|
|
Home
| Databases
| WorldLII
| Search
| Feedback
New Zealand Equal Opportunity Tribunal |
Last Updated: 11 December 2014
004
No. 4/1980
BEFORE THE EQUAL OPPORTUNITIES TRIBUNAL
BETWEEN HUMAN RIGHTS COMMISSION
established as a body corporate under Part I of the Human Rights Commission Act 1977 and having its office at Chase-NBA House, 163-165 The Terrace, Wellington
Plaintiff
AND ERIC SIDES MOTORS COMPANY
LIMITED a
duly incorporated company having its registered
office at Durham
Street,
Christchurch, and carrying on business as a motor dealer and
motor repairer
Defendant
Hearing: September 18th, 1980
at Wellington
Counsel: P.D. Green for Applicant
(Defendant)
G.P. Barton and J. Hodder for Respondent
(Plaintiff)
DECISION OF TRIBUNAL ON APPLICATION FOR ORDER FOR DISCOVERY
In proceedings dated the 9th May
1980 the Human Rights Commission (the Plaintiff) sought various remedies against
Eric Sides Motors
Company Limited (the Defendant) in terms of the Human Rights
Commission Act 1977. Subsequent to the issue of the proceedings the
Defendant
made application for the issue of an Order for Discovery against the Plaintiff
and presented to the Tribunal for sealing
an Order which followed the form
authorised by the District Court Rules 1948, i.e. an Order that the Plaintiff
within seven days
from service of the Order answer on affidavit stating what
documents are or have been in the p1aintiff’s possession or power
relating
to the matters in question in the proceedings. When we hereafter refer to an
Order for Discovery we are referring to an
Order in the above
form.
The Plaintiff was advised of the Defendant’s
request for the issue of an Order for Discovery and informed the Tribunal that
the issue of the Order was opposed.
PAGE TWO MISSING...
litigation,
and submitted that proceedings under Section 38 of the Act are of a civil
nature. He also contended that, although the
proceedings are civil in nature
they are a “hybrid form”, and that “various statutory
enactments must be examined
to determine the procedure and the jurisdiction of
the Tribunal”. The main thrust of the submission which he then developed
was that the Tribunal, by virtue of the provisions of Section 53 of the Act, is
deemed to be a Commission of Enquiry, and that the
provisions of Section 4 of
the Commissions of Enquiry Act 1908 (as amended in 1980) give the Tribunal power
to issue an Order for
Discovery. In support of the above submissions Mr. Green
referred to the decision in Re St. Helens Hospital (1913) 32 N.Z.L.R.
682.
In response to this part of the Defendant’s
argument Mr. Barton submitted that a right to discovery must be founded upon
some
statutory authority. He pointed out that Section 122 of the District Courts
Act 1947 provides the authority under which Rule 155
of the District Court Rules
1948 authorises an Order for Discovery. Similarly, Section 51 of the Judicature
Act 1980 gives legislative
authority for Rules 161 and 161A of the Code of Civil
Procedure empowering the High Court to order
discovery.
Although it is possible (at least in the case of
ordinary courts) that there are inherent powers in relation to discovery, we are
of the opinion that in the case of a tribunal such as the Equal Opportunities
Tribunal the existence of a power to issue an Order
for Discovery must primarily
be governed by the statutory provisions relating to the Tribunal, which are
likely either expressly
or by implication to indicate whether or not such a
power exists. In these circumstances it does not appear to us to be of
importance
whether the proceedings are civil in nature or hybrid. Indeed in
criminal proceedings the power to order some forms of discovery
is well
recognised.
We have not been referred to any authorities which in our view support a
common law power to issue an Order for Discovery or any inherent
power to do so.
As we see the matter, the Tribunal is created by statute, the terms of which are
of primary importance in determining
whether there is power to issue an Order
for Discovery.
We accordingly examine the possible sources
of such authority, i.e. (a) the Act and the Equal Opportunities Regulations 1980
(“the
Regulations”) made pursuant to the Act, and (b) the
Commissions of Inquiry Act 1908.
(a) The
Act
The Act deals with a number of points which are wholly or substantially
procedural and also contains the general provision in Section
50(5)
that:
Subject to the provisions of this Act and of any regulations made under
this Act, the Tribunal may regulate its procedure in such
manner as it thinks
fit.
