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3.Trade Union Involvement
3.1 During the course of earlier reviews of human rights statutes
in New Zealand, and particularly in the context of the extension
of grounds on which discrimination is unlawful, the question
of including "trade union involvement" has been mooted. For
example, it was canvassed in the proposed expansion of the grounds
in the lapsed 1990 Human Rights Commission Amendment Bill and
in the discussion leading up to the Human Rights Bill 1992,
which led to the Human Rights Act 1993. For various political
and/or ideological reasons these discussions did not bear fruit.
3.2 The grounds listed in the Human Rights Act 1993 (s 21)
do include "political opinion" and the Foundation is aware that
this ground can and has been argued to encompass "trade union
involvement". However, the Foundation is of the view that this
approach is unnecessarily complex (and has not been supported
by the Courts in New Zealand) and recommends that "trade union
involvement" be included as a separate ground.
3.3 The Foundation would therefore like to raise this issue
again for consideration in the Human Rights Amendment Bill.
Just as the Employment Relations Act 2000 has brought its grounds
into line with those in the Human Rights Act 1993 (s 21) for
the purposes of ss 103 and 104 of that Act (see s 103 - 5),
so an amendment to the Human Rights Act 1993 to include the
ground of discrimination outlined in ss 9 and 107 of the Employment
Relations Act would seem desirable. Section 9 of the Employment
Relations Act 2000 reads as follows:
" 9 Prohibition on preference
- A contract, agreement, or other arrangement between persons
must not confer on a person, because the person is or is not
a member of a union or a particular union, -
- any preference in obtaining or retaining employment; or
- any preference in relation to terms or conditions of employment
(including conditions relating to redundancy) or fringe benefits
or opportunities for training, promotion, or transfer.
- Subsection (1) is not breached simply because an employee's
employment agreement or terms and conditions of employment are
different from those of another employee employed by the same
employer."
Section 107 of the Employment Relations Act reads:
107 Definition of involvement in activities of union for
purposes of section 104
For the purposes of section 104, involvement in the activities
of a union means that, within 12 months before the action complained
of, the employee-
- was an officer of a union or part of a union, or was a member
of the committee of management of a union or part of a union,
or was otherwise an official or representative of a union or
part of a union; or
- had acted as a negotiator or representative of employees in
collective bargaining; or
- was involved in the formation or the proposed formation of
a union;
- had made or caused to be made a claim for some benefit of
an employment agreement either for that employee or any other
employee, or had supported any such claim, whether by giving
evidence or otherwise; or
- had submitted another personal grievance to that employee's
employer; or
- had been allocated, had applied to take, or had taken any
employment relations education leave under this Act; or
- was a delegate of other employees in dealing with the employer
on matters relating to the employment of those employees."
- The Foundation therefore recommends the addition of "trade
union involvement", with a definition drawn from ss 9 and 107
of the Employment Relations Act 2000, to the grounds specified
in s 21(1). It may be that some exceptions in relation to this
ground need to be considered
4. Hate-speech: addition to s 61
- Section 61(1) of the Human Rights Act makes it 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 word 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 any be coming to New
Zealand on the ground of the colour, race or national or ethnic
origins of that group of persons.
- It is to be noted that this section encompasses only colour,
race or ethnic or national origin". International standards
and some other jurisdictions include "religion" along with "race"
as a basis for hate speech legislation. There is a great deal
of academic writing and analysis on these issues, and especially
on the tension between such "hate-speech" regulation and censorship
and freedom of expression.
- This issue has been highlighted in New Zealand in the recent
decision of the Film and Literature Board of Review in Decision
No 3 (31.5.2001), the Living Word Distributors case,
which concerned two video recordings relating to gay rights.
This decision was delivered following a rehearing of the case
by the Board that had been directed by the Court of Appeal.
In this case the Board drew attention to what it considered
to be a gap in the law in New Zealand. At para 51 it said:
"The Board wishes to highlight what it considers to be a
gap in our law in this regard. As pointed out by counsel for
Living Word Distributors Limited, international standards and
some other jurisdictions include "religion" along with "race"
as a basis for hate speech legislation. It may be that New Zealand
society has reached the stage where the provisions of section
61 of the Human Rights Act 1993 should be extended to include
other grounds or discrimination, in addition to race, regarding
hate speech. However, that is for another forum to determine,
not the Board."
- The Foundation accordingly recommends
that consideration b on of, for
- are given to amending s 61 of the Human
Rights Act to address the "gap" so identified, by the inclusir
example, "religion", "sexual orientation" and "disability".
The Foundation would be happy to provide further material (references,
websites etc) on this issue if desired.
5. A "Treaty Commissioner".
- A third issue was raised by the Foundation in response to
a question by a member of the Select Committee. The Foundation
in its original submission (para 6.2) had recommended "as a
minimum" that the provisions relating to the Treaty recommended
by the Review document should be included.
- In answer to the question as what else might be done to advance
the Treaty in this context, the Foundation recommends the appointment
of a full-time Treaty of Waitangi Commissioner, on the analogy
of the Aboriginal and Social Justice Commissioner of the Australian
Human Rights and Equal Opportunities Commission. (A similar
proposal was advanced by the Human Rights Commission in discussions
on the 1992 Human Rights Bill).
- Such a Commissioner would have a sphere of activity that overlaps
but has a different focus from that of the Race Relations Commissioner.
Such an appointment would emphasise the broader focus of the
Treaty and its jurisprudence, whereas the Race Relations Commissioner
could be more focussed on race discrimination issues as was
originally intended (in the Convention on the Elimination of
All Forms of Racial Discrimination and the (UK) Race Relations
Act which served as a model for the New Zealand Race Relations
Conciliator's Office).
- Other Treaty bodies in New Zealand have different though complementary
roles to that of such a Commissioner: the Office of Treaty Settlements
and the Waitangi Tribunal for example.
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