Part 3. Resolution of disputes about compliance with Part 1A and Part 2
75. Object of this Part
The object of this Part is to establish procedures that—
facilitate the provision of information to members of the public who have questions about discrimination; and
recognise that disputes about compliance with Part 1A or Part 2 are more likely to be successfully resolved if those disputes can be resolved promptly by the parties themselves; and
recognise that, if disputes about compliance with Part 1A or Part 2 are to be resolved promptly, expert problem-solving support, information, and assistance needs to be available to the parties to those disputes; and
recognise that the procedures for dispute resolution under this Part need to be flexible; and
recognise that judicial intervention at the lowest level needs to be that of a specialist decision-making body that is not inhibited by strict procedural requirements; and
recognise that difficult issues of law may need to be determined by higher courts.
76. Functions of Commission under this Part
The primary functions of the Commission under this Part are—
to provide information to members of the public who have questions about discrimination; and
to facilitate the resolution of disputes about compliance with Part 1A or Part 2, by the parties concerned, in the most efficient, informal, and cost-effective manner possible.
The Commission has, in order to carry out its function under subsection (1)(b), the following functions:
to receive and assess a complaint alleging that there has been a breach of Part 1A or Part 2, or both:
to gather information in relation to a complaint of that kind (including one referred back to it by the Director under section 90(1)(b), or the Tribunal under section 92D) for the purposes of paragraphs (c) and (d):
to offer services designed to facilitate resolution of the complaint, including information, expert problem-solving support, mediation, and other assistance:
to take action or further action under this Part in relation to the complaint, if the complainant or aggrieved person wishes to proceed with it, unless section 80(2) or (3) applies:
to provide information gathered in relation to a complaint to the parties concerned.
77. Dispute resolution services
The Commission must provide dispute resolution services for the purposes of carrying out its functions under section 76.
Services provided under this section may include—
the provision of general information about discrimination and legal obligations in relation to discrimination:
the provision of information about what services are available for persons who have disputes about compliance with Part 1A or Part 2:
the provision of a venue for, and a mediator at, any dispute resolution meeting that—
is designed to enable each party to discuss and seek to resolve any complaint, without prejudice to his or her position; and
is convened at the request, or with the agreement of, the parties or, if section 84(4) applies, by the Commission:
other services (of a type that can address a variety of circumstances) that assist persons to resolve, promptly and effectively, their disputes about compliance with Part 1A or Part 2.
78. Method of providing services
Services provided under section 77 may be provided in any manner, including—
by a telephone, facsimile, internet, or email service (whether as a means of explaining where information can be found or as a means of actually providing the information or of otherwise seeking to resolve the problem); or
by publishing pamphlets, brochures, booklets, or codes; or
by specialists who—
respond to requests or themselves identify how, where, and when their services can best support the object of this Part; or
provide their services in the manner, and at the time and place that is, most likely to resolve the problem or dispute in question; or
provide their services in all of the ways described in this paragraph.
79. How complaints received to be treated
This section applies if the Commission receives, under section 76(2)(a), a complaint alleging that there has been a breach of Part 1A or Part 2 or both Parts.
If the complaint or part of it concerns an enactment, or an act or omission that is authorised or required by an enactment, the complaint or relevant part of it must be treated only as a complaint that the enactment is in breach of Part 1A.
Despite every other provision of this section, if the complaint or part of it concerns a judgment or other order of a court, or an act or omission of a court affecting the conduct of any proceedings, the Commission must take no further action in relation to the complaint or relevant part of it.
If the complaint or part of it concerns an act or omission by a person or body referred to in section 3 of the New Zealand Bill of Rights Act 1990, and neither subsection (2) nor subsection (3) applies, the complaint or relevant part of it—
must be treated only as a complaint that there is a breach of Part 1A, unless the act or omission complained of involves conduct that—
is unlawful under any of sections 22, 23, 61 to 63, and 66; or
is unlawful under any of sections 65 and 67 to 74, but only to the extent that those sections relate to conduct that is unlawful under any provision referred to in subparagraph (i):
must be treated only as a complaint that there has been a breach of the relevant provision or provisions of Part 2 if the act or omission complained of involves conduct that is unlawful under any of sections 22, 23, 61 to 63, and 66.
If the complaint or relevant part of it concerns a breach of Part 2, and none of subsections (2) to (4) applies to the complaint or relevant part of it, the complaint or relevant part of it must be treated only as a complaint that there has been a breach of the relevant provision or provisions of Part 2.
Nothing in this section prevents the Commission from involving any person that it considers appropriate in information gathering and the resolution of disputes.