We do not consider that a power to regulate procedure is sufficiently wide to authorise the Tribunal to issue an Order for Discovery. As Mr. Barton pointed out, the Act appears to make a deliberate distinction between “regulating” procedure, which the Tribunal may do under Section 50(5), and “prescribing” procedure, which is reserved for the Executive under Section 85(a). We accept Mr. Barton’s submission that to order discovery relying upon Section 50(5) would necessarily involve the Tribunal in creating a procedure rather than in controlling the sequence or content of procedures which are specified or necessarily implied in the Act. We do not find in Section 50(5) or elsewhere in the Act any power to issue an Order for Discovery (we later deal with the power to order production in terms of Section 53 of the Act and the Commissions of Inquiry Act 1908).
The Regulations
Regulation 5, under the head “conduct of proceedings”
provides:
Subject to the Act and to these regulations, the Chairman may, subject to
any decision of the Tribunal, give all such directions and
do all such things as
are necessary or expedient for the expeditious and just hearing and
determination of any proceedings under
Section 38 of the Act.
Although Mr. Green did not seek to rely on Regulation 5, we have
considered the scope of the Regulation. We are of the opinion that
the
Regulation does not permit the Tribunal to issue an Order for Discovery. The
Regulation appears to be designed to enable the
Chairman, subject to any
decision of the Tribunal, to deal with the many procedural and pleading issues
which may arise during the
course of proceedings. Regulation 5 might be regarded
as giving the Tribunal power to direct the production of specific material
or
documents which are necessary for the expeditious and just hearing and
determination of the proceedings (this power is in any
event now given by
Section 4 of the 1980 amendment to the Commissions of Inquiry Act 1908). This,
however, is a more limited power
than an Order for Discovery and is, we
consider, the furthest extent to which Regulation 5 might be taken in relation
to production
of documents.
Regulation 6 gives the Tribunal or the Chairman power to require information from the Plaintiff or the Defendant where the information is reasonably required regarding the proceedings. For reasons similar to those relating to Regulation 5 we do not consider Regulation 6 gives the Tribunal power to issue an Order for Discovery. We take the view that Regulation 6 has a more limited purpose, and that both Regulation 5 and 6 are intended to give the Tribunal power to ensure that the proceedings are conducted fairly, so that the Tribunal and each party has adequate information in relation to the nature of the proceedings and the disputed issues. These are powers which a Tribunal would be expected to have to enable justice to be done
between the parties (to which aspect we return when dealing with the
Defendant’s submission concerning natural
justice).
(b) The Commissions of Inquiry Act
1908
Section 53 of the Act provides that the Tribunal is deemed to be a
Commission of Inquiry under the Commissions of Inquiry Act 1908
(with certain
exceptions). In so far as the possibility of issuing an Order for Discovery is
concerned, the only relevant Sections
of the Commissions of Inquiry Act are 4
and 4(c).
Section 4 (as amended in 1980) reads:
“For the purposes of the inquiry, every such
Commission shall have the powers of a District Court, in the exercise of
its civil jurisdiction, in respect of citing parties and
conducting and
maintaining order at the inquiry.”
It seems clear that the Tribunal possesses only those powers of a
District Court which relate to (i) citing parties, (ii) conducting the enquiry,
and (iii) maintaining order at
the enquiry. This appears to be the way in which
Roper J. read the Section in Jarman v. Commissioner of Inland
Revenue (Christchurch Registry M.No.23/80 and (1980) Taxation Reports
(N.Z.) 677), and the reasoning of the learned judge in that case is
not affected
by the 1980 amendment. Mr. Green suggested to us that the Jarman
case could be distinguished because it was dealing with taxation legislation. We
appreciate that there may be differences between
proceedings before the Taxation
Board of Review and proceedings before the Equal Opportunities Tribunal, but
those considerations
cannot affect the interpretation of the Commissions of
Inquiry Act. That Act must be interpreted according to its terms and in
accordance
with the normal principles of statutory
construction.
