LAWS 206 - 'what constitutes as discrimination'.

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What constitutes as discrimination under s19 of NZBORA? Why?

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In the case of Atkinson, the court held that in order for a statute to be discriminatory, it must lead to persons or groups, being treated differently as opposed to a comparative group in essentially the same circumstances, based on their age, gender, race, etc.

Such a statute must also result in a substantial disadvantage for the marginalized group or person, if it's to constitute as discrimination under s19 of NZBORA.

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What is the 'comparitive group' that the courts judge the marganilized person against?

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In the case of McAlister, the court held that the 'compariive group' is someone in the exact same circumstances as the plaintiff minus the grounds of discrimination.

For example, in the case of Atkinson, the 'comparative group' was someone providing support services to disabled children (like Atkinson), minus the prohibited grounds of discrimination (family status).

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What constitutes as a 'material disadvantage'?

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Any substantial hindrance on a persons ability to access tangible things, such as money, or non-tangible things such as employment opportunities, can constitute as a material disadvantage for that person.

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What is the distinction between direct discrimination and indirect discrimination?

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In the case of Quilter, Tipping J stated that direct discrimination is where the purpose of the Act, explicitly intends to treat people differently on the basis of their gender, race etc.

However, indirect discrimination is where the purpose of the Act does not intend to discriminate, however, the resulting effect of such a provision is discrimination.

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What may be a lawful grounds of discrimination? Why?

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Under s 73 of the HRA, discrimination may be lawful if it is conducted in good faith, for the purposes of assisting some historically oppressed group of people so that they can receive equal treatment in society.