79A. Choice of procedures
If the circumstances giving rise to a complaint under Part 2 are such that an employee would also be entitled to pursue a personal grievance under the Employment Relations Act 2000, the employee may take one, but not both, of the following steps:
the employee may make in relation to those circumstances a complaint under this Act:
the employee may, if the grievance is not otherwise resolved, apply to the Employment Relations Authority for the resolution of the grievance under the Employment Relations Act 2000.
To avoid doubt, a complaint referred to in subsection (1) includes, but is not limited to, a complaint about sexual harassment or racial harassment.
For the purposes of subsection (1)(a), an employee makes a complaint when proceedings about that complaint are commenced by the complainant or the Commission.
If an employee makes a complaint under subsection (1)(a), the employee may not exercise or continue to exercise any rights relating to the subject matter of the complaint that the employee may have under the Employment Relations Act 2000.
If an employee applies to the Employment Relations Authority for a resolution of the grievance under subsection (1)(b), the employee may not exercise or continue to exercise any rights relating to the subject matter of the grievance that the employee may have under this Act.
80. Taking action or further action in relation to complaint
The Commission may only take action or further action under this Part in relation to a complaint if the complainant or person alleged to be aggrieved (if not the complainant) informs the Commission that he or she wishes to proceed with the complaint.
The Commission may decline to take action or further action under this Part in relation to a complaint if 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 Commission.
The Commission may also decline to take action or further action under this Part in relation to a complaint if, in the Commission’s opinion,—
the subject matter of the complaint is trivial; or
the complaint is frivolous or vexatious or is not made in good faith; or
having regard to all the circumstances of the case, it is unnecessary to take further action in relation to the complaint; or
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, that it would be reasonable for the complainant or the person alleged to be aggrieved (if not the complainant) to exercise.
If the Commission decides to take no action or no further action in relation to a complaint, it must inform the complainant or the person alleged to be aggrieved (if not the complainant) and the person against whom the complaint is made—
of that decision; and
of the reasons for that decision; and
of his or her right, under section 92B, to bring proceedings before the Human Rights Review Tribunal.
81. Commission to inform parties of process
Before gathering information about a complaint, the Commission must comply with subsections (2) and (4).
The Commission must inform the following persons of the Commission’s intention to gather information under section 82, and provide them with general information about the matters stated in subsection (3):
the complainant (if any); and
any person alleged to be aggrieved (if not the complainant); and
the person against whom the complaint is made; and
if the complaint alleges a breach of Part 1A, or alleges a breach of Part 2 by a person or body referred to in section 3 of the New Zealand Bill of Rights Act 1990, the Attorney-General:
any other person or body that the Commission considers relevant.
The matters referred to in subsection (2) are—
rights and obligations under this Act; and
processes that apply to complaints under this Act; and
other services that may help the parties to a complaint secure a settlement of the matter.
The Commission must also inform the person against whom the complaint was made and, if subsection (2)(d) applies, the Attorney-General—
of the details of the complaint (if any); and
of the right of that person and, if subsection (2)(d) applies, of the Attorney-General to submit to the Commission, within a reasonable time, information in response to the complaint.
A requirement under this section to inform a person is satisfied if all reasonable efforts have been made to inform the person.
82. Information gathering and disclosure by Commission
When the Commission gathers information about a complaint under section 76(2)(b) for the purposes of section 76(2)(c) or (d)—
that process must be conducted in private:
the Commission may hear or obtain information from any persons it thinks fit:
except as provided in section 81(4)(b), no person is entitled as of right to be heard by the Commission.
The Commission must make all reasonable efforts to give all parties concerned all relevant information gathered (if any) by it in relation to a complaint promptly after the information is gathered.
83. Settlement
This section applies if at any time it appears to the Commission from a complaint (including one referred back to the Commission by the Director, under section 90(1)(b), or the Tribunal, under section 92D), or from information gathered in relation to the complaint (including any response made under section 81(4)(b)), that it may be possible to reach a settlement.
The Commission must use its best endeavours to assist the parties to secure a settlement.
In this section, settlement—
means the agreement of the parties concerned on actions that settle the matter, which may include the payment of compensation or the tendering of an apology; and
includes a satisfactory assurance by the person to whom the complaint relates against the repetition of the conduct that was the subject matter of the complaint or against further conduct of a similar kind.
84. Reference of complaint to Director or from Director or Tribunal
The complainant, aggrieved person, or party seeking to enforce a settlement may refer a complaint to the Director so that he or she may decide, under section 90(1)(a) or (c), whether to represent that person in proceedings before the Human Rights Tribunal.
