6 October 2005

Churches refusing facilities for Civil Unions

An issue that I've been mulling over is whether churches (or, for that matter, taxi drivers) are entitled under the law to refuse to provide their services/facilities for civil unions. First, it's clear that celebrants are not required to perform civil unions if they don't want to (see s13 of the Civil Union Act 2004):
Licence authorises but does not oblige— A licence authorises, but does not oblige, a civil union celebrant or an exempt body to solemnise the civil union to which the licence relates.
But, secondly, I think the question of refusing services or facilities is not as straight-forward. My quick instinctive analysis (without any significant research) is as follows: 1. The prohibitions in sections 42 and 44 are both engaged. That is, discrimination on the prohibited grounds (sexual orientation, marital status, and family status) is prohibited. 2. Both ss42 and 44 have internal qualifiers which must be engaged: facilities "available to members of the public" or person who supplies facilities "to the public or to any section of the public". In each case, it must be established that, factually, the provider is providing facilities to the public (ie, if, across the board, they do not offer their facilities to anyone then the Human Rights Act protections will not apply). 3. Both ss42 & 44 are subject to various specific exceptions (limited to discrimination based on specific grounds of discrimination). For example, s46 allows discrimination arising from "the maintenance or provision of separate facilities or services for each sex on the ground of public decency or public safety". None of the exceptions seem to relevant. Notably, a couple of the other specific exceptions which could be relevant in relation to other spheres of activity are not replicated for the purposes of ss42 & 44, eg: - the "religious purposes" exception in relation to employment (s28) - the "marital status" exception in relation to employment (s32). 4. A more general justification – such as the usual balancing process that would apply under section 5 of the Bill of Rights – is not available in the first instance. However, the Human Rights Tribunal has the power to declare something lawful if it constitutes a "genuine justification" (but subject to certain, quite reactive, procedural requirements). My quick search only shows one reported case in which this was done: Avis Rent a Car v Proceedings Commissioner (1998) 5 HRNZ 501 (practice of refusing to rent cars to under 21 year olds was genuinely justified by refusal to rent cars to 21-24 year olds was not). The mediation between religious freedom and freedom from discrimination under this provision may allow the discrimination – although, off the top of my head, when considering similar contests (sexual orientation and schools etc), the Canadian courts have generally come down in favour of vindicating the freedom from discrimination/equal treatment. I’ve included the relevant provisions from the Human Rights Act in the comments field.

2 comments:

Dean Knight said...

s21. Prohibited grounds of discrimination—
(1) For the purposes of this Act, the prohibited grounds of discrimination are—
(a) Sex, which includes pregnancy and childbirth:
(b) marital status, which means being—
(i)single; or
(ii) married, in a civil union, or in a de facto relationship; or
(iii) the surviving spouse of a marriage or the surviving partner of a civil union or de facto relationship; or
(iv) separated from a spouse or civil union partner; or
(v) a party to a marriage or civil union that is now dissolved, or to a de facto relationship that is now ended:
(c) Religious belief:
(d) Ethical belief, which means the lack of a religious belief, whether in respect of a particular religion or religions or all religions:
(e) Colour:
(f) Race:
(g) Ethnic or national origins, which includes nationality or citizenship:
(h) Disability, which means—
(i) Physical disability or impairment:
(ii) Physical illness:
(iii) Psychiatric illness:
(iv) Intellectual or psychological disability or impairment:
(v) Any other loss or abnormality of psychological, physiological, or anatomical structure or function:
(vi) Reliance on a guide dog, wheelchair, or other remedial means:
(vii) The presence in the body of organisms capable of causing illness:
(i) Age…
(j) Political opinion, which includes the lack of a particular political opinion or any political opinion:
(k) Employment status, which means—
(i)Being unemployed; or
(ii)Being a recipient of a benefit under the Social Security Act 1964 or an entitlement under [the Injury Prevention, Rehabilitation, and Compensation Act 2001
(l) Family status, which means—
(i)Having the responsibility for part-time care or full-time care of children or other dependants; or
(ii)Having no responsibility for the care of children or other dependants; or
(iii)Being married to, or being in a civil union or de facto relationship with, a particular person; or
(iv)Being a relative of a particular person:
(m) Sexual orientation, which means a heterosexual, homosexual, lesbian, or bisexual orientation.

