8. ANTI-DISCRIMINATION AND DIVERSITY MEASURES

8.1. Government organisations

The New Zealand Government is committed to both preventing activities which discriminate against the involvement of particular individuals or groups and to encourage an appreciation of the growing diversity of New Zealand's peoples. Measures that specifically address these issues include:

1. legislation that specifically promotes and protects human rights, including the Human Rights Act of 1993 and the New Zealand Bill of Rights Act 1990;
2. agencies with specific focus on human rights and/or diversity.

The Human Rights Commission has primary responsibility for preventing and responding to cases of discrimination and promoting diversity. A range of Government agencies focus on providing advice and monitoring outcomes for specific population groups including Te Puni Kokiri (on Maori); The Ministry of Pacific Island Affairs; The Ministry of Women's Affairs; the Office of Ethnic Affairs (part of the Department of Internal Affairs), and the Office of Disability Issues (administered by the Ministry of Social Development). The State Services Commission (SSC) is responsible for promoting, developing and monitoring equal employment opportunities/diversity within the Public Service.

In addition, a number of other central and local government agencies and non-government organisations (NGOs) have policies that support or provide information on human rights.

8.1.1. The Human Rights Act 1993

The intention of the Human Rights Act 1993 is to help ensure that all people in New Zealand are treated fairly. This Act sets out the grounds on which discrimination is prohibited in New Zealand (including in employment), and outlines the circumstances in which these grounds are protected as well as the primary functions of the Human Rights Commission. The prohibited grounds of discrimination are set out in section 21 of the Human Rights Act^[47]. They are:

• age (from age 16 years);^[47a]
• colour;
• disability;
• employment status;
• ethical belief (lack of religious belief);
• ethnic or national origins (includes nationality and citizenship);
• family status (having dependents, not having dependents, being married to, or in a civil union or de facto relationship with, a particular person or being a relative of a particular person);
• marital status (single, married, in a civil union or a de facto relationship, separated, a party to a marriage or civil union now dissolved, widowed);
• political opinion (including having no political opinion);
• race;
• religious belief;
• sex (includes childbirth and pregnancy);
• sexual orientation (heterosexual, homosexual, lesbian, bisexual).

Discrimination is unlawful if it occurs on one or more of these grounds. The discrimination may be direct or indirect.^[48] The Act will apply if the ground currently exists, has existed in the past but no longer does or is suspected or presumed to exist by the person discriminating. It will also apply if the discrimination occurs because of a characteristic of a relative or associate of a person.

The Act applies to both the private and public sectors in the following areas: employment (which includes industrial and professional associations, qualifying and vocational bodies and partnerships); educational establishments; access to public places (including vehicles and facilities); the provision of goods and services and accommodation.

In the employment context the Act has a wider application than other types of employment legislation as it protects employees, voluntary workers, applicants for jobs and independent contractors and applies to:

• advertisements;
• job applicants; and
• employment itself.

8.1.2. New Zealand Bill of Rights Act 1990

The Bill of Rights sets out a range of civil and political rights and freedoms which derive from the UN Convention on Civil and Political Rights, including the right to freedom of expression; the right to manifest religious belief (which includes the right not to hold a belief); the right to freedom of movement and the right to be free from discrimination. The Bill of Rights applies to the public sector and anyone carrying out a public function. Complaints about breaches of the rights and freedoms in the Bill can be made to the Courts.

8.1.3. Human Rights Commission

The Human Rights Commission derives its mandate from the Human Rights Act 1993. It is an independent Crown entity funded through Vote: Justice. It reports to the Minister of Justice and tables an annual report in Parliament.

The Commission's primary functions are:

• to advocate and promote respect for, and an understanding and appreciation of, human rights in New Zealand (human rights are defined as the human rights in the international covenants and conventions);
• to encourage the maintenance and development of harmonious relationships between individuals and among the diverse groups in New Zealand society.

In addition the Commission has the function of promoting and providing advice on equal employment opportunities and administers a complaints service to facilitate resolution of disputes about unlawful discrimination (which includes racial and sexual harassment, victimisation, and inciting racial disharmony). For the Commission to accept a complaint for mediation, the complainant must demonstrate that they have been discriminated against on one of the prohibited grounds in an identified area, and that an statutory exception does not apply (for example, that a matter cannot be justified in terms of s.5 of the Bill of Rights or one of the exceptions in Part 2 of the HRA is relevant).

