, and the production of documents and things to, a Commissioner as witnesses have in any Court.

(2)No person shall be required to supply any information to or to answer any question put by a Commissioner in relation to any matter, or to produce to a Commissioner any document or paper or thing relating to any matter, in any case where compliance with that requirement would be in breach of an obligation of secrecy or non-disclosure imposed on that person by the provisions of any Act or regulations, other than the official information Act 1982.

(3)No person shall be liable to prosecution for an offence against any enactment, other than section 143 of this Act, by reason of that person's compliance with any requirement of a Commissioner under section 127 of this Act.

(4)Where the attendance of any person is required by a Commissioner under section 127 of this Act, the person shall be entitled to the same fees, allowances, and expenses as if the person were a Witness in a Court and, for the purpose,-

(a)The provisions of any regulations in that behalf under the Summary Proceedings Act 1957 shall apply accordingly; and

(b)The Commissioner shall have the powers of a Court under any such regulations to fix or disallow, in whole or in part, or to increase, any amounts payable under the regulations.

Cf. 1977, No. 49. s. 73 (3), (4), (6), (7)

129.Disclosure of certain matters not to be required-

(1)Where-

(a)The Prime Minister certifies that the giving of any information or the answering of any question or the production of any document or thing might prejudice the security, defence, or international relations of New Zealand (including New Zealand's relations with the Government of any other country or with any international organisation); or

(b)The Attorney-General certifies that the giving of any information or the answering of any question or the production of any document or thing-

(i)Might prejudice the prevention, investigation, or detection of offences; or

(ii)Might involve the disclosure of proceedings of Cabinet, or any committee of Cabinet, relating to matters of a secret or confidential nature, and such disclosure would be injurious to the public interest,-

the Commissioner shall not require the information to be given, or, as the case may be, the document or thing to be produced.

(2)Subject to the provisions of subsection (1) of this section, the rule of law which authorises or requires the withholding of any document, or the refusal to answer any question, on the ground that the disclosure of the document or the answering of the question would be injurious to the public interest shall not apply in respect of any investigation by a Commissioner.

Cf. 1977, No. 49, s. 74

130.Proceedings privileged

(1)This section applies to every Commissioner and every person engaged or employed in connection with the work of the Commission.

(2)Subject to subsection (3) of this section,-

(a)No proceedings, civil or criminal, shall lie against any person to whom this section applies for anything he or she may do or report or say in the course of the exercise or intended exercise of his or her duties under this Act, unless it is shown that he or she acted in bad faith:

(b)No person to whom this section applies shall be required to give evidence in any Court, or in any proceedings of a Judicial nature, in respect of anything commit to his or her knowledge in the exercise or his or her functions.

(3)Nothing in subsection (2) of this section applies in respect of proceedings for-

(a)An offence against section 78 or section 78A (1) or section 105 or section 105A or section 105B of the Crimes Act 1961; or

(b)The offence of attempting or conspiring to commit an offence against section 78 or section 78A (1) or section 105 or section 105A or section 105B of the Crimes Act 1961.

(4)Anything said or any information supplied or any document or thing produced by an person in the course of any inquiry or investigation by, or proceedings before, the Commission or a Commissioner under this Act shall be privileged in the same manner as if the inquiry or investigation or proceedings were proceedings in a Court.

(5)For the purposes of clause 3 of Part 11 of the First Schedule to the Defamation Act 1992, any report made by the Commission or a Commissioner under this Act shall be deemed to be an official report made by a person holding an inquiry under the authority of the Parliament of New Zealand.

Cf. 1971, No. 150, s. 20; 1977, No. 49, s. 76; 1982, No. 156, s. 50; 1991, No. 126, s. 29; 1993, No. 35, s. 6

PART VI - INCITING RACIAL DISHARMONY

131.Inciting racial disharmony

(1)Every person commits an offence and is liable on summary conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $7,000 who, with intent to excite hostility or ill-will against, or bring into contempt or ridicule, any group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons,-

(a)Publishes or distributes written matter which is threatening, abusive, or insulting, or broadcasts by means of radio or television words which are threatening, abusive, or insulting; or

(b)Uses in any public place (as defined in section 2 (1) of the Summary Offences Act 198 1), or within the hearing of persons in any such public place, or at any meeting to which the public are invited or have access, words which are threatening, abusive, or insulting, being matter or words likely to excite hostility or ill-will against, or bring into contempt or ridicule, any such group of persons in New Zealand on the ground of the colour, race, or ethnic or national origins of that group of persons.

(2)For the purposes of this section, "publishes" or "distributes" and "written matter" have the meaning given to them in section 61 of this Act.

Cf. 1971, No. 150, s. 25; 1977, No. 49, s. 86

132.No prosecution without Attorney-General's consent

No prosecution for an offence against section 131 of this Act shall be instituted without the consent of the Attorney-General.