The Commission must promptly inform all parties concerned of every reference of a complaint back to the Commission, whether the reference back is one by the Director, under section 90(1)(b), or one by the Tribunal, under section 92D.
A requirement under this section to inform a person is satisfied if all reasonable efforts have been made to inform the person.
If a complaint is referred back to the Commission by the Director, under section 90(1)(b), or by the Tribunal, under section 92D, the Commission may, without limiting its other powers, require the parties to attend a dispute resolution meeting or other form of mediation designed to facilitate resolution of the complaint.
85. Confidentiality of information disclosed at dispute resolution meeting
Except with the consent of the parties or the relevant party, persons referred to in subsection (2) must keep confidential—
a statement, admission, or document created or made for the purposes of a dispute resolution meeting; and
information that is disclosed orally for the purposes of, and in the course of, a dispute resolution meeting.
Subsection (1) applies to every person who—
is a mediator for a dispute resolution meeting; or
attends a dispute resolution meeting; or
is a person employed or engaged by the Commission; or
is a person who assists either a mediator at a dispute resolution meeting or a person who attends a dispute resolution meeting.
86. Evidence as to dispute resolution meeting
No mediator at a dispute resolution meeting may give evidence in any proceedings, whether under this Act or any other Act, about—
the meeting; or
anything related to the meeting that comes to his or her knowledge for the purposes of, or in the course of, the meeting.
No evidence is admissible in any court, or before any person acting judicially, of any statement, admission, document, or information that, under section 85(1), is required to be kept confidential.
87. Certain information not to be made available
Any statement, admission, document, or information disclosed or made to the mediator at a dispute resolution meeting for the purposes of the dispute resolution meeting must not be made available under the Official Information Act 1982 or the Local Government Official Information and Meetings Act 1987 by a person to whom section 85(1) applies, except with the consent of the parties or the relevant party.
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88. Limits on effect of section 80(1) or sections 85 to 87
Nothing in section 80(1) or sections 85 to 87—
prevents the discovery or affects the admissibility of any evidence (being evidence that is otherwise discoverable or admissible and that existed independently of the mediation process) just because the evidence was presented for the purposes of, or in the course of, a dispute resolution meeting; or
prevents the gathering of information by the Commission for research or educational purposes so long as the parties and the specific matters in issue between them are not identifiable; or
prevents the disclosure by any person employed or engaged by the Commission to any other person employed or engaged by the Commission of matters that need to be disclosed for the purposes of giving effect to this Act; or
prevents the disclosure of information by any person, if that person has reasonable grounds to believe that disclosure is necessary to prevent, or minimise the danger of, injury to any person or damage to any property.
89. Enforcement of terms of settlement agreed by parties
A settlement between parties to a complaint may be enforced by proceedings before the Tribunal brought under section 92B(4)—
by the complainant (if any) or the aggrieved person (if not the complainant); or
by the person against whom the complaint was made.
90. Functions of Director of Human Rights Proceedings under this Part
The Director’s functions under this Part include, in relation to a complaint,—
deciding, in accordance with sections 91(1) and 92, whether, and to what extent, to provide representation for a party who requests the Director to provide representation in proceedings before the Tribunal or in related proceedings seeking to enforce a settlement reached on a previous occasion (including a settlement secured at a dispute resolution meeting), and providing representation for the party accordingly:
deciding, in accordance with section 91(2), whether to refer the complaint back to the Commission:
deciding, in accordance with sections 91(3) and 92, whether, and to what extent, to provide representation for a complainant, aggrieved person (if not the complainant), or group of persons who requests, or who request, the Director to provide representation in proceedings before the Tribunal or in related proceedings against the person against whom the complaint was made or the Attorney-General, and providing representation for the complainant, aggrieved person, or group of persons, accordingly.
The Director’s functions under this Part include, in relation to a request from the Commission to provide representation in proceedings brought under section 92B, section 92E, or section 97 or in proceedings in which the Commission is entitled to appear and be heard under section 92H, deciding, in accordance with sections 91(3) and 92, whether, and to what extent, to provide representation for the Commission in proceedings before the Tribunal or in related proceedings.
In this section and sections 92 and 92C, related proceedings, in relation to proceedings before the Tribunal, means proceedings of any of the following descriptions:
an appeal to the High Court against a decision of the Tribunal:
proceedings in the High Court arising out of—
the statement of a case under section 122; or
the removal of proceedings or a matter at issue in them under section 122A:
an appeal to the Court of Appeal against a decision of the High Court made in proceedings described in paragraph (a) or paragraph (b):
an appeal to the Supreme Court against—
a decision of the High Court made in proceedings described in paragraph (a) or paragraph (b); or
a decision of the Court of Appeal made in proceedings described in paragraph (c).