An Amendment to the Act (2001) substantially increased the role of the Commission by extending the applicability of all the grounds to the public sector, creating the role of the Equal Opportunities Commissioner and giving the Commission responsibility for developing a national plan of action for human rights. The Commission worked with the Children's Commissioner and consulted widely with civil society in developing the Action Plan. The Plan focuses on children and young people, disabled people, race relations, civil and political rights, economic, social and cultural rights, and encouraging the use of a human rights approach in the development of policy and legislation.

In the twelve months ending June 2008, the Commission received a total of 3,925 human rights complaints. This is a decrease from the nearly 5,800 human rights complaints or inquiries received in the twelve months to June 2007. Thirty-four percent of complaints in the year to June 2008 contained an element of unlawful discrimination. A new database has been developed to capture and track complaints and enquiries information over time. Currently, baseline data provides analysis by ground(s) of discrimination (for example, disability, race, sex age etc.) as well as area of discrimination (for example, in employment, government activity, advertisements, accommodation).

8.1.4. Office of Ethnic Affairs

The Office of Ethnic Affairs (OEA) was established in 2001 as a stand-alone unit within the Department of Internal Affairs. It works with and for the estimated twelve percent of the New Zealand population who identify with an Asian, African, Middle Eastern, Latin American or Continental European ethnic group.

The main purpose of OEA is to engage with the above ethnic communities and to advise Government on key issues that are of concern to them. Office of Ethnic Affairs' vision is 'strength in ethnic diversity'. The Office of Ethnic Affairs works to ensure that New Zealand's increasing ethnically-diverse population is able to achieve its full potential. Its purpose is 'to contribute to a strong self-directed ethnic sector able to set its own priorities and to promote the advantages of ethnic diversity for New Zealand'.^[49]

Work in which OEA has been involved in 2008 includes:

• Connecting Diverse Communities - a Government initiative co-led by the Ministry of Social and Development and OEA, which aims to strengthen relationships between New Zealand's diverse communities.
• The publication of Portraits II: Cultural Diversity and its accompanying Dialogue Kit - a tool designed to encourage discussion on topics including identity, stereotyping and diversity.
• Expanding the Building Bridges pilot programme, which initially focused on Muslim communities, to identify key issues and challenges facing particular ethnic communities and work with communities to address them.
• Provision of Ethnic Perspectives in Policy training to officials from various government agencies.
• Provision of Intercultural Awareness and Communication training to government agencies and expansion of this service to Primary Health Organisations.

8.1.5. Ministry of Pacific Island Affairs

The Ministry of Pacific Island Affairs promotes the wellbeing and development of Pacific peoples in New Zealand.  The Ministry works to ensure that Pacific peoples can participate in and contribute fully to New Zealand's social, cultural and economic life.  The Ministry does this in a way that recognises and reflects Pacific cultural values and aspirations.  Another role is to ensure that the Minister of Pacific Island Affairs and relevant agencies are well informed about the circumstances and perceptions of Pacific peoples in New Zealand, and the challenges they face.  In turn, the Ministry aims to ensure that Pacific peoples are well informed about, and therefore better able to access, government processes and services of relevance to them.

8.1.6. Ministry of Women's Affairs

The Ministry of Women's Affairs is Government's source of advice on ways to improve the lives of women. The job of the Ministry is to:

• provide advice on policy solutions to improve the status of women;
• recommend suitable women nominees for state sector boards;
• manage New Zealand's international obligations in relation to the status of women, in particular under the United Nations Convention for the Elimination of Discrimination Against Women.

Its work programme is guided by the Action Plan for New Zealand Women, a five-year whole-of-Government plan, launched in 2004.^[50]

8.1.7. Te Puni Kokiri (Ministry of Maori Development)

The broad functions of Te Puni Kokiri, enabled through the Ministry of Maori Development Act 1991, are:

• promoting increases in levels of achievement attained by Maori with respect to education, training and employment, health and economic resource development;
• monitoring and liaising with each of the departments and agencies that provide, or have a responsibility to provide, services to, or for, Maori, for the purposes of ensuring the adequacy of those services.^[51]

8.1.8. Office for Disability Services

The Office for Disability Issues is responsible for ensuring that the Government keeps faith with the New Zealand Disability Strategy, by promoting the participation and inclusion of disabled people in New Zealand. This strategy provides a framework for removing barriers to disabled people's full participation in society. A Disability Perspective Tool kit has been designed to help government policy-makers incorporate a disability perspective in their work. All government departments have annual strategy implementation plans and progress reports.^[52]

8.1.9. State Services Commission

The State Services Commission (SSC) is responsible for promoting, developing and monitoring equality employment opportunities (EEO) in the Public Service. Recently, this work has included the development of a new EEO policy, 'Equality and Diversity: New Zealand Public Service Equal Employment Opportunities Policy'.

