Subpart 1. Application of Part to persons and bodies referred to in section 3 of New Zealand Bill of Rights Act 1990
21A. Application of this Part limited if section 3 of New Zealand Bill of Rights Act 1990 applies
The only provisions of this Part that apply to an act or omission of a person or body described in subsection (2) are—
sections 21 to 35 (which relate to discrimination in employment matters), 61 to 64 (which relate to racial disharmony, and social and racial harassment) and 66 (which relates to victimisation); and
sections 65 and 67 to 74, but only to the extent that those sections relate to conduct that is unlawful under any of the provisions referred to in paragraph (a).
The persons and bodies referred to in subsection (1) are the ones referred to in section 3 of the New Zealand Bill of Rights Act 1990, namely—
the legislative, executive, and judicial branches of the Government of New Zealand; and
every person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.
Subpart 2. Acts or omissions authorised or required by law
21B. Relationship between this Part and other law
To avoid doubt, an act or omission of any person or body is not unlawful under this Part if that act or omission is authorised or required by an enactment or otherwise by law.
Nothing in this Part affects the New Zealand Bill of Rights Act 1990.
Subpart 3. Prohibited grounds of discrimination
21. Prohibited grounds of discrimination
For the purposes of this Act, the prohibited grounds of discrimination are—
sex, which includes pregnancy and childbirth:
marital status, which means being—
single; or
married, in a civil union, or in a de facto relationship; or
the surviving spouse of a marriage or the surviving partner of a civil union or de facto relationship; or
separated from a spouse or civil union partner; or
a party to a marriage or civil union that is now dissolved, or to a de facto relationship that is now ended:
religious belief:
ethical belief, which means the lack of a religious belief, whether in respect of a particular religion or religions or all religions:
colour:
race:
ethnic or national origins, which includes nationality or citizenship:
disability, which means—
physical disability or impairment:
physical illness:
psychiatric illness:
intellectual or psychological disability or impairment:
any other loss or abnormality of psychological, physiological, or anatomical structure or function:
reliance on a guide dog, wheelchair, or other remedial means:
the presence in the body of organisms capable of causing illness:
age, which means,—
for the purposes of sections 22 to 41 and section 70 and in relation to any different treatment based on age that occurs in the period beginning with 1 February 1994 and ending with the close of 31 January 1999, any age commencing with the age 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 7 of the New Zealand Superannuation and Retirement Income Act 2001 (irrespective of whether or not the particular person qualifies for national superannuation at that age or any other age):
for the purposes of sections 22 to 41 and section 70 and in relation to any different treatment based on age that occurs on or after 1 February 1999, any age commencing with the age of 16 years:
for the purposes of any other provision of Part 2, any age commencing with the age of 16 years:
political opinion, which includes the lack of a particular political opinion or any political opinion:
employment status, which means—
being unemployed; or
being a recipient of a benefit under the Social Security Act 1964 or an entitlement under the Accident Compensation Act 2001:
family status, which means—
having the responsibility for part-time care or full-time care of children or other dependants; or
having no responsibility for the care of children or other dependants; or
being married to, or being in a civil union or de facto relationship with, a particular person; or
being a relative of a particular person:
sexual orientation, which means a heterosexual, homosexual, lesbian, or bisexual orientation.
Each of the grounds specified in subsection (1) is a prohibited ground of discrimination, for the purposes of this Act, if—
it pertains to a person or to a relative or associate of a person; and
it either—
currently exists or has in the past existed; or
is suspected or assumed or believed to exist or to have existed by the person alleged to have discriminated.
Subpart 4. Discrimination in employment matters
22. Employment
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,—
to refuse or omit to employ the applicant on work of that description which is available; or
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
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
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.
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.
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.
Subpart 5. Exceptions in relation to employment matters
24. Exception in relation to crews of ships and aircraft
Nothing in section 22 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.
25. Exception in relation to work involving national security
Nothing in section 22 shall apply to any restrictions on the employment of any person on work involving the national security of New Zealand—
by reference to his or her—
religious or ethical belief; or
political opinion; or
disability, within the meaning of section 21(1)(h)(iii) or section 21(1)(h)(iv); or
family status, within the meaning of section 21(1)(l)(iii) or section 21(1)(l)(iv); or
national origin; or
by reference to the national origin of any relative of that person.