Cf. 197 1, No. 150, s. 26

PART VII - MISCELLANEOUS PROVISIONS

133.Licences and registration

(1)Where any person is licensed or registered under any enactment to carry on any occupation or activity or where any premises or vehicle are registered or licensed for any purpose under any enactment, and where the person or other authority authorised to renew, revoke, cancel, or review any such licence or registration is satisfied-

(a)That in the carrying on of the occupation or activity; or

(b)That in the use of the premises or vehicle,-

there has been a breach of any of the provisions of Part II of this Act, the person or authority, in addition to any other powers which that person or authority has, but subject to subsection

(2)of this section, may refuse to renew or may revoke or cancel any such licence or registration, as the case may require, or may impose any other penalty authorised by the enactment, whether by way of censure. fine, or otherwise.

(2)Any procedural requirements of the enactment, including any whereby a complaint is a prerequisite to the exercise by the person or authority of its powers under the enactment, shall be observed.

(3)In any case in which any of the powers conferred by subsection (1) of this section are exercised,-

(a)The person or authority shall in giving its decision state that the decision is being made pursuant to subsection (1) of this section; and

(b)Any person who would have been entitled to appeal against that decision if it had been made on other grounds shall be entitled to appeal against the decision made pursuant to subsection (1) of this section.

(4)In this section the term "enactment" means any provision of any Act, regulations, or bylaws.

Cf. 1971, No. 150, s. 23

134.Access by the public to places, vehicles, and facilities

(1)Every. person commits an offence who-

(a)Refuses to allow any other person access to or use of any place or vehicle which members of the public are entitled or allowed to enter or use; or

(b)Refuses any other person the use of any facilities in that place or vehicle which are available to members of the public; or

(c)Requires any other person to leave or to cease to use that place or vehicle or those facilities, when that refusal or requirement is in breach of any of the provisions of Part II of this Act.

(2)Every person who commits an offence against this section is liable on summary conviction to a fine not exceeding $3,000.

(3)In this section the term "vehicle" includes a vessel, an aircraft, or a hovercraft.

Cf. 1971, No. 150, s. 24; 1977, No. 49, s. 86

135.No prosecution without Attorney-General's consent

No prosecution for an offence against section 134 of this Act shall be instituted without the consent of the Attorney-General.

Cf. 1971, No. 150, s. 26

136.Condition in restraint of marriage

A condition, whether oral or contained in a deed, will, or other instrument, which restrains or has the effect of restraining marriage shall be void if the person or class of person whom the person subject to the condition may or may not marry is identified or defined, expressly or by implication, by reference to the colour, race, or ethnic or national origins of the person or class of person.

Cf. 1971, No. 150, s. 27 (1)

137.Commissioners and staff deemed to be officials

Every Commissioner and every person engaged or employed in connection with the work of the Commission shall, for the purposes of sections 105, 105A, and 105B of the Crimes Act 1961, be deemed to be officials.

Cf. 1977, No. 49, s. 77; 1987, No. 8, s. 25 (1)

138.No adverse statement

Neither the Commission nor the Complaints Division shall, in any report or statement made pursuant to this Act, make any comment that is adverse to any person unless that person has been given an opportunity to be heard.

Cf. 1977. No. 49, s. 78 (2); 1991 No. 126, s. 32

139.Delegation of functions or powers by Commission

(1)The Commission may from time to time by writing under the hand of the Chief Commissioner delegate to any Commissioner any of the functions or powers of the Commission under this Act except the functions set out in section 5 (1) of this Act and this power of delegation. Until any such delegation is revoked, it shall continue in force according to its tenor.

(2)Every delegation under this section shall be revocable at will and no such delegation shall prevent the exercise of any function by the Commission.

Cf. 1977, No. 49. s. 79

140.Delegation of powers by Commissioner

(1)With the prior approval of the Minister, any Commissioner may from time to time, by writing under his or her hand, delegate to any officer or employee of the Commission any of the Commissioner's powers under this Act, except this power of delegation and the power to make any report under this Act.

(2)Any delegation under this section may be made to a specified person or to the holder for the time being of a specified office or to the holders of offices of a specified class.

(3)Every delegation under this section shall be revocable at will, and no such delegation shall prevent the exercise of any power by a Commissioner.

(4)Any such delegation may be made subject to such restrictions and conditions as the Commissioner thinks fit, and may be made either generally or in relation to any particular case or class of cases.

(5)Until any such delegation is revoked, it shall continue in force according to its tenor. In the event of the Commissioner by whom it was made ceasing to hold office, it shall continue to have effect as if made by his or her successor.

(6)Any person purporting to exercise any power of a Commissioner by virtue of a delegation under this section shall, when required to do so, produce evidence of his or her authority to exercise the power.

Cf 1977, No. 49. s. 80

141.Annual report

(1)Without limiting the right of the Commission. to report at any other time, the Commission shall, within 3 months after the expiration of each financial year, furnish to the Minister a report on the exercise of its functions under this Act during that year.

(2)The Minister shall lay a copy of the report before the House of Representatives in accordance with section 44A of the Public Finance Act 1989.

Cf 1971, No. 150. s. 28; 1977, No. 49, s. 81

142.Money to be appropriated by Parliament for purposes of this Act

All fees, salaries, allowances, and other expenditure payable or incurred under or in the administration of this Act shall be payable out of money to be appropriated by Parliament for the purpose.