The Equality and Diversity Policy was launched in April 2008, and upholds the principles of merit based appointments while recognising the employment aspirations of Maori, women, ethnic and other minority groups, as well as people with disabilities. Equality and diversity is recognised as a key ingredient for organisational success, and the policy supports the integration of equality and diversity across all aspects of strategic planning and performance.

The policy was issued along with guidance on integrating equality and diversity into organisations. Workshops on implementing the policy were well attended by Public Service human resource practitioners, and additional workshops have been scheduled to meet demand.

A methodology for monitoring equality and diversity in the Public Service has been established, and a performance measurement framework is being developed over the coming months. The policy reinforces Chief Executive accountability, and ensures that departmental equality and diversity information also form part of the Public Service Chief Executive performance review process.

8.1.10. Review of culture and identity statistics

Statistics New Zealand are undertaking a review of culture and identity statistics, acting under part 1, sections 7 and 14(i), of the Statistics Act 1975. These provisions allow for the Government Statistician to undertake periodic reviews of official subject-matter statistics in consultation with other agencies, and, to promote statistical standards for use in official statistics.

The main objective of this review is to develop an agreed long term plan for measurement of the culture and identity domain within the framework of the Programme of Official Social Statistics (POSS). The plan looks five to ten years ahead and aims to:

• provide a point for discussion and debate around the concepts and information needs in this area;
• provide a high level understanding of the conceptual terrain around culture and identity issues;
• identify key information needs to inform planning, policy, research and monitoring;
• review current data sources that relate to culture and identity and help to answer research and policy questions;
• assess existing data to see how well it is addressing existing and enduring information needs and to determine gaps; and
• identify priorities for statistical development over, at least, the next five years.

The domain plan sees culture and identity as both individual and collective, and covers:

• cultural group(s) people belong to and/or identify with;
• how important different groups are to people's identities;
• how people express their identities;
• important identities which impact on behaviour, belonging, participation and well-being; and
• the contribution of culture to social and socio-economic outcomes.

Topics included are:

• social cohesion;
• national identity;
• cultural expression and diversity;
• economic contribution of culture (including ethnic businesses);
• participation in cultural activities;
• citizenship;
• Maori/indigenous development;
• sexual orientation;
• religious/faith identity;
• long-term settlement outcomes for migrants.

8.2. Recent changes to legal provision

8.2.1. The Parental Leave and Employment Protection Act 1987

The Parental Leave and Employment Protection Act 1987 provides job-protected leave and parental leave payment for eligible parents.  The Act has a strong focus on gender equity, both in the labour market and within families.  Paid parental leave (PPL) is funded from general taxation, and is intended to provide some income stability for women and their families as they adjust to the birth or adoption of a child.  The employment-protected leave taken under the Act ensures that women have the right to return to the same job under the same terms and conditions they had before they took parental leave.

The Parental Leave and Employment Protection Act 1987 was amended in 2002 to provide 12 weeks PPL to eligible parents.  This was extended to 13 weeks in 2004 and 14 weeks in 2005.  In 2004, the eligibility criteria for PPL were broadened to include parents with six months service or more with the same employer (down from 12 or more months service).  In 2006, access to 14 weeks PPL was extended to eligible self-employed parents.

To be eligible for parental leave and payment, an employee must have worked an average of 10 hours per week for the same employer over six or 12 months (including one hour in every week or 40 hours in every month).  Self-employed persons are required to work in self-employment for an average of 10 hours per week over six or 12 months.  Employees who meet the six-month eligibility criteria are entitled to job-protected leave of 10 days special leave for women during pregnancy, 14 weeks maternity leave and PPL, and one week partners/ paternity leave as appropriate.  Employees who are eligible under the 12-month criteria are also entitled to up to 52 weeks unpaid extended leave, which can be shared between partners, and a further week of partners/paternity leave (two weeks total).  Eligible self-employed parents are entitled to 14 weeks of PPL.  Unpaid leave of up to two weeks is also available to eligible spouse/partners and the extended unpaid leave can be shared between parents where they are both eligible. 