91. Requirements for Director’s decisions under section 90
The Director may make a decision under section 90(1)(a) if it appears to him or her that a party has failed to observe the terms of a settlement reached on a previous occasion.
The Director may make a decision under section 90(1)(b) if—
it appears to the Director that the complaint may yet be able to be resolved by the parties and the Commission (for example, by mediation); or
it is unclear to the Director, from information available to him or her, in relation to the complaint, whether a party has failed to observe the terms of a settlement reached on a previous occasion.
The Director may make a decision under section 90(1)(c) or (2) if it appears to him or her that a settlement has not been reached and that no action or further action by the Commission is likely to facilitate a settlement.
92. Matters Director to have regard to in deciding whether to provide representation in proceedings before Tribunal or in related proceedings
In deciding under section 90(1)(a) or (c) or section 90(2) whether, and to what extent, to provide representation for a complainant, aggrieved person, group of persons, party to a settlement of a complaint, or the Commission, the Director—
must have regard to the matters stated in subsection (2):
may have regard to any other matter that the Director considers relevant.
The matters referred to in subsection (1)(a) are—
whether the complaint raises a significant question of law:
whether resolution of the complaint would affect a large number of people (for example, because the proceedings would be brought by or affect a large group of persons):
the level of harm involved in the matters that are the subject of the complaint:
whether the proceedings in question are likely to be successful:
whether the remedies available through proceedings of that kind are likely to suit the particular case:
whether there is likely to be any conflict of interest in the provision by the Director of representation to any person described in subsection (1):
whether the provision of representation is an effective use of resources:
whether or not it would be in the public interest to provide representation.
92A. Director to notify and report on decisions on representation
Promptly after making a decision under section 90(1)(a) or (c), the Director must notify the complainant, aggrieved person, group of persons, or party seeking to enforce a settlement reached on a previous occasion—
of the terms of the decision; and
if the Director has decided not to provide representation for the complainant, aggrieved person, class of persons, or party seeking to enforce a settlement, of the reasons for the decision.
Promptly after making a decision under section 90(2), the Director must notify the Commission—
of the terms of the decision; and
of the reasons for the decision.
If the Director decides to provide representation to the Commission in proceedings in which the Commission is entitled to be heard under section 92H, but subsequently concludes that there is, or may be, a conflict of interest in the provision, or continued provision, of legal representation by the Director to both the complainant and the Commission, the Director must—
cease to provide representation to the Commission; and
promptly advise the Commission of the Director’s decision.
The Director must report to the Minister, at least once each year and without referring to identifiable individuals concerned, on the Director’s decisions under section 90(1)(a) and (c), and, as soon as practicable, the Minister must present a copy of the report to the House of Representatives.
Subpart 1. Proceedings
92B. Civil proceedings arising from complaints
If a complaint referred to in section 76(2)(a) has been made, the complainant, the person aggrieved (if not the complainant), or the Commission may bring civil proceedings before the Human Rights Review Tribunal—
for a breach of Part 1A (other than a breach of Part 1A that is an enactment, or an act or omission authorised or required by an enactment or otherwise by law), against the person or persons alleged to be responsible for the breach:
for a breach of Part 1A that is an enactment, or an act or omission authorised or required by an enactment or otherwise by law, against the Attorney-General, or against a person or body referred to in section 3(b) of the New Zealand Bill of Rights Act 1990 alleged to be responsible for the breach:
for a breach of Part 2, against the person or persons alleged to be responsible for the breach.
If a complaint under section 76(2)(a) relates to a discriminatory practice alleged to be in breach of Part 1A or Part 2 and to affect a class of persons, proceedings under subsection (1) may be brought by the Commission on behalf of the class of persons affected.
A person against whom a complaint referred to in section 76(2)(a) has been made may bring civil proceedings before the Tribunal in relation to the complaint if no proceedings in relation to the complaint have been brought under subsection (1) by, or on behalf of, the complainant or person aggrieved or a class of persons.
If parties to a complaint under section 76(2)(a) have reached a settlement of the complaint (whether through mediation or otherwise) but one of them is failing to observe a term of the settlement, another of them may bring proceedings before the Tribunal to enforce the settlement.
The rights given by subsections (1), (3), and (4) are not limited or affected just because the Commission or a mediator at a dispute resolution meeting or the Director is taking any action in relation to the complaint concerned.
Despite subsection (2), the Commission may bring proceedings under subsection (1) only if—
the complainant or person aggrieved (if not the complainant) has not brought proceedings; and
the Commission has obtained the agreement of that person before bringing the proceedings; and
it considers that bringing the proceedings will facilitate the performance of its functions stated in section 5(2)(a).