Cf. 1971, No. 150, s. 32; 1977, No. 49, s. 82

143.Offences

Every person commits an offence against this Act and is liable on summary conviction to a fine" not exceeding $3000 who-

(a)Without lawful justification or excuse, wilfully obstructs, hinders, or resists the Commission or a Commissioner or any other person in the exercise of its or his or her powers under this Act:

(b)Without lawful justification or excuse, refuses or wilfully fails to comply with any lawful requirement of the Commission or a Commissioner or any other person under this Act:

(c)Makes any false statement knowing it to be false or intentionally misleads or attempts to mislead the Commission or a Commissioner or any other person in the exercise of its or his or her powers under this Act.

Cf. 1971, No. 150, s. 29; 1977, No. 49, s. 84

144.Regulations

The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:

(a)Prescribing the procedure to be followed under this Act in respect of complaints to and proceedings before the Commission or the Complaints Division or in respect of proceedings before the Tribunal:

(b)Prescribing forms for the purposes of this Act, and requiring the use of such forms:

(c)Providing for such matters as are contemplated by or necessary for giving full effect to this Act and for its due administration.

Cf. 1977, No. 49, s. 85 (1)

145.Related amendments to other enactments

The enactments specified in the Second Schedule to this Act are hereby amended in the manner indicated in that Schedule.

Cf. 197 7, No. 49, s. 86 (1)

146.Repeals

The enactments specified in the Third Schedule to this Act are hereby repealed.

147.Revocation

The Human Rights Commission Act Commencement Order 1978 is hereby revoked.

Transitional Provisions

148.Transitional provisions

(1)Notwithstanding section 146 of this Act,-

(a)All investigations which have been commenced by the Race Relations Conciliator under the Race Relations Act 1971 or by the Human Rights Commission under the Human Rights Commission Act 1977 and which are not concluded at the commencement of this Act shall be continued under Parts III and V of this Act:

(b)All proceedings which have been commenced under Part ill of the Human Rights Commission Act 1977 and which are pending at the commencement of this Act shall be heard and determined,-

(i)if the hearing of those proceedings has not commenced, under this Act; and

(ii)if the hearing of those proceedings has commenced. as if this Act had not been passed:

(c)All criminal proceedings which have been commence under section 24, section 25, or section 29 of the Race Relations Act 1971 or under section 54 (4), section 61 (2), or section 84 of the Human Rights Commission Act 1977 and which are pending at the commencement of this Act shall be heard and determined as if those provisions had not been repealed.

(2)Notwithstanding any other provision of this Act,-

(a)Every person who, immediately before the 1st day of February 1994, holds office as a Human Rights Commissioner (other than a person whose appointment would, even if this Act had not been passed, have ended with the close of the 31st day of January 1994) shall continue in office as a Human Rights Commissioner on the same terms of appointment as if this Act had not been passed:

(b)Every person who, immediately before the 1st day of February 1994, is employed by the Human Rights Commission (other than a person whose employment by that Commission would, if this Act had not been passed, have ceased with the close of the 31 st day of January 1994) shall continue to be employed by the Human Rights Commission on the same terms of appointment as if this Act had not been passed:

(c)The person who, immediately before the 1 st day of February 1994, holds the Ace of Chairperson of the Complaints Review Tribunal (unless his or her appointment would, even if this Act had not been passed, have ended with the close of the 31 st day of January 1994) shall-

(i)Continue to hold that office for the purpose of continuing the hearing of any proceedings which have been commenced under the Human Rights Commission Act 1977 and which are to be continued as if this Act had not been passed; and

(ii)Be the Chairperson, or one of the Chairpersons, of the Complaints Review Tribunal:

(d)The 2 persons who, immediately before the 1 st day of February 1994, are members of the Complaints Review Tribunal appointed by the Chairperson of that Tribunal shall -continue as members of that Tribunal for the purpose of continuing the hearing of any proceedings which have been commenced under the Human Rights Commission Act 1977 and which are to be continued as if this Act had not been passed:

(e)Every person who, immediately before the 1st day of February 1994, is a member of the panel maintained by the Minister under section 47c (1) of the Human Rights Commission Act 1977 shall continue as a member of the panel maintained by the Minister under section 101 of this Act.

Savings

149.Special provisions in relation to written employment contracts in force on 1 April 1992

(1)This section applies to every employment contract (whether a collective employment contract or an individual employment contract) that-

(a)Is in writing; and

(b)Was in force on the l st day of April 1992; and

(c)Specifies an age at which an employee is required to retire.

(2)Where the parties to an employment contract to which this section applies agree in writing, at any time on or after the 1st day of April 1992, to confirm or vary the age specified in the employment contract, the age, as so confirmed or varied, shall have effect notwithstanding section 22 of this Act. (3) Where the parties to an employment contract to which this section applies have not agreed in writing to confirm or vary the age specified in the employment contract, section 22 of this Act shall apply in relation to that employment contract. (4) Where, as at the 1st day of April 1992, the age at which an employer is required to retire, under a term of that employee's employment contract. was specified only in a document that sets out the employer's policy on the retirement ages of the employer's employees or any of them, this section shall not apply in relation to that employee's employment contract.