Primary entitlement to the 14 weeks of PPL rests with mothers, who can transfer part or all of the entitlement to their spouse/partner if they are also eligible.  However, in the case of joint adoption, the spouse/partner can be nominated as the primary caregiver and receive the entitlement in their own right.  The payment replaces the individual's income up to a cap of currently $407.36 (before tax) per week.  Administrative data shows that around one percent of mothers transfer any of their PPL to their spouse/partner.

Parents who are ineligible for PPL, may instead be entitled to the Parental Tax Credit, one of the Working for Families Tax Credits administered by Inland Revenue.  This currently provides up to $150 per week for eight weeks, based on the level of family income.  Families may access either PPL or the Parental Tax Credit, but not both.

Over 2005 and 2006, the Department of Labour conducted an extensive evaluation of the parental leave scheme.  The purpose of the evaluation was to better understand the extent to which the Act is meeting its overall objectives.  The evaluation focused on the experiences of three groups: women who have babies or adopt them; fathers or other partners of these women; and employers.

The evaluation found that the parental leave scheme enjoys considerable support from mothers, fathers and employers alike.  Key findings include:

• Approximately 80 percent of working mothers are eligible for PPL (not including self-employed women) and about 80 percent of these women took PPL.  After the inclusion of self-employed parents within the scheme in 2006, it is estimated that approximately 90 percent of working parents are now eligible for PPL.
• Of the small group of employed women who were ineligible for leave, two-thirds were ineligible due to the length of time they had been employed by the same employer, and one-third did not meet the hours criteria.  Casual workers were less likely to be eligible for PPL than permanent workers.
• PPL is typically taken at the end of all other available paid leave, and allows eligible mothers to extend the total amount of leave taken.
• Mothers are not using the full entitlement of leave available.  On average, most mothers return to work when their baby is six months old, but would like to return when their baby is 12 months.  For mothers from all income groups, the biggest barrier to taking the full 12 months of parental leave available is financial pressure.
• Two-thirds of mothers who took PPL and then returned to work, went back to the same employer.
• Most mothers change their working arrangements when returning from leave, and the most common change is a reduction in the hours of work - two-thirds of mothers worked part-time following the birth of a child compared with one-third before the birth.
• Most fathers take some sort of leave around the birth or adoption of a child.  Very few fathers (four percent) use the unpaid paternity leave and tend to take two weeks of annual leave instead.  Their preference would be to take four weeks of paid leave concurrently with the mother.
• Two-thirds of employers agree that PPL allows them to plan and manage workloads with greater confidence.
• Employing someone to cover the position of an employee on parental leave is one of the most difficult aspects for employers to manage; particularly for small-to-medium enterprises who prefer to re-allocate work across existing staff rather than hire temporary staff.
• Employers typically accommodate changes in working patterns for mothers on their return to work on an ongoing basis. However, they tend only to be supportive of changes to fathers' working patterns around the time of the birth or adoption.

8.2.2. Employment Relations (Flexible Working Arrangements) Amendment Act 2007

The Employment Relations (Flexible Working Arrangements) Amendment Act 2007 came into force on 1 July 2008, and provides certain employees with the right to request a variation to their hours of work, days of work, or place of work.  To be eligible for the 'right to request' an employee must have the care of any person and have been employed by their employer for six months prior to making the request. When making the request, the employee must explain how the variation will help the employee provide better care for the person concerned.

The Act requires employers to consider the request for flexible working arrangements and provides the only grounds upon which they can refuse a request. The Act provides a process for how requests are to be made and responded to and also provides a process for resolving disagreements relating to a request for flexible working arrangements which may arise from time to time.

A review of the Act will be completed in 2010 and will consider whether the statutory right to request flexible work should be extended to all employees.

8.2.3. Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2007

The Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2007 (the Act) amends the Employment Relations Act 2000 to require employers to provide appropriate facilities and breaks for employees who wish to breastfeed (including expressing breast milk), as far as is reasonable and practicable.  In determining what is reasonable and practicable, employers will be able to take into account their operational environment and resources.  These requirements come into force on 1 April 2009.  A code of employment practice must be approved by the Minister as soon as practicable after these requirements come into force.  The purpose of the code will be to provide employers with guidance on how to fulfil their obligations concerning the provision of breastfeeding breaks and facilities.  Employers may be liable to a penalty imposed by the Employment Relations Authority if they do not comply with these requirements.  The Authority will also have the power to order employers to comply with their obligations.