Section 4(c) of the Commissions of Inquiry Act 1980 reads in
part:
“(1) For the purposes of the inquiry the Commission or any person
authorised by it in writing to do so may:
(a) Inspect and examine any papers, documents, records, or
things.
(b) Require any person to produce for examination any papers, documents, records, or things in that person’s possession or under that person’s control, and to allow copies of or
extracts from any such papers, documents, or records to be
made.
(c) Require any person to furnish, in a form approved by or acceptable to the Commission, any information or particulars that may be required by it, and any copies of or extracts
from any such papers, documents, or records as aforesaid.
(3) For the purposes of the inquiry the Commission may of its own motion,
or on application, order that any information or particulars,
or a copy of the
whole or any part of any paper, document, or record, furnished or produced to it
be supplied to any person appearing
before the
Commission....”.
In our view this Section does not authorise the Tribunal to issue an
Order for Discovery. Indeed the clear inference from the Section
is that there
is no power to issue an Order for Discovery. The Section does provide power for
the Tribunal to inspect and examine
papers, documents, records, or things, and
likewise to order that the whole or part of any paper, document or record
produced to
the Tribunal should be supplied to any person appearing before the
Tribunal. The power given by the Section may be of considerable
value in
ensuring the fair and proper conduct of proceedings, and it is a power which the
Tribunal will consider using in appropriate
circumstances.
Mr. Green suggested that the decision in Re St. Helens
Hospital (1913) 32 N.Z.L.R. 682 at least by implication assisted the
contention that the Commissions of Inquiry Act 1908 (prior to the recent
amendment) authorized
the issue of an Order for Discovery. We have considered
the decision carefully, and do not think that it should be so read. The judge
was not directing his attention to the issue of an Order for Discovery, but to
privilege, and in the circumstances we do not consider
that it should be
inferred that he by implication considered an Order for Discovery could be
made.
We are of the view that there is no statutory
authority which permits us to issue an Order for Discovery, whether expressly or
by
implication. Nor in our opinion is there a power at common law or an inherent
power to issue such an Order, apart from the question
of natural justice to
which we now turn.
2. Whether the Tribunal has power
to issue an Order for Discovery as a matter of natural
justice.
In support of this submission Mr. Green
contended that,
since the Tribunal functions as a judicial body, it
would amount to a breach of natural justice if an application for an Order for
Discovery is declined. In support of this submission Mr. Green referred to the
principles of natural justice, and to the decision
in Kanda v. Government
of Malaya [1962] UKPC 2; [1962] A.C. 322 where at page 337 Lord Denning
said
“If the right to be heard is to be a real right which is worth
anything, it must carry with it a right in the accused man to
know the case
which is made against him. He must know what evidence has been given and what
statements have been made affecting him;
and then he must be given a fair
opportunity to correct or contradict them.”
The
statements made by Lord Denning concerned an enquiry about a police officer and
circumstances which were very different from those
which arise in proceedings
before the Equal Opportunities Tribunal. We have no doubt that a person who is
accused of an impropriety
should be entitled to know the case against him and
what has been said about him, and be given a fair opportunity to correct or
contradict
such matters. The Kanda decision does not, however,
have any direct relevance to proceedings before the Equal Opportunities
Tribunal, because the Tribunal
normally (and this is the case at the present
stage of these proceedings) has no more or other information than that provided
by
the
parties at the hearing. On any occasion when the Tribunal
receives documents or evidence of which a party is unaware most careful
consideration will be required to ensure that the rules of natural justice are
complied with. We are of the view that there should
be no question of the
Tribunal proceeding on information unknown to the Defendant (or for that matter
the Plaintiff) or which the
Defendant is not
given a fair
opportunity to correct. Consideration of natural justice and cases such as the
Kanda decision do not, however, in our view enable the Tribunal to
issue an Order for Discovery.
We entirely accept that the
Tribunal should conduct the
proceedings fairly in accordance with
the Act and Regulations, and should use the powers given to it to ensure that is
done. Without
attempting to set out an exhaustive list of matters which we
consider important, we refer to the need for the issues to be defined
with such
particularity that there is no prejudice, the need to know the case which has to
be met, and the need for a fair opportunity
to meet that case. It was
interesting to us that the Defendant, whilst pressing for discovery, was not
prepared to concede any right
to the Plaintiff to have the issues clarified and
defined.