Cf. 1977, No. 49, s. 15c; 1992, No. 16, s. 4

150.Charitable instruments

(1)Nothing in this Act shall apply-

(a)To any provision m an existing or future will, deed, or other instrument where that provision confers charitable benefits, or enables charitable benefits to be conferred, on persons against whom discrimination is unlawful by virtue of Part II of this Act; or

(b)To any act done in order to comply with any provision described in paragraph (a) of this subsection.

(2)For the purposes of this section, "charitable benefits" means benefits for purposes that are charitable in accordance with the law of New Zealand.

Cf. 1971, No. 150, s. 36 (1); 1977, No. 49, s. 91 (1); 1983, No. 56, s. 18 (1)

151.Other enactments and actions not affected-

(1)Except as expressly provided in this Act, nothing in this Act shall Emit or affect the provisions of any other Act or regulation which is in force in New Zealand.

(2)Except as expressly provided in this Act, nothing in this Act relating to grounds of prohibited discrimination other than those described in paragraphs (a) to (g) of section 21 (1) of this Act shall affect anything done by or on behalf of the Government of New Zealand.

Cf. 197 1, No. 150, s. 35; 1977, No. 49, s. 92; 1992, No. 16; s. 20

152.Expiry Of section 151

Section 151 of this Act shall expire with the close of the 31st day of December 1999, and on the close of that day shall be deemed to be repealed.

153.Savings

(1)Nothing in this Act shall affect the right to bring any proceedings, whether civil or criminal, which might have been brought if this Act had not been passed, but, in assessing any damages to be awarded to or on behalf of any person under this Act or otherwise, a Court shall take account of any damages already awarded to or on behalf of that person in respect of the same cause of action.

(2)Subject to the Illegal Contracts Act 1970, no proceedings, civil or criminal, shall lie against any person. except as provided by this Act, in respect of any act or omission which is unlawful by virtue only of any of the provisions of Part 11 of this Act.

(3)Nothing in this Act shall affect any enactment or rule of law, or any policy or administrative practice of the Government of New Zealand, that-

(a)Relates to immigration; or

(b)Distinguishes between New Zealand citizens and other persons, or between British subjects or Commonwealth citizens and aliens.

(4)For the purpose of subsection (3) of this section, the term "enactment" means any provision of any Act, regulation, rules, bylaws, Order in Council, or Proclamation; and includes any provision of any notice, consent, approval, or direction which is given by any person pursuant to a power conferred by any Act, regulations, rules, bylaws, Order in Council, or Proclamation.

Cf. 1971. No. 150, s. 37; 1977, No. 49. ss. 86, 93

Schedule(s)

FIRST SCHEDULE - PROVISIONS APPLYING IN RESULT OF COMMISSION AND CONCILIATION (Section 20)

1.Staff

(1)Subject to the provisions of this clause, the Commission and the Conciliator may each appoint such employees (including acting or temporary or casual employees as may be necessary for the efficient carrying out of the functions, powers, and duties of the Commission or the Conciliator under this Act.

(2)The number of persons that may be appointed under this clause by the Commission or the Conciliator, whether generally or in respect of any specified duties or class of duties, shall from time to time be determined by the Minister.

(3)Subject to subclause (4) of this clause employees appointed tinder this clause shall be employed or such terms and conditions of employment as the Commission or the Conciliator from time to time determines.

(4)The Commission or the Conciliator shall.-

(a)Before entering into a collective employment contract in relation to all or any of the employees of the Commission or the Conciliator appointed under this clause consult with the State Services Commission with respect to the terms and conditions of employment to be Included in the collective employment contract; and

(b)From time to time consult with the State Services Commissioner in relation to the terms and conditions of employment applying to those employers appointed under this clause who are not covered by a collective employment contract.

2.Employment principles

The Commission and the Conciliator shall each operate a personnel policy that complies with the principle of being a good employer, which policy shall contain provisions generally accepted as necessary for the fair and proper treatment of employees in all aspects of their employment, including provisions meeting the requirements of section 56 (2) (a) to (d) (ii) and e to h of the State Sector Act 1988.

3.Employment of experts

(1)The Commission or the Conciliator may, as and when the need arises appoint any person who, in the opinion of the Commission or the Conciliator possesses expert knowledge or is otherwise able to assist in connection with the exercise of the functions of the Commission or the Conciliator to make such inquiries or to conduct such research or to make such reports or to render such other services as may be necessary for the efficient performance by the Commission or the Conciliator of the functions of the Commission or the Conciliator.

(2)The Commission or the Conciliator shall pay persons appointed under this clause, for services rendered by them, fees or commission or both at such rates as the Commission of the Conciliator thinks fit, and may separately reimburse them for expenses reasonably incurred in rendering services for the Commission of the Conciliator.

4.Salaries and allowances

(1)There shall be paid to the Commissioners and alternate Commissioners such remuneration by way of fees, salary, wages, or allowances as may from time to time be fixed, either generally or in respect of any particular Commissioner or Commissioners or alternate Commissioner or alternate Commissioners, by the Higher Salaries Commission.