8.3. Recent reports and research

8.3.1. Human Rights Commission Omnibus Survey

In 2007 the Human Rights Commission sought information on New Zealanders perceptions' of which groups they feel are discriminated against in New Zealand. The survey also asked about personal discrimination that New Zealanders feel they may have faced themselves over the last year.^[53]

Perceived discrimination

Respondents were given a list of twelve different groups in today's society and asked to rate their perceived discrimination level using a forced 4-point scale.

Sixty eight percent of respondents felt Asians were discriminated 'a great deal' or 'some', followed by discrimination against recent migrants (62 percent). Fifty six percent of respondents felt there was discrimination against refugees.

Perceived discrimination amongst these groups was generally lower than in 2006. Of these twelve groups, nine of them had lower discrimination levels from 2006 and eight had their lowest levels recorded since tracking began in December 2000. The biggest falls were: eight percent for recent immigrants, seven percent for refugees and four percent for Asians. Discrimination levels for overweight people and older people increased three percent and two percent respectively. Table 22 shows the reported level of discrimination from 2000 - 2007.

Table 22: Proportion (percentage) of survey respondents who perceived selected groups as being subject to a great deal or some discrimination, December 2000-November 2007^[54]

Group	Dec 2000	Dec 2001	Jan 2003	Jan 2004	Feb 2006	Nov 2007
Asians	73	73	79	78	72	68
Recent immigrants	-	68	77	72	70	62
People on welfare	75	70	68	66	63	62
People who are overweight	72	65	65	68	59	62
Refugees	-	68	72	70	63	56
Gays and lesbians	74	65	61	58	57	54
People with disabilities	61	55	53	55	53	52
Pacific peoples	71	65	65	57	54	51
Maori	70	62	57	53	51	48
Older people	53	48	49	46	44	46
Women	50	44	41	38	38	39
Men	-	-	-	-	30	29

Source: Human Rights Commission (2008)

Personal Discrimination

One in five respondents (21 percent) said they have been personally discriminated against in the last twelve months. Reasons for discrimination included:

• Race, ethnicity, colour or national origin;
• Age;
• Sex or gender (includes pregnancy, childbirth and transgender);
• Having a disability;
• Religion, ethical belief or lack of religious belief;
• Political opinion;
• Sexual orientation;
• Marital status;
• Other.

8.3.2. Migrants and employment

Business representatives and migrant communities indicated at an employment symposium (Auckland, 2007) that there was a need to promote positive stories about migrant employment. These stories could persuade other potential employers of the benefits of migrant employees to fill labour and skills shortages and that diverse workforces are valuable in themselves. The resulting publication "Brain Gain: Migrant workers in New Zealand" was published in June 2008. In addition to the stories about migrant workers their employers and agencies supporting migrant employment, advice was provided for both employers and migrant job-seekers about accessing employment, including the pre-employment area and its relation to the Human Rights Act 1993. A list of migrant employment resources was also included for reference.

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Footnotes

^[47a] Prohibited grounds of discrimination

^[47] Although children and young people (those aged 15 and under) are protected from discrimination on other grounds such as disability, they are not protected from discrimination on the grounds of age. (see Human Rights Commission: Fact Sheet #03)

^[48] Direct discrimination occurs when a person is treated differently because of one of the grounds of unlawful discrimination and is disadvantaged as a result. Indirect discrimination is said to occur when an apparently neutral policy or practice has a negative impact on one of the groups against whom it is unlawful to discriminate.

^[49] Department of Internal Affairs (2005) Briefing for Incoming Minister, Ethnic Affairs, October 2005.

^[50] Source and for more information, please see Ministry of Women' Affairs website www.mwa.govt.nz

^[51] Source and for more information, please see Te Puni Kokiri website www.tpk.govt.nz

^[52] Source and for more information, please see Office of Disability Issues website www.odi.govt.nz

^[53] Human Rights Commission (2008) Perceived discrimination in New Zealand, Omnibus Results November-December 2007, Report prepared for the Human Rights Commission by URM Research Ltd.

^[54] http://www.socialreport.msd.govt.nz/

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