It shall not be a breach of section 22 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.
26. Exception in relation to work performed outside New Zealand
Nothing in section 22 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—
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are to be performed wholly or mainly outside New Zealand; and
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.
27. Exceptions in relation to authenticity and privacy
Nothing in section 22 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.
Nothing in section 22 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.
Nothing in section 22 shall prevent different treatment based on sex where—
the position needs to be held by one sex to preserve reasonable standards of privacy; or
the nature or location of the employment makes it impracticable for the employee to live elsewhere than in premises provided by the employer, and—
the only premises available (being premises in which more than 1 employee is required to sleep) are not equipped with separate sleeping accommodation for each sex; and
it is not reasonable to expect the employer to equip those premises with separate accommodation, or to provide separate premises, for each sex.
Nothing in section 22 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.
Where, as a term or condition of employment, a position ordinarily obliges or qualifies the holder of that position to live in premises provided by the employer, the employer does not commit a breach of section 22 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.
28. Exceptions for purposes of religion
Nothing in section 22 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.
Nothing in section 22 shall prevent different treatment based on religious or ethical belief where—
that treatment is accorded under section 65 of the Private Schools Conditional Integration Act 1975; or
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)—
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
are those of a teacher in a private school; or
consist of acting as a social worker on behalf of an organisation whose members comprise solely or principally adherents of that belief.
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.
29. Further exceptions in relation to disability
Nothing in section 22 shall prevent different treatment based on disability where—
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
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.
Nothing in subsection (1)(b) shall apply if the employer could, without unreasonable disruption, take reasonable measures to reduce the risk to a normal level.
Nothing in section 22 shall apply to terms of employment or conditions of work that are set or varied after taking into account—
any special limitations that the disability of a person imposes on his or her capacity to carry out the work; and
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
Nothing in section 22(1)(a) or section 22(1)(d) shall apply in relation to any position or employment where being of a particular age or in a particular age group is a genuine occupational qualification for that position or employment, whether for reasons of safety or for any other reason.
Nothing in section 22(1)(b) 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 first-mentioned person has not attained a particular age, not exceeding 20 years of age.
Nothing in section 22(1)(a) shall prevent preferential treatment based on age accorded to persons who are to be paid in accordance with subsection (2).
30A. Exception in relation to employment-related retirement benefits
Nothing in section 22(1)(b) prevents different treatment based on age with respect to, or in any way related to, the payment of a benefit to an employee on retirement if—
the employee’s entitlement to that benefit (the retirement benefit), or the calculation of that retirement benefit, is determined in whole or in part (and whether directly or indirectly) by the employee’s age; and
the retirement benefit is a term of a written employment contract that was in force on or before 1 February 1999; and
the employee was, on or before 1 February 1999, a party to that employment contract.
If a retirement benefit was a term of an employee’s written employment contract on 1 February 1999, subsection (1) continues to apply in relation to the payment of that retirement benefit even if either or both of the following things occur after that date:
the employee and the employer enter into a new written employment contract or employment agreement under which the employee remains entitled to that retirement benefit:
a different person becomes the employee’s employer as a result of a merger, takeover, restructuring, or reorganisation, but the employee remains entitled to that retirement benefit by virtue of any enactment or agreement.
This section does not limit section 149.
31. Exception in relation to employment of a political nature
Nothing in section 22 shall prevent different treatment based on political opinion where the position is one as—
a political adviser or secretary to a member of Parliament; or
a political adviser to a member of a local authority; or
a political adviser to a candidate seeking election to the House of Representatives or to a local authority within the meaning of the Local Electoral Act 2001; or
a member of the staff of a political party.
32. Exception in relation to family status
Nothing in section 22 shall prevent restrictions imposed by an employer—
on the employment of any person who is married to, or in a civil union or in a de facto relationship with, or who is a relative of, another employee if—
there would be a reporting relationship between them; or
there is a risk of collusion between them to the detriment of the employer; or
on the employment of any person who is married to, or in a civil union or in a de facto relationship 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
[Repealed]
34. Regular forces
Nothing in section 22(1)(c) or section 22(1)(d) 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.