(2)Subject to the Higher Salaries Commission Act 1977, any determination made under subclause (1) of this clause may be made so as to come into force on a date to be specified for that purpose in the determination, being the date of the making of the determination, or any other date, whether before or after the date of the making of the determination.

(3)Every determination made under subclause (1) of this clause in respect of which no date is specified as provided in subclause (2) of this clause shall come into force on the date of the making of the determination.

(4)There shall also be paid to the Commissioners and alternate Commissioners, in respect of time spent in travelling in the exercise of their functions, travelling allowances and travelling expenses in accordance with the Fees and Travelling Allowances Act 1951, and the provisions of that Act shall apply accordingly as if the Commissioners and alternate Commissioners were members of a statutory Board and the travelling were in the service of the statutory Board.

5.Superannuation or retiring allowances

(1)For the purpose of providing superannuation or retiring allowances for the Commissioners and for any of the employees of the Commission or the Conciliator, the Commission or the Conciliator may, out of the funds of the Commission or Conciliator, make payments to or subsidise any superannuation scheme that is registered under the Superannuation Schemes Act 1989.

(2)Notwithstanding anything in this Act. any person who, immediately before being appointed as a Commissioner or, as the case may be, becoming an employee of the Commission or the Conciliator, is a contributor to the Government Superannuation Fund under Part II or Pan IIA of the Government Superannuation Fund Act 1956 shall be deemed to be, for the purposes of the Government Superannuation Fund Act 1956, employed in the Government service so long as that person continues to hold office as a Commissioner or. as the case may be, to be an employee of the Commission or the Conciliator, and that Act shall apply to that person in all respects as if that person's service as a Commissioner or, as the case may be, as such an employee, were Government service.

(3)For the purpose of applying the Government Superannuation Fund Act 1956, in accordance with subclause (2) of this clause, to a person who holds office as a Commissioner or, as the case may be, is in the service of the Commission or the Conciliator as an employee and (in any such case) is a contributor to the Government Superannuation Fund, the term "controlling authority", in relation to any such person, means the Commission or the Conciliator.

6.Application of certain Acts to Commissioners and staff

No person shall be deemed to be employed in the service of the Crown for the purposes of the State Sector Act 1988 or the Government Superannuation Fund Act 1956 by reason only of that person's appointment as a Commissioner or a person appointed under clause 1 or clause 3 of this Schedule.

7.Services for Commission or Conciliator

The Crown, acting through any Department, may from time to time, at the request of the commission or the Conciliator, execute any work or enter into any arrangements for the execution or provision by the Department for the Commission or the Conciliator of any work or service, or for the supply to the Commission or Conciliator of any goods, stores, or equipment, on and subject to such terms and conditions as may be agreed.

8.Funds of Commission or Conciliator

(1)Them shall continue to be separate funds for the Commission and the Conciliator.

(2)Each fund shall consist of-

(a)Any money appropriated by Parliament for the purposes of the Commission or the Conciliator and paid to the Commission or the Conciliator for those purposes:

(b)All other money lawfully received by the Commission or the Conciliator for the purposes of the Commission or Conciliator.

(c)AD accumulations of income derived from any such money.

9.bank accounts

(1)Separate bank accounts shall be maintained for the Commission and the Conciliator.

(2)The Commission and the Conciliator shad operate at any bank or banks such accounts as are necessary for the exercise of their respective functions, powers. and duties.

(3)All money received by the Commission or the Conciliator or by any employee of the Commission or the Conciliator shall, as soon as practicable after it has been received, be paid into such bank accounts of the Commission or the Conciliator as the Commission or the Conciliator from time to time determines.

(4)The withdrawal or payment of money from any such account shall he authorised in such manner as the Commission or the Conciliator thinks fit.

10.Investment of money

Any money which belongs to the Commission or the Conciliator and which is not immediately required for expenditure by the Commission or the Conciliator may be invested pursuant to section 25 of the Public Finance Act 1989.

11.Commission or Conciliator not to borrow without content of Minister of Finance

Notwithstanding anything in section 4 (2) of this Act, the Commission or the Conciliator shall not borrow or contract to borrow any money. or renew any loan made to the Commission or the Conciliator, without the prior written consent of the Minister of Finance.

12.Seal

The seal of the Commission shall be judicially noticed in all Courts and for all purposes.

13.Exemption from income tax

The income of the Commission and the Conciliator shall be exempt from income tax.

14.Crown entities

(1)The Commission and the Conciliator shad each be a Crown entity for the purposes of the Public Finance Act 1989.

(2)The annual financial statements of the Commission and of the Conciliator shall be audited by the Audit Office, which, for that purpose, shall have and may exercise all such powers as it has under the Public Finance Act 1977 in respect of public money and stores.