Despite subsections (1) to (6), no proceedings may be brought under this section in respect of a complaint or relevant part of a complaint to which section 79(3) applies.
92BA. Lodging of applications
Proceedings before the Tribunal are to be commenced by the lodging of an application in the prescribed form.
92C. Representation in civil proceedings arising from complaints
A party to proceedings before the Tribunal or related proceedings may appear and be heard—
in person, or by a barrister or solicitor provided by the person; or
by a barrister or solicitor provided by the Director if, and to the extent that, the Director has decided, under section 90(1)(a) or (c) or (2), to provide representation for the party in the proceedings.
The Tribunal may, on an application for the purpose by any person, give directions as to the representation, in proceedings before it, of a plaintiff of a kind referred to in section 92N(1) to (3) or of any other party to the proceedings who may be able to bring, take part in, or defend the proceedings, only through a representative.
The Office of Human Rights Proceedings must pay all costs of representation provided—
by the Director for a complainant, aggrieved person, group of persons, or party to a settlement of a complaint; and
in accordance with a decision of the Director under section 90(1)(a) or (c).
The Office of Human Rights Proceedings must pay any award of costs made against a person in proceedings for which representation is provided for that person by the Director.
Any award of costs made in favour of a person in proceedings for which representation is provided for that person by the Director must be paid to the Office of Human Rights Proceedings.
Nothing in this Act limits or affects the entitlement to legal aid (if any) of a party in respect of proceedings or intended proceedings (whether or not representation for the party in the proceedings may, or is to be, is being, or has been, provided in accordance with a decision of the Director under section 90(1)(a) or (c)).
92D. Tribunal may refer complaint back to Commission, or adjourn proceedings to seek resolution by settlement
When proceedings under section 92B are brought, the Tribunal—
must (whether through a member or officer) first consider whether an attempt has been made to resolve the complaint (whether through mediation or otherwise); and
must refer the complaint under section 76(2)(a) to which the proceedings relate back to the Commission unless the Tribunal is satisfied that attempts at resolution, or further attempts at resolution, of the complaint by the parties and the Commission—
will not contribute constructively to resolving the complaint; or
will not, in the circumstances, be in the public interest; or
will undermine the urgent or interim nature of the proceedings.
The Tribunal may, at any time before, during, or after the hearing of proceedings, refer a complaint under section 76(2)(a) back to the Commission if it appears to the Tribunal, from what is known to it about the complaint, that the complaint may yet be able to be resolved by the parties and the Commission (for example, by mediation).
The Tribunal may, instead of exercising the power conferred by subsection (2), adjourn any proceedings relating to a complaint under section 76(2)(a) for a specified period if it appears to the Tribunal, from what is known about the complaint, that the complaint may yet be able to be resolved by the parties.
92E. Civil proceedings arising from inquiry by Commission
If the Commission considers that an inquiry by it under section 5(2)(h) has disclosed or may have disclosed a breach of a kind referred to in any of paragraphs (a) to (c), it may bring civil proceedings before the Tribunal,—
for a breach of Part 1A (other than a breach of Part 1A that is an enactment, or an act or omission authorised or required by an enactment or otherwise by law), against the person or persons alleged to be responsible for the breach:
for a breach of Part 1A that is an enactment, or an act or omission authorised or required by an enactment or otherwise by law, against the Attorney-General, or against a person or body referred to in section 3(b) of the New Zealand Bill of Rights Act 1990 alleged to be responsible for the breach:
for a breach of Part 2, against the person or persons alleged to be responsible for the breach.
The Commission may exercise the right in subsection (1) only if it considers that the exercise of the right will facilitate the performance of its functions stated in section 5(2)(a).
This section does not limit section 6 or section 92H or section 97.
92F. Proof of justified limits and exceptions
The onus of proving, in any proceedings under this Part, that an act or omission is, under section 5 of the New Zealand Bill of Rights Act 1990, a justified limit on the right to freedom from discrimination affirmed by section 19 of the New Zealand Bill of Rights Act 1990 lies on the defendant.
The onus of proving, in any proceedings under this Part, that conduct is, under any provision of Part 2, excepted from conduct that is unlawful under any provision of Part 2 lies on the defendant.
92G. Right of Attorney-General to appear in civil proceedings
The Attorney-General may appear and be heard, in person or by a barrister or solicitor,—
in proceedings before the Human Rights Review Tribunal alleging a breach of Part 1A, or alleging a breach of Part 2 by a person or body referred to in section 3 of the New Zealand Bill of Rights Act 1990:
in proceedings in any of the following courts in relation to proceedings of a kind referred to in paragraph (a) that are or have been before the Human Rights Review Tribunal:
a District Court:
the High Court:
the Court of Appeal:
the Supreme Court.
