How to complain about discrimination to the NZ Human Rights Commission

Introduction

If you believe that you've been discriminated against in breach of the New Zealand HUMAN RIGHTS ACT 1993, you can complain to the Human Rights Commission. Discrimination is illegal only if:

• it's on one of the illegal grounds set out in the Act, and
• the discrimination occurred in one of the areas of life that are covered by the Act (for example, employment)

The anti-discrimination laws in the Human Rights Act were amended in 2002:

• Race Relations Office abolished - Complaints about racial discrimination or harassment are now made to the Human Rights Commission, the same as any other complaint about discrimination. They used to be made to the Race Relations Office, which was abolished and merged into the HRC in January 2002. The HRC now has a special Race and Ethnic Relations Unit, and a Race Relations Commissioner.
• Government exemptions ended - The Government used to be allowed to discriminate on some of the illegal grounds of discrimination. This exemption ended on 1 January 2002 (with some exceptions). See below, "Is the Government allowed to discriminate?".
• New dispute resolution procedure - The way in which the Human Rights Commission deals with complaints has been modified. This is intended to provide a more flexible and more effective way of resolving complaints. See below, "How will the Human Rights Commission deal with my complaint?".

How do I make a complaint?

To make a complaint or to make general enquiries, contact the Human Rights Commission on their complaints form page and How to make a complaint page.

You don't have to put your complaint in writing. But the HRC might ask you to do this if your dispute is a complicated or long-term one, or if putting the complaint in writing would help resolve the dispute.

The illegal grounds of discrimination

You cannot be discriminated against on any of the following grounds:

• sex, which includes pregnancy and childbirth
• race, colour, or ethnic or national origins
• disability, which includes physical disabilities and illnesses, and intellectual disabilities and mental illness
• marital status, which applies not just to being or not being married, but also to being or not being in a civil union or de facto relationship
• family status, which includes being, or not being, responsible for the care of children, or being related to or in a relationship with a particular person
• age (unless you're under 16)
• religious or ethical belief, including not having a religious belief
• political opinion, including not having a political opinion
• employment status, which means being unemployed, or being a welfare beneficiary or being on ACC
• sexual orientation

Areas of life protected by the Human Rights Act

The rules against discrimination apply to the following areas:

• the supply of goods and services to the public
• land, housing and accommodation
• employment and business partnerships
• education
• access by the public to places, vehicles and facilities
• industrial and professional associations, qualifying bodies and vocational training bodies

How will the Human Rights Commission deal with my complaint?

When you complain to the Human Rights Commission, your complaint will first go through the HRC's dispute resolution process. If the dispute isn't resolved in this way, your complaint may go to the Human Rights Review Tribunal (see below).

When you first contact the Commission, one of its Information Advisors will try to help you resolve the dispute on your own. If that doesn't work, a Duty Mediator will attempt to resolve the dispute informally and, failing that, by mediation between you and the other person. Mediation can take a variety of forms, including phone calls, an exchange of letters, or a face-to-face meeting. Mediation is private and confidential.

The possible outcomes of mediation include the other person:

• apologising to you
• promising not to discriminate in the future
• doing an education programme
• paying you compensation

If you don't get a satisfactory result through mediation, you have the option of taking your complaint to the Office of Human Rights Proceedings. The OHRP is independent of the Human Rights Commission. The Director of the OHRP will decide whether or not to take your case to the Human Rights Review Tribunal. The Director may also try to resolve your complaint through an agreed settlement between you and other person.

If the Commission decides not to take your accept a dispute for mediation, or the Director of the OHRP decides not to take your complaint to the Review Tribunal, you can take your complaint to the Tribunal yourself, but at your own cost.

What is the Human Rights Review Tribunal, and what can it do?

The role of the Human Rights Review Tribunal is to decide whether the anti-discrimination laws have been breached, and if so, what remedies should be granted. It is independent of the Human Rights Commission. The Tribunal will hold a hearing, but one that is less formal than in a court. You as a complainant are not a party to the proceedings, but you may be called as a witness.

The Review Tribunal can do one or more of the following things:

• make a declaration that the other party breached the HUMAN RIGHTS ACT 1993
• make an order stopping the other party from continuing or repeating the conduct you're complaining about
• award you damages (money) for any financial loss the discrimination may have caused you
• award you damages for the loss of any benefit (monetary or otherwise) that you might have had if you hadn't been discriminated against
• award you damages for humiliation, loss of dignity, and injury to feelings
• order the other party to do particular things to put right any loss or damage that you've suffered
• make a declaration that any contract that was entered into or performed in breach of the Act is an illegal contract

Option to take personal grievance for discrimination in your job

If you believe that you've been discriminated against in your job, you have the option of either

• complaining to the Human Rights Commission, or
• taking a personal grievance to the Employment Relations Authority (see How to bring a personal grievance against your employer.)

This applies not only when you've been discriminated against on one of the illegal grounds explained above, but also when you've been sexually or racially harassed in your job. (See How to bring a sexual harassment claim against your employer.)

Is the Government allowed to discriminate?

No, in most cases the Government is bound by the anti-discrimination laws, the same as any private individual or organisation. If you've been discriminated against by a Government official or agency, you can complain to the Human Rights Commission. The matter can also go before the Human Rights Review Tribunal, like any other complaint.

The Government used to be partly exempted from the anti-discrimination laws, but that exemption has now been removed. Until 1 January 2002 the Government was allowed to discriminate on the grounds of disability, age, political opinion, employment status, family status and sexual orientation. It could not, however, discriminate on the grounds of sex, marital status, religious or ethical belief, race or colour, or ethnic or national origin.

But there are still two exceptions that allow the Government to discriminate in some cases:

• "Justified" discrimination

The Government can discriminate if it shows that the discrimination can be "demonstrably justified in a free and democratic society". But it's up to the Government to prove that the discrimination is justified - you as the complainant don't have to show that it's not justified. This exception doesn't apply to discrimination in employment, nor to inciting racial disharmony or racial or sexual harassment.

• Laws that are discriminatory

The anti-discrimination laws can't overturn a discriminatory Act of Parliament or Government regulations, nor a discriminatory Government action or policy that's authorised or required by an Act or regulations. In those cases you can still complain to the HRC, and your complaint can still go to the Human Rights Review Tribunal. But the Tribunal can't do anymore than simply declare that the particular law, action or policy is discriminatory.

Cautionary notes

• If you believe you have been discriminated against, you may wish to consult a lawyer. The lawyer can advise you of your rights and the best and most effective way of enforcing them.