SECOND SCHEDULE - ENACTMENTS AMENDED (Section 145)

Act Amended

Amendment

1958, No. 109-The Police Act 1958 (R.S. Vol. 26, p. 669)

BY inserting, after section 5, the following section:
"5A. Members may be removed for incompatible behaviour
(1)The Commissioner may institute the removal of a member of the Police from that member's employment if, following an inquiry under section 12 of this Act into alleged misconduct (in the case of a sworn member of the Police), or following an investigation into alleged serious misconduct (in the case of a non-sworn member of the Police), the Commissioner has reasonable grounds for believing-
"(a)That the member has behaved in a manner which is incompatible with the maintenance of good order and discipline within the Police or which tends to bring the Police into dispute; and
"(b)That the removal of the member is necessary to maintain good order and discipline within the Police or to avoid bringing the Police into disrepute.
"(2)Subsection (1) of this section applies to behaviour of any kind including, but not limited to, sexual behaviour of a heterosexual, homosexual, lesbian, or bisexual kind."

By omitting from section 88 (3) the words "Human Rights Commission Act 1977", and substituting the words "Human Rights Act 1993".

By repealing section 95 (as substituted by section 14 of the Police Amendment Act 1989 and amended by section 14 of the Police Amendment Act 1991), and substituting the following section:
"95. Choice of procedures- (1) Where the circumstances giving rise to a personal grievance by a member are also such that that member would be entitled to make a complaint under the Human Rights Act 1993, or would be entitled to invoke any provision in this Act (other than a provision applicable in relation to personal grievances), the member may take one, but not both, of the following steps:
"(a)The member may invoke, in relation to those circumstances, the procedures applicable in relation to personal grievances under this Act:
"(b)The member may make, in relation to those circumstances. a complaint under the Human Rights Act 1993, or may invoke any provision in this Act (other than a provision applicable in relation to personal grievances).
"(2)For the purposes of subsection (1) (b) of this section, a member makes a complaint when the Complaints Division referred to in section 12 (1) of the Human Rights Act 1993 accepts the complaint for investigation or conciliation."

1972, No. 118-The Equal Pay Act 1972 (R.S. Vol. 18, P. 85)

By omitting from section 2A (2) (as enacted by section 3 (1) of the Equal Pay Amendment Act 1991) the words "Human Rights Commission Act 1977", and substituting the words "Human Rights Act 1993".

1975. No. 9-The Ombudsmen Act 1975 (R.S. Vol. 21. p. 657)

By inserting in Part II of the First Schedule, in its appropriate alphabetical order, the following item: "The Human Rights Commission."

1982 No. 156-The Official Information Act 1982 (R.S. Vol. 21. p. 579)

By omitting from the First Schedule (as substituted by section 23 (1) of the Official Information Amendment Act 1987) the item relating to the Human Rights Commission.

1983, No. 130-The Films Act 1983

By inserting in Part II of the Schedule, in its appropriate alphabetical order, the following item: "The Human Rights Commission."

1986, No. 120-The Residential Tenancies Act 1986

By repealing subsection (5) of section 12, substituting the following subsection:
"(5)Nothing in this section shall limit or affect the application to the letting of residential premises of any of the provisions of the Human Rights Act 1993 relating to unlawful discrimination against persons on any of the prohibited ground; of discrimination in the Human Rights Act 1993."

1988, No. 162-The State. Owned Enterprises Amendment Act (No. 4) 1988

By repealing section 6, and substituting the following-section:
"6. Choice of procedure- Where the circumstances giving rise to a personal grievance by a person employed by Radio New Zealand Limited or Television New Zealand Limited are also such that that person would be entitled to make a complaint under the Human Rights Act 1993, or to exercise a right of review or appeal, that person may take one, but not more than one, of the following steps:
"(a)The person may invoke, in relation to those circumstances, the procedures applicable in relation to personal grievances under the relevant employment contract:
"(b)The person may make, in relation to those circumstances, a complaint under the Human Rights Act 1993:
"(c)The person may exercise the right of review or appeal."

1988, No. 163-The New Zealand Symphony Orchestra Act 1988

By repealing section 10, and substituting the following section:
"10. Choice of procedure Where the circumstances giving rise to a personal grievance by a person employed by the company are also such that that person would be entitled to make a complaint under the Human Rights Act 1993, or to exercise a right of review or appeal, that person may take one, but not more than one, of the following steps:
"(a)The person may invoke, in relation to those circumstances, the procedures applicable in relation to personal grievances under the relevant employment contract.
"(b)The person may make, in relation to those circumstances, a complaint under the Human Rights Act 1993:
"(c)The person may exercise the right of review or appeal."

1989, No. 25-The Broadcasting Act 1989

By repealing clause 7 of the First Schedule, substituting the following clause:
"7. Choice of procedure -Where the circumstances giving rise to a personal grievance by a person employed by the Authority or the Commission are also such that that person would be entitled to make a complaint under the Human Rights Act 1993, or to exercise a right of review or appeal, that person may take one, but not more than one, of the following steps:
"(a)The person may invoke, in relation to those circumstances, the procedures applicable in relation to personal grievances under the relevant employment contract:
"(b)The person may make, in relation to those circumstances, a complaint under the Human Rights Act 1993:
(c)The person may exercise the right of review or appeal."

1989, No. 63-The Sale of Liquor Act 1989

By repealing subsection (2) of section 15, substituting the following subsection:
"(2)Subsection (1) of this section applies subject to the Human Rights Act 1993."

By repealing subsection (2) of section 38, and substituting the following subsection:
"(2)Subsection (1) of this section applies subject to the Human Rights Act 1993."