The right to appear and be heard given by subsection (1) may be exercised whether or not the Attorney-General is or was a party to the proceedings before the Human Rights Review Tribunal.
If, under subsection (1), the Attorney-General appears in any proceedings of a kind described in that subsection, he or she has, unless those proceedings are by way of appeal, the right to adduce evidence and the right to cross-examine witnesses.
92H. Right of Commission to appear in civil proceedings
The Commission may appear and be heard, in person or by a barrister or solicitor,—
in proceedings before the Human Rights Review Tribunal; and
in proceedings in any of the following courts in relation to proceedings that are or have been before the Human Rights Review Tribunal:
a District Court:
the High Court:
the Court of Appeal:
the Supreme Court.
The right to appear and be heard given by subsection (1) may be exercised—
whether or not the Commission is or was a party to the proceedings before the Human Rights Review Tribunal; but
only if the Commission considers that the exercise of the right will facilitate the performance of its functions stated in section 5(2)(a).
If, under subsection (1), the Commission appears in any proceedings of a kind described in that subsection, it has, unless those proceedings are by way of appeal, the right to adduce evidence and the right to cross-examine witnesses.
This section is not limited by section 92B or section 92E or section 97.
Subpart 2. Remedies
92I. Remedies
This section is subject to sections 92J and 92K (which relate to the only remedy that may be granted by the Tribunal if it finds that an enactment is in breach of Part 1A).
In proceedings before the Human Rights Review Tribunal brought under section 92B(1) or (4) or section 92E, the plaintiff may seek any of the remedies described in subsection (3) that the plaintiff thinks fit.
If, in proceedings referred to in subsection (2), the Tribunal is satisfied on the balance of probabilities that the defendant has committed a breach of Part 1A or Part 2 or the terms of a settlement of a complaint, the Tribunal may grant 1 or more of the following remedies:
a declaration that the defendant has committed a breach of Part 1A or Part 2 or the terms of a settlement of a complaint:
an order restraining the defendant from continuing or repeating the breach, or from engaging in, or causing or permitting others to engage in, conduct of the same kind as that constituting the breach, or conduct of any similar kind specified in the order:
damages in accordance with sections 92M to 92O:
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:
a declaration that any contract entered into or performed in contravention of any provision of Part 1A or Part 2 is an illegal contract:
an order that the defendant undertake any specified training or any other programme, or implement any specified policy or programme, in order to assist or enable the defendant to comply with the provisions of this Act:
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:
any other relief the Tribunal thinks fit.
It is no defence to proceedings referred to in subsection (2) or subsection (5) that the breach was unintentional or without negligence on the part of the party against whom the complaint was made, but, subject to section 92P, the Tribunal must take the conduct of the parties into account in deciding what, if any, remedy to grant.
In proceedings before the Human Rights Review Tribunal brought, under section 92B(3), by the person against whom a complaint was made, that person may seek a declaration that he or she has not committed a breach of Part 1A or Part 2.
92J. Remedy for enactments in breach of Part 1A
If, in proceedings before the Human Rights Review Tribunal, the Tribunal finds that an enactment is in breach of Part 1A, the only remedy that the Tribunal may grant is the declaration referred to in subsection (2).
The declaration that may be granted by the Tribunal, if subsection (1) applies, is a declaration that the enactment that is the subject of the finding is inconsistent with the right to freedom from discrimination affirmed by section 19 of the New Zealand Bill of Rights Act 1990.
The Tribunal may not grant a declaration under subsection (2) unless that decision has the support of all or a majority of the members of the Tribunal.
Nothing in this section affects the New Zealand Bill of Rights Act 1990.
92K. Effect of declaration
A declaration under section 92J does not—
affect the validity, application, or enforcement of the enactment in respect of which it is given; or
prevent the continuation of the act, omission, policy, or activity that was the subject of the complaint.
If a declaration is made under section 92J and that declaration is not overturned on appeal or the time for lodging an appeal expires, the Minister for the time being responsible for the administration of the enactment must present to the House of Representatives—
a report bringing the declaration to the attention of the House of Representatives; and
a report containing advice on the Government’s response to the declaration.
The Minister referred to in subsection (2) must carry out the duties imposed on the Minister by that subsection within 120 days of the date of disposal of all appeals against the granting of the declaration or, if no appeal is lodged, the date when the time for lodging an appeal expires.
92L. Costs
In any proceedings under section 92B or section 92E or section 97, the Tribunal may make any award as to costs that it thinks fit, whether or not it grants any other remedy.
