Duty to act independently Notwithstanding anything in section 32 of this Act, but subject to sections 51 and 52 of this Act, in matters relating to decisions on individual employees (whether matters relating to the appointment, promotion, demotion, transfer, disciplining, or the cessation of the employment of any employee, or other matters), the chief executive of a Department shall not be responsible to the appropriate Minister but shall act independently.In my view, though, the more interesting question is whether a refusal to employ or termination of employment would be unlawful, assuming that decision was properly made by the CEO. Obviously, such action would prima facie amount to discrimination based on "family status", that is, "being married to, or being in a civil union or de facto relationship with, a particular person" (s23(1)(l)(iii), Human Rights Act 1993). That potentially makes the action unlawful under s22 of the Human Rights Act and/or s19 of the New Zealand Bill of Rights Act 1990. However, as one of my colleagues pointed out to me, section 32 of the Human Rights Act expressly allows discrimination against people in relationships if there is a risk of collusion:
The concerns underlying this exception would no doubt also provide the foundation for an argument that any discrimination is justified under the Bill of Rights (either within the definition of discrimination itself or for the purposes of section 5). This would be augmented by the requirement of political neutrality under the New Zealand Public Service Code of Conduct. Of course, it must be established - factually - that the relationship creates a risk of collusion to the detriment of the employer. But that seems readily open in this situation. On its face, therefore, the action taken by MfE appears to be defendable.
Exception in relation to family status Nothing in section 22 of this Act shall prevent restrictions imposed by an employer— (a) On the employment of any person who is married to, or in a civil union or in a de facto relationship with, or who is a relative of, another employee if— (i) There would be a reporting relationship between them; or (ii) There is a risk of collusion between them to the detriment of the employer; or (b) On the employment of any person who is married to, or in a civil union or in a de facto relationship with, or who is a relative of, an employee of another employer if there is a risk of collusion between them to the detriment of that person's employer.