By repealing subsection (2) of section 61, and substituting the following subsection:
"(2)Subsection (1) of this section applies subject to the Human Rights Act 1993."

By repealing subsection (2) of section 81, and substituting the following subsection:
"(2)Subsection (1) of this section applies subject to the Human Rights Act 1993."

1990, No. 28-The Defence Act 1990

By inserting, after section 33, the following section:
"33A. Age requirements Nothing in section 22 of the Human Rights Act 1993 shall apply to age requirements relating to recruitment, terms of service, or retirement in respect of service in the Armed Forces, excluding the category of General Service Hands."

By inserting, after section 57, the following heading and section: "Discharge or Release from Services for Incompatible Behaviour
"57A. Members may be discharged or released for incompatible behaviour
(1)The Chief of Defence Force may institute the discharge or release of a member of the Services if the Chief of Defence Force has reasonable grounds for believing-
"(a)That the member has behaved in a manner which is incompatible with the maintenance of good order and discipline within a Service or which tends to bring a service into disrepute; and"
"(b)That the discharge or release of the member is necessary"
"(i)To maintain good order and discipline, or
"(ii)To avoid prejudice to the reputation of that Service.
"(2)Subsection (1) of this section applies to behaviour of any kind including, but not limited to. sexual behaviour of a heterosexual, homosexual. lesbian, or bisexual kind."

1990, No. 109-The New Zealand Bill of Rights Act 1990

By repealing section 19, and substituting the following section:
"19. Freedom from discrimination
(1)Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.
"(2) Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part 11 of the Human his Act 1993 do not constitute discrimination."

1991, No. 22-The Employment Contracts Act 1991

By omitting from section 26 (c) the words "Human-Rights Commission Act 1977 or the Race Relations Act 1971", and substituting the words "Human Rights Act 1993".

By omitting from section 28 (3) the words -Human Rights Commission Act 1977", and substituting the words "Human Rights Act 1993".

By repealing section 39, and substituting the following section:
"39. Choice of procedures(1) Where the circumstances giving rise to a personal grievance by an employee are also such that that employee would be entitled to make a complaint under the Human Rights Act 1993, the employee may take one, but not both, of the following stops:
"(a)The employee may invoke, in relation to those circumstances, the procedures applicable in relation to personal grievances under the relevant employment contract:
"(b) The employee may make, in relation to those circumstances, a complaint under the Human Rights Act 1993.
"(2)For the purposes of subsection (1) (b) of this section, an employee makes a complaint when the Complaints Division referred to in section 12 (1) of the Human Rights Act 1993 accepts the complaint for investigation or conciliation."

1993, No. 28-The Privacy Act 1993

By repealing section 89, and substituting the following section:
"89. Certain provisions of Human Rights Act 1993 to apply-Sections 89 to 92 and Part IV of the Human Rights Act 1993 shall apply, with such modifications as are necessary, in respect of proceedings under section 82 or section h of this Act as if they were proceedings under section 83 of that Act."

 

THIRD SCHEDULE - ENACTMENTS REPEALED (Section 146)

1971, No. 150-The Race Relations Act 1971. (R.S. Vol. 14, p. 479.) 1977, No. 49-The Human Rights Commission Act 1977. (R.S. Vol. 18, p. 22 7.)

1981, No. 127-The Human Rights Commission Amendment Act 1981. (R.S. Vol. 18, p. 284)

1982, No. 77-The Human Rights Commission Amendment Act 1982. (R.S. Vol. 18, p. 284.)

1983, No. 56-The Human Rights Commission Amendment Act 1983. (R.S. Vol. 18, p. 285.)

1985, No. 23-The Human Rights Commission Amendment Act 1985. (R.S. Vol. 18, p. 287.)

1986, No. 33-The Homosexual Law Reform Act 1986: Section 8.

1987, No. 8-The Official Information Amendment Act 1987: So much of the Third Schedule as relates to the Human Rights Commission Act 1977. (R.S. Vol. 21, p. 648)

1989, No. 44-The Public Finance Act 1989: So much of the First Schedule as relates to the Human Rights Commission Act 1977.

1989, No. 63-The Sale of Liquor Act 1989: So much of the First Schedule as relates to the Human Rights Commission Act 1977.

1989, No. 127-The Race Relations Amendment Act 1989.

1990, No. 41 -The Commerce Amendment Act 1990: Section 45.

1990, No. 126-The National Provident Fund Restructuring Act 1990: So much of the Sixth Schedule as relates to the Race Relations Act 1971, and so much of that Schedule as relates to the Human Rights Commission Act 1977.

1991, No. 22-The Employment Contracts Act 1991: Sections 161 and 162.

1991, No. 29-The Police Amendment Act 1991: Section 14.

1991, No. 60-The judicature Amendment Act 1991: So much of the Schedule as relates to the Human Rights Commission Act 1977.

1991, No. 132-The Human Rights Commission Amendment Act 1991. 1992, No. 16-The Human Rights Commission Amendment Act 1992. 1993, No. 35-The Human Rights Commission Amendment Act 1993.