Without limiting the matters that the Tribunal may consider in determining whether to make an award of costs under this section, the Tribunal may take into account whether, and to what extent, any party to the proceedings—
has participated in good faith in the process of information gathering by the Commission:
has facilitated or obstructed that information-gathering process:
has acted in a manner that facilitated the resolution of the issues that were the subject of the proceedings.
92M. Damages
In any proceedings under section 92B(1) or (4) or section 92E, the Tribunal may award damages against the defendant for a breach of Part 1A or Part 2 or the terms of a settlement of a complaint in respect of any 1 or more of the following:
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:
loss of any benefit, whether or not of a monetary kind, that the complainant or, as the case may be, the aggrieved person might reasonably have been expected to obtain but for the breach:
humiliation, loss of dignity, and injury to the feelings of the complainant or, as the case may be, the aggrieved person.
This section applies subject to sections 92J, 92N, and 92O and to subpart 1 of Part 2 of the Prisoners’ and Victims’ Claims Act 2005.
92N. Directions as to payment of damages in certain cases
If the plaintiff is a minor who is not married or in a civil union, the Tribunal may, in its discretion, direct the defendant to pay damages awarded under section 92M to Public Trust or to a person or trustee corporation acting as the manager of any property of the plaintiff.
If the plaintiff is a mentally disordered person within the meaning of section 2(1) 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, but who lacks, in the opinion of the Tribunal, the mental capacity to manage his or her own affairs in relation to his or her own property, the Tribunal may, in its discretion, direct the defendant to pay damages awarded under section 92M to Public Trust.
If the plaintiff is a person whose property is being managed under the Protection of Personal and Property Rights Act 1988, the Tribunal must ascertain whether the terms of the property order cover management of money received as damages and,—
if damages fall within the terms of the property order, the Tribunal must direct the defendant to pay damages awarded under section 92M to the person or trustee corporation acting as the property manager; or
if damages do not fall within the terms of the property order, the Tribunal may, in its discretion, direct the defendant to pay damages awarded under section 92M to Public Trust.
If money is paid to Public Trust under any of subsections (1) to (3),—
section 12 of the Minors’ Contracts Act 1969 applies in the case of a minor who is not married or in a civil union; and
sections 108D, 108F, and 108G of the Protection of Personal and Property Rights Act 1988 apply, with any necessary modifications, in the case of a person referred to in subsection (2) or subsection (3)(b); and
section 108E of the Protection of Personal and Property Rights Act 1988 applies, with any necessary modifications, in the case of a person referred to in subsection (3)(a).
92O. Tribunal may defer or modify remedies for breach of Part 1A or Part 2 or terms of settlement
If, in any proceedings under this Part, the Tribunal determines that an act or omission is in breach of Part 1A or Part 2 or the terms of a settlement of a complaint, it may, on the application of any party to the proceedings, take 1 or more of the actions stated in subsection (2).
The actions are,—
instead of, or as well as, awarding damages or granting any other remedy,—
to specify a period during which the defendant must remedy the breach; and
to adjourn the proceedings to a specified date to enable further consideration of the remedies or further remedies (if any) to be granted:
to refuse to grant any remedy that has retrospective effect:
to refuse to grant any remedy in respect of an act or omission that occurred before the bringing of proceedings or the date of the determination of the Tribunal or any other date specified by the Tribunal:
to provide that any remedy granted has effect only prospectively or only from a date specified by the Tribunal:
to provide that the retrospective effect of any remedy is limited in a way specified by the Tribunal.
92P. Matters to be taken into account in exercising powers given by section 92O
In determining whether to take 1 or more of the actions referred to in section 92O, the Tribunal must take account of the following matters:
whether or not the defendant in the proceedings has acted in good faith:
whether or not the interests of any person or body not represented in the proceedings would be adversely affected if 1 or more of the actions referred to in section 92O is, or is not, taken:
whether or not the proceedings involve a significant issue that has not previously been considered by the Tribunal:
the social and financial implications of granting any remedy sought by the plaintiff:
the significance of the loss or harm suffered by any person as a result of the breach of Part 1A or Part 2 or the terms of a settlement of a complaint:
the public interest generally:
any other matter that the Tribunal considers relevant.
If the Tribunal finds that an act or omission is in breach of Part 1A or that an act or omission by a person or body referred to in section 3 of the New Zealand Bill of Rights Act 1990 is in breach of Part 2, in determining whether to take 1 or more of the actions referred to in section 92O, the Tribunal must, in addition to the matters specified in subsection (1), take account of—
the requirements of fair public administration; and
the obligation of the Government to balance competing demands for the expenditure of public money.