[Repealed]
35. General qualification on exceptions
No employer shall be entitled, by virtue of any of the exceptions in this Part, 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.
Subpart 6. Discrimination in partnerships
36. Partnerships
It shall be unlawful for a firm, or for persons jointly promoting the formation of a firm,—
to refuse or to omit to offer a person admission to the firm as a partner; or
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.
It shall be unlawful for a firm—
to deny any partner increased status in the firm or an increased share in the capital or profits of the firm; or
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.
It is unlawful for a firm, or for persons jointly promoting the formation of a firm, to fail to provide special services or facilities that could reasonably be provided by the firm, or those persons, in the circumstances and that, if provided, would enable a person with a disability—
to be accepted as a partner and remain in partnership; or
to be offered the same terms and conditions as a partner (including terms and conditions as to status in the firm or entitlements to shares in capital or profits) that are made available to other members or prospective members of the firm.
Nothing in this section prevents the fixing of reasonable terms and conditions in relation to a partner or prospective partner, who by reason of disability or age—
has a restricted capacity to participate or continue to participate in the partnership, that cannot be restored to normal by the provision of any special services or facilities required to be provided under subsection (2A); or
requires special conditions if he or she is to participate or continue to participate in the partnership, even if any special services or facilities required to be provided under subsection (2A) are provided.
Nothing in this section applies in respect of a person with a disability, 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 accept or remain in partnership or be given the same terms and conditions as a partner (including terms and conditions as to status in the firm or entitlement to shares in capital or profits) that were made available to other members or prospective members of the firm; and
it is not reasonable to take that risk.
Subsection (4) does not apply if the firm, or persons jointly promoting the formation of a firm, could, without unreasonable disruption, take reasonable measures to reduce the risk to a normal level.
Subpart 7. Discrimination by industrial and professional associations, qualifying bodies, and vocational training bodies
37. Organisations of employees or employers and professional and trade associations
It shall be unlawful for an organisation to which this section applies, or for any person acting or purporting to act on behalf of any such organisation,—
to refuse or omit to accept any person for membership; or
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
to deprive a person of membership, or suspend him or her, in circumstances in which other persons would not be deprived of membership or suspended,— by reason of any of the prohibited grounds of discrimination.
It is unlawful for an organisation to which this section applies, or for any person acting or purporting to act on behalf of any such organisation, to fail to provide special services or facilities that could reasonably be provided by the organisation in the circumstances and that, if provided, would enable a person with a disability to—
be accepted and remain in membership; or
be given equal access to benefits, facilities, or services provided by the organisation (including the right to stand for election and hold office).
Nothing in this section shall prevent an organisation to which this section applies from charging different fees to persons in different age groups.
Nothing in this section applies in respect of a person with a disability, 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 accept or remain in membership or be given equal access to benefits, facilities, or services provided by the organisation (including the right to stand for election and hold office); and
it is not reasonable to take that risk.
Subsection (2A) does not apply if the organisation could, without unreasonable disruption, take reasonable measures to reduce the risk to a normal level.
This section applies to an organisation of employees, an organisation of employers, or any other organisation that exists for the purposes of members who carry on a particular profession, trade, or calling.
38. Qualifying bodies
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 any person acting or purporting to act on behalf of any such authority or body,—
to refuse or omit to confer that approval, authorisation, or qualification on a person; or
to confer that approval, authorisation, or qualification on less favourable terms and conditions than would otherwise be made available; or
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.
For the purposes of this section confer includes renew or extend.
39. Exceptions in relation to qualifying bodies
Nothing in section 38 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.
Nothing in section 38 shall prevent different treatment based on disability where—
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
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
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.
For the purposes of applying subsection (2)(a) and (b), an authority or body referred to in section 38 must,—
in the case of subsection (2)(a), take account of whether a disabled person could perform the required duties if he or she was provided with special services or facilities that could reasonably be provided by an employer or by any other relevant person:
in the case of subsection (2)(b), take account of whether the risk of harm referred to in that paragraph could be reduced to a normal level, without unreasonable disruption to an employer or to any other relevant person.