This Act is administered in the Department of justice

Human Rights Amendment Act 1994 138

An Act to amend the Human Rights Act 1993

BE IT ENACTED by the Parliament of New Zealand as follows:

1.Short Title

This Act may be cited as the Human Rights Amendment Act 1994, and shall be read together with and deemed part of the Human Rights Act 1993 (hereinafter referred to as the principal Act).

Application of Principal Act and Human Rights commission Act 1977 to Superannuation Schemes

2.Application of principal Act to superannuation schemes providing benefits on account of marital status

(1)Notwithstanding any rule of law, nothing in section 22 or section 44 or section 70 of the principal Act shall prevent, or be taken ever to have prevented, the provisions of a superannuation scheme, or the trustees of the scheme, from providing, on the death of a member of the scheme, a benefit for either ---

(a)The spouse of that member; or

(b)The spouse of that member or a person with whom that member was living in a relationship in the nature of a marriage,---

without providing a similar or corresponding or equivalent benefit on the death of other member of the scheme.

(2)Subject to subsection (5) of this section, this section applies in respect of superannuation schemes established before or after the commencement of this Act.

(3)This section applies notwithstanding any judgment, decision, or order of any Court or tribunal given or made before or after the commencement of this Act in proceedings commenced before the commencement of this Act.

(4)Nothing in section 153 (1) of the principal Act limits or affects this section.

(5)Nothing in this section applies to the provision of benefits under a superannuation scheme or by the trustees of a scheme in respect of any person who, at any time on or after the 1st day of January 1996, becomes a member of the scheme unless,---

(a)Immediately before becoming a member, that person was a member of another superannuation scheme that provides or provided, or the trustees of which provide or provided, benefits of a kind referred to in paragraph (a) or paragraph (b) of subsection (1) of this section; and

(b)That person became a member of the first-mentioned scheme as a result of a requirement, or the exercise of a right, to leave that other scheme by reason of any merger, takeover, or restructuring of, or reorganisation of the business of, that person's employer.

(6)Nothing in this section affects the validity of any amendment to the instrument or conditions governing a superannuation scheme made pursuant to section 72 of the principal Act before the commencement of this Act.

3.Application of principal Act to superannuation schemes providing benefits for children and dependants

(1)For the avoidance of doubt, it is hereby declared that nothing in section 22 or section 44 or section 70 of the principal Act shall prevent, or be taken ever to have prevented, the provisions of a superannuation scheme, or the trustees of the scheme, from providing, on the death of a member of the scheme, a benefit for a child or dependant of that member's family, including a child or dependant belonging to particular class determined by reference to age, disability, or employment status without providing a similar or corresponding or equivalent benefit on the death of other members of the scheme.

(2)This section applies in respect of superannuation schemes established before or after the commencement of this Act.

(3)This section applies notwithstanding any judgment, decision, or order of any Court or tribunal given or made before or after the commencement of this Act in proceedings commenced before the commencement of this Act.

4.Savings in respect of certain superannuation schemes

(1)For the avoidance of doubt, it is hereby declared that nothing in section 22 or section 44 of the principal Act relating to different treatment on the ground of sex or marital status shall apply, or be taken ever to have applied, to ---

(a)A superannuation scheme to which subsection (2) of section 88 of the Human Rights Commission Act 1977 applied, except in respect of a person who became a member of the scheme on or after the 1st day of April 1980 or to whom amendments to the scheme were applied pursuant to subsection (4) of that section; or

(b)A superannuation scheme established as an alternative to making amendments of the kind referred to in subsection (4) of section 88 of the Human Rights Commission Act 1977 to an existing scheme, except in respect of a person who became a member of the scheme by virtue of subsections (4) and (5) of that section.

(2)For the avoidance of doubt, it is hereby further declared that where any superannuation scheme was amended for the purpose of ensuring that its operation did not involve a breach of section 15 (1) or section 24 (1) of the Human Rights Commission Act 1977, nothing in the principal Act, and nothing in those amendments, shall deprive, or be taken ever to have deprived, any person who joined the scheme before the date on which those amendments came into force of any right or option to retire at a particular age or on a particular date or to become entitled under the scheme to a pension or other benefit, unless that person relinquishes that right or option.

5.Application of Human Rights Commission Act 1977 to superannuation schemes

(1)Notwithstanding any rule of law, nothing in section 15 (1) or section 24 (1) or section 88 of the Human Rights Commission Act 1977 shall be taken ever to have prevented the provisions of a superannuation scheme, or the trustees of the scheme, from providing, on the death of a member of the scheme, a benefit for either---

(a)The spouse of that member ; or

(b)The spouse of that member or a person with whom that member was living in a relationship in the nature of a marriage,--- without providing a similar or corresponding or equivalent benefit on the death of other members of the scheme.

(2)This section applies notwithstanding any judgment, decision, or order of any Court or tribunal given or made before or after the commencement of this Act in proceedings commenced before the commencement of this Act.

(3)Nothing in section 153 (1) of the principal Act limits or affects this section.

(4)Nothing in this section affects the validity of any amendment to the instrument or conditions governing a superannuation scheme made pursuant to section 90 of the Human Rights Commission Act 1977.

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