s28. Exceptions for purposes of religion—
(1) Nothing in section 22 of this Act shall prevent different treatment based on sex where the position is for the purposes of an organised religion and is limited to one sex so as to comply with the doctrines or rules or established customs of the religion.
(2) Nothing in section 22 of this Act shall prevent different treatment based on religious or ethical belief where—
(a) That treatment is accorded under section 65 of the Private Schools Conditional Integration Act 1975; or
(b) The sole or principal duties of the position (not being a position to which section 65 of the Private Schools Conditional Integration Act 1975 applies)—
(i) Are, or are substantially the same as, those of a clergyman, priest, pastor, official, or teacher among adherents of that belief or otherwise involve the propagation of that belief; or
(ii) Are those of a teacher in a private school; or
(iii) Consist of acting as a social worker on behalf of an organisation whose members comprise solely or principally adherents of that belief.
(3) Where a religious or ethical belief requires its adherents to follow a particular practice, an employer must accommodate the practice so long as any adjustment of the employer's activities required to accommodate the practice does not unreasonably disrupt the employer's activities.

s42. Access by the public to places, vehicles, and facilities—
(1) It shall be unlawful for any person—
(a) To refuse to allow any other person access to or use of any place or vehicle which members of the public are entitled or allowed to enter or use; or
(b) To refuse any other person the use of any facilities in that place or vehicle which are available to members of the public; or
(c) To require any other person to leave or cease to use that place or vehicle or those facilities,—
by reason of any of the prohibited grounds of discrimination.
(2) In this section the term ``vehicle'' includes a vessel, an aircraft, or a hovercraft.

s44. Provision of goods and services—
(1) It shall be unlawful for any person who supplies goods, facilities, or services to the public or to any section of the public—
(a) To refuse or fail on demand to provide any other person with those goods, facilities, or services; or
(b) To treat any other person less favourably in connection with the provision of those goods, facilities, or services than would otherwise be the case,—
by reason of any of the prohibited grounds of discrimination.
(2) For the purposes of subsection (1) of this section, but without limiting the meaning of the terms ``goods'', ``facilities'', and ``services'' in that subsection, the term ``facilities'' includes facilities by way of banking or insurance or for grants, loans, credit, or finance.
(3) Where any club, or any branch or affiliate of any club, that grants privileges to members of any other club, branch, or affiliate refuses or fails on demand to provide those privileges to any of those members, or treats any of those members less favourably in connection with the provision of those privileges than would otherwise be the case, by reason of any of the prohibited grounds of discrimination, that club, branch, or affiliate shall be deemed to have committed a breach of this section.
(4) Subject to subsection (3) of this section, nothing in this section shall apply to access to membership of a club or to the provision of services or facilities to members of a club.

s97. Power in respect of exception for genuine occupational qualification or genuine justification—
(1)The Tribunal may exercise the power referred to in subsection (2), but only—
(a) in respect of a matter in which it has jurisdiction under this Act to make a final determination; and
(b) on an application by the Commission, a person or persons against whom a complaint under section 76(2)(a) has been made, or a person who is the subject of an inquiry under section 5(2)(h).
(2) The power is to declare that an act, omission, practice, requirement, or condition that would otherwise be unlawful under Part 2 is not unlawful because it constitutes either or both—
(a) a genuine occupational qualification, in respect of sections 22 to 41:
(b) a genuine justification, in respect of sections 42 to 60.

Gooner said...

Where did you get these examples from? Didn't plagiarise Stephen Franks submission to the select committee per chance?

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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