We have not heard argument concerning the
rights of the Plaintiff as distinct from the Defendant, but we would be
surprised if most
Defendants did not resist being compelled to answer an Order
for Discovery on affidavit. Indeed, we can see a number of practical
problems
arising from attempts to obtain such discovery, e.g. the extent of both
Plaintiff’s and Defendant’s privilege.
Our present opinion is that
even if there were a statutory or common law (or inherent) right to discovery,
the Tribunal would, if
it had a discretion in the matter, be reluctant to issue
an Order for Discovery other than in unusual cases.
Mr.
Green suggested to us that a Defendant who was unable to obtain discovery could
be taken by surprise by the emergence of unexpected
evidence or documentary
material. He laid stress on the need for a party to know all the documentary
information in the other side’s
possession, in case relevant material was
withheld or suppressed. We accept that this is a possibility, but we think that
in the
vast majority of cases the Tribunal has adequate powers to ensure that
each side is fully and fairly informed of the case and the
relevant documentary
material. We have already referred to the powers contained in Regulations 5 and
6 and in Section 4(c) of the
Commissions of Inquiry Act, and have indicated that
the Tribunal will in appropriate cases consider the use of those powers. In the
nature of cases brought under Section 38 much of the knowledge will be in the
hands of the Defendant, and it is not easy to envisage
cases where a general
right of discovery would in fact assist a Defendant. Appreciating this
difficulty for his argument, Mr. Green
attempted to list (not on an exhaustive
basis) some of the matters which he suggested the Defendant ought to know about.
He mentioned
(a) Information as to who made the original “complaint” (to
the Commission);
(b) The precise point of time when the “complaint” was made;
(c) What factors induced the “complaint”,
and
(d) The precise form of the original
“complaint”.
Some of this information is already
contained in the detailed report prepared by the Plaintiff (and made available
to the Defendant)
and it is important to keep in mind that the Act imposes on
the Plaintiff requirements in relation to informing the Defendant (Mr.
Barton
made reference, for example, to Sections 36, 37 and 72). Mr. Barton also
submitted that the information sought by Mr. Green
was not relevant to the
proceedings, and Mr. Green declined at this stage to specify his reasons for
considering the information
relevant. Since we have not heard Mr. Green’s
reasons or argument concerning relevance and the need for access to the
documents
to which he referred, we do not consider we should express any view
concerning those questions. We, however, record that we entirely
accept the need
for full and fair information and that in some cases access to documents may be
most important. If Mr. Green wishes
to pursue the matter, the Tribunal is
prepared to consider an application by the Defendant for the exercise of the
powers contained
in Regulations 5, 6 and 7. The Tribunal is also prepared to
consider invoking the provisions of Section 4C of the Commissions of
Inquiry
Act. It would appear that neither of the above procedures would necessarily be
resisted by the Plaintiff (Mr. Barton indicated
to the Tribunal that the
Plaintiff had invited a request from the Defendant in relation to any specific
documents or category of
documents). The Tribunal would much prefer any issues
concerning documents to be clarified prior to the hearing, and will endeavour
to
assist in that regard. We also draw attention to the right of either party to
seek an adjournment in the case of surprise, but
we indicate that we would much
prefer to see the cost and delay of an adjournment
avoided.
For all the reasons which we have given, the
Defendant’s application for an Order for Discovery is accordingly
declined.
Costs
Mr. Barton informed the Tribunal that, if
the Defendant’s application failed, the Plaintiff did not seek costs. In
view of that
intimation the Tribunal does not make an order for costs against
the Defendant.
Other interlocutory issues
As part of his submissions Mr. Barton raised
several other interlocutory issues. The Tribunal had hoped to be able to deal
with these,
but was unable to do so because some of the issues impinged on
issues which arise in relation to the proceedings issued against The
Press and
the Christchurch Star, which companies were not represented at the hearing.
Accordingly the Tribunal has issued a separate
memorandum concerning the other,
interlocutory issues, and invites the parties to respond to the memorandum
promptly.
DATED this 13th day
of November 1980
J.H.
Wallace
Chairman
L.A.
Cameron
Member
V.N.
Boyd
Member