Subpart 3. Monetary limits on remedies Tribunal may grant
92Q. Monetary limits on remedies Tribunal may grant
Proceedings under section 92B or section 92E may be brought before the Human Rights Review Tribunal irrespective of the amount of damages claimed or the value of the property in respect of which any remedy is sought.
However, except as provided in sections 92R to 92V, the Tribunal must not award any damages or grant any remedy in any proceedings of that kind if the making of that award or the granting of that remedy would, because of the monetary limits contained in sections 29 to 34 of the District Courts Act 1947, be beyond the jurisdiction of a District Court.
For the purposes of subsection (2), if civil proceedings under section 92B are brought on behalf of more than 1 complainant or, as the case may be, more than 1 aggrieved person, those proceedings must, for the purpose of applying any monetary limit under subsection (2), 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.
Subpart 4. Granting of remedies by High Court on reference from Tribunal
92R. Tribunal to refer granting of remedies to High Court
The Human Rights Review Tribunal must refer the granting of a remedy in any proceedings under section 92B or section 92E to the High Court if the Tribunal is satisfied on the balance of probabilities that a defendant in the proceedings has committed a breach of Part 1A or Part 2 or the terms of a settlement of a complaint, but that—
the granting of the appropriate remedy under section 92I would be outside the limits imposed by section 92Q; or
that the granting of a remedy in those proceedings would be better dealt with by the High Court.
92S. Further provisions on reference to High Court
A reference under section 92R is made by sending, to the Registrar of the High Court nearest to where the proceedings were commenced, a report on the proceedings that—
sets out the Tribunal’s finding with regard to the breach of Part 1A or Part 2 or the terms of a settlement of a complaint; and
includes, or is accompanied by, a statement of the considerations to which the Tribunal has had regard in making the reference to that court.
A copy of the report must be given or sent promptly to every party to the proceedings.
Except as provided in this Act, the procedure for a reference under section 92R is the same as the procedure prescribed by rules of court in respect of appeals, and those rules apply with all necessary modifications.
92T. High Court decides remedies on reference from Tribunal
This section applies where the granting of a remedy in any proceedings under section 92B or section 92E is referred to the High Court under section 92R.
The High Court may direct the Tribunal to amplify any report made under section 92S(1).
Every person who, under section 92S(2), is given or sent a copy of a report under section 92S(1) is entitled to be heard and to tender in the High Court evidence as to the remedy (if any) to be granted on the basis of the Tribunal’s finding that the defendant has committed a breach of Part 1A or Part 2 or the terms of a settlement of a complaint.
However, no person referred to in subsection (3) may, on the reference under section 92R, challenge the finding of the Tribunal referred to in subsection (3).
The High Court must decide, on the basis of the Tribunal’s finding that the defendant has committed a breach of Part 1A or Part 2, whether 1 or more of the remedies set out in section 92I or the remedy set out in section 92J is to be granted.
92U. High Court’s decision on remedies to be included in, and given effect to as part of, Tribunal’s determination
Every decision of the High Court under section 92T(5)—
must be remitted to the Tribunal for inclusion in its determination with regard to the proceedings; and
has effect as part of that determination despite the limits imposed by section 92Q.
Nothing in subsection (1)—
limits sections 123 to 125; or
prevents the making of an appeal in accordance with section 123 in respect of a determination of the Tribunal in which a decision of the High Court is included in accordance with subsection (1)(a).
Subpart 5. Abandonment or agreement to bring claim within Tribunal’s jurisdiction
92V. Abandonment to enable Tribunal to make award of damages
This section applies where the Tribunal would have jurisdiction in any proceedings under section 92B or section 92E to make an award of damages in accordance with section 92M if the amount of the award were within the limit for the time being fixed by section 29(1) of the District Courts Act 1947 (as applied by section 92Q(2)).
The Tribunal may make an award within that limit if the plaintiff abandons the excess.
An award of damages in those proceedings in accordance with section 92M operates to discharge from liability in respect of the amount abandoned in that way any person against whom the proceedings are brought and the subsequent award is made.
This section overrides sections 92Q to 92U.
92W. Extension of jurisdiction by agreement between parties
If, in any proceedings under section 92B or section 92E, only section 92Q prevents the Tribunal from granting any 1 or more of the remedies stated in section 92I, and the parties to the proceedings, by memorandum signed by them or their respective solicitors or agents, agree that the Tribunal is to have jurisdiction to grant any 1 or more of those remedies irrespective of section 92Q, the Tribunal has jurisdiction to grant 1 or more of those remedies accordingly.
This section overrides sections 92Q to 92U.
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