Nothing in section 38 shall apply where—
the authority or body imposes a reasonable and appropriate minimum age under which the approval, authorisation, or qualification will not be conferred; or
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.
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,—
to refuse or omit to provide training, or facilities or opportunities for training; or
to provide training, or facilities or opportunities for training, on less favourable terms and conditions than would otherwise be made available; or
to terminate training, or facilities or opportunities for training,—
by reason of any of the prohibited grounds of discrimination.
41. Exceptions in relation to vocational training bodies
Nothing in section 40 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.
Subject to subsection (3), nothing in section 40 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.
Nothing in subsection (2) 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.
Nothing in section 40 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.
Nothing in section 40 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.
Nothing in section 40 shall prevent an organisation or association from charging different fees to persons in different age groups.
Nothing in section 40 makes it unlawful to fail to provide special services or facilities designed for a specified purpose if those special services or facilities cannot reasonably be provided in the circumstances.
In subsection (7), a specified purpose means 1 or more of the following purposes:
to enable a person with a disability to undergo and remain in training; or
to provide a person with a disability with facilities or opportunities for training; or
to provide a person with a disability with facilities or opportunities for training on no less favourable terms and conditions than would otherwise be made available.
Subpart 8. Discrimination in access to places, vehicles, and facilities
42. Access by the public to places, vehicles, and facilities
It shall be unlawful for any person—
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
to refuse any other person the use of any facilities in that place or vehicle which are available to members of the public; or
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.
In this section the term vehicle includes a vessel, an aircraft, or a hovercraft.
43. Exceptions in relation to access by the public to places, vehicles, and facilities
Section 42 shall not prevent the maintenance of separate facilities for each sex on the ground of public decency or public safety.
Nothing in section 42 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 access to or use any place or vehicle when it would not be reasonable to require the provision of such special services or facilities.
Nothing in subsection (2) limits section 118 of the Building Act 2004.
Subject to subsection (5), nothing in section 42 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.
Subsection (4) 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.
Subpart 9. Discrimination in provision of goods and services
44. Provision of goods and services
It shall be unlawful for any person who supplies goods, facilities, or services to the public or to any section of the public—
to refuse or fail on demand to provide any other person with those goods, facilities, or services; or
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.
For the purposes of subsection (1), but without limiting the meaning of the terms 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.
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 fails 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.
Subject to subsection (3), 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.
45. Exception in relation to courses and counselling
Nothing in section 44 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 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.
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 by exercising the skill in relation to one sex only, in accordance with that person’s normal practice.
48. Exception in relation to insurance
It shall not be a breach of section 44 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 for persons with a disability or for persons of different ages if the different treatment—
is based on—
actuarial or statistical data, upon which it is reasonable to rely, relating to life-expectancy, accidents, or sickness; or
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
is reasonable having regard to the applicability of the data or advice or opinion, and of any other relevant factors, to the particular circumstances.
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—
require justification to be provided for reliance on the data or advice or opinion and for the different treatment; and
request the views of an actuary on the justification for the reliance and for the different treatment.
49. Exception in relation to sport
Subject to subsection (2), nothing in section 44 shall prevent the exclusion of persons of one sex from participation in any competitive sporting activity in which the strength, stamina, or physique of competitors is relevant.
Subsection (1) does not apply in relation to the exclusion of persons from participation in—
the coaching of persons engaged in any sporting activity; or
the umpiring or refereeing of any sporting activity; or
the administration of any sporting activity; or
sporting activities by persons who have not attained the age of 12 years.
It shall not be a breach of section 44 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.
It shall not be a breach of section 44 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 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 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 for a person who supplies facilities or services—
to refuse to provide those facilities or services to any person if—
that person’s disability requires those facilities or services to be provided in a special manner; and
the person who supplies the facilities or services cannot reasonably be expected to provide them in that special manner; or
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—
that person’s disability requires those facilities or services to be provided in a special manner; and
the person who supplies the facilities or services cannot reasonably be expected to provide them without requiring more onerous terms.
Subpart 10. Discrimination in provision of land, housing, and other accommodation
53. Land, housing, and other accommodation
It shall be unlawful for any person, on his or her own behalf or on behalf or purported behalf of any principal,—
to refuse or fail to dispose of any estate or interest in land or any residential or business accommodation to any other person; or
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
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
to deny any person, directly or indirectly, the right to occupy any land or any residential or business accommodation; or
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.
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.
54. Exception in relation to shared residential accommodation
Nothing in section 53 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.
55. Exception in relation to hostels, institutions, etc
Nothing in section 53 shall apply to accommodation in any hostel or in any establishment (such as a hospital, club, school, university, religious institution, or retirement village), or in 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.
56. Further exception in relation to disability
Subject to subsection (2), nothing in section 53 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.
Subsection (1) 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.
Nothing in section 53 makes it unlawful to fail to provide special services or facilities designed to make accommodation suitable for occupation by a person with a disability, if those special services or facilities cannot reasonably be provided in the circumstances.
Subpart 11. Discrimination in access to educational establishments
57. Educational establishments
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,—
to refuse or fail to admit a person as a pupil or student; or
to admit a person as a pupil or a student on less favourable terms and conditions than would otherwise be made available; or
to deny or restrict access to any benefits or services provided by the establishment; or
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.
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.
58. Exceptions in relation to establishments for particular groups
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 in a particular age group, or the authority responsible for the control of any such establishment, does not commit a breach of section 57 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.
Nothing in section 57 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.
Nothing in section 57 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.
Nothing in section 57 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.
Nothing in section 57 shall prevent an organisation or association from charging different fees to persons in different age groups.
59. Exception in relation to courses and counselling
Nothing in section 57 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
Nothing in section 57 applies 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 an establishment referred to in that section or to enable the person to derive substantial benefits from that programme).
Subject to subsection (3), nothing in section 57 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.
Nothing in subsection (2) 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.
Subpart 11. Other forms of discrimination
61. Racial disharmony
It shall be unlawful for any person—
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
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 any meeting to which the public are invited or have access, words which are threatening, abusive, or insulting; or
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.
It shall not be a breach of subsection (1) 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.
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.
62. Sexual harassment
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)) 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.
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)) 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—
is unwelcome or offensive to that person (whether or not that is conveyed to the first-mentioned person); and
is either repeated, or of such a significant nature, that it has a detrimental effect on that person in respect of any of the areas to which this subsection is applied by subsection (3).
The areas to which subsections (1) and (2) apply are—
the making of an application for employment:
employment, which term includes unpaid work:
participation in, or the making of an application for participation in, a partnership:
membership, or the making of an application for membership, of an industrial union or professional or trade association:
access to any approval, authorisation, or qualification:
vocational training, or the making of an application for vocational training:
access to places, vehicles, and facilities:
access to goods and services:
access to land, housing, or other accommodation:
education.
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
It shall be unlawful for any person to use language (whether written or spoken), or visual material, or physical behaviour that—
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
is hurtful or offensive to that other person (whether or not that is conveyed to the first-mentioned person); and
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).
The areas to which subsection (1) applies are—
the making of an application for employment:
employment, which term includes unpaid work:
participation in, or the making of an application for participation in, a partnership:
membership, or the making of an application for membership, of an industrial union or professional or trade association:
access to any approval, authorisation, or qualification:
vocational training, or the making of an application for vocational training:
access to places, vehicles, and facilities:
access to goods and services:
access to land, housing, or other accommodation:
education.
64. Choice of procedures
[Repealed]
65. Indirect discrimination
Where any conduct, practice, requirement, or condition that is not apparently in contravention of any provision of this Part has the effect of treating a person or group of persons differently on 1 of the prohibited grounds of discrimination in a situation where such treatment would be unlawful under any provision of this Part 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.
66. Victimisation
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—
on the ground that that person, or any relative or associate of that person,—
intends to make use of his or her rights under this Act or to make a disclosure under the Protected Disclosures Act 2000; or
has made use of his or her rights, or promoted the rights of some other person, under this Act, or has made a disclosure, or has encouraged disclosure by some other person, under the Protected Disclosures Act 2000; or
has given information or evidence in relation to any complaint, investigation, or proceeding under this Act or arising out of a disclosure under the Protected Disclosures Act 2000; or
has declined to do an act that would contravene this Act; or
has otherwise done anything under or by reference to this Act; or
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) 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.
Subsection (1) 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.
67. Advertisements
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.
For the purposes of subsection (1), use of a job 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.
68. Liability of employer and principals
Subject to subsection (3), anything done or omitted by a person as the employee of another person shall, for the purposes of this Part, 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.
Anything done or omitted by a person as the agent of another person shall, for the purposes of this Part, be treated as done or omitted by 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.
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.
69. Further provision in relation to sexual or racial harassment in employment
Where—
a request of the kind described in section 62(1) is made to an employee; or
an employee is subjected to behaviour of the kind described in section 62(2) or section 63—
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.
The employer, on receiving a complaint under subsection (1),—
shall inquire into the facts; and
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.
Where any person, being a person in relation to whom an employee has made a complaint under subsection (1),—
either—
makes to that employee after the complaint a request of the kind described in section 62(1); or
subjects that employee after the complaint to behaviour of the kind described in section 62(2) or section 63; and
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.
Subpart 12. Special provisions relating to superannuation schemes
70. Superannuation schemes
Subject to subsection (3), nothing in section 22 or section 44 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 1 January 1996.
It shall continue to be lawful for the provisions of a superannuation scheme to provide—
different benefits for members of each sex on the basis of the same contributions; or
the same benefits for members of each sex on the basis of different contributions,— if the different treatment—
is based on actuarial or statistical data, upon which it is reasonable to rely, relating to life-expectancy, accidents, or sickness; and
is reasonable having regard to the applicability of the data, and of any other relevant factors, to the particular circumstances.
It shall continue to be unlawful to require an applicant for membership of a superannuation scheme to have attained a minimum age.
Nothing in section 22 or section 44 shall prevent the provisions of a superannuation scheme from—
providing or requiring different contributions for members; or
providing benefits for members that differ in nature or amount,—
by reason of the disability or age of those members, if the different treatment—
is based on—
actuarial or statistical data, upon which it is reasonable to rely, relating to life-expectancy, accidents, or sickness; or
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
is reasonable having regard to the applicability of the data or advice or opinion, and of any other relevant factors, to the particular circumstances.
Nothing in section 22 or section 44 shall prevent the provisions of a superannuation scheme, or the trustees of the scheme, from—
requiring an applicant for membership of the scheme to be under a specified maximum age; or
permitting a member of the scheme to elect to make increased or reduced contributions to the scheme either temporarily or indefinitely; or
specifying an age of eligibility for each type of benefit provided for members of the scheme; or
subject to section 9C of the Superannuation Schemes Act 1989, requiring persons who become members of the scheme on or after 1 January 1995 to leave the scheme on reaching the age at which persons of that age ordinarily qualify for national superannuation under section 7 of the New Zealand Superannuation and Retirement Income Act 2001; or
providing benefits on the death or disability of members of the scheme that decrease in value as the age of members increases; or
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.
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—
require justification to be provided for reliance on the data or advice or opinion and for the different treatment; and
request the views of an 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 FMA, report to the Minister on whether discrimination on the prohibited grounds has been eliminated from superannuation schemes.
72. Power to vary trust deeds
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 give effect to the provisions of sections 22, 44, and 70.
Every amendment to the provisions of an instrument or conditions governing any superannuation scheme made under subsection (1) on or after the commencement of the Human Rights Amendment Act 1994 must be made by deed.
Subpart 13. Other matters
73. Measures to ensure equality
Anything done or omitted which would otherwise constitute a breach of any of the provisions of this Part shall not constitute such a breach if—
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; and
those persons or groups need or may reasonably be supposed to need assistance or advancement in order to achieve an equal place with other members of the community.
Nothing in this Part—
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
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.
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 woman’s pregnancy or childbirth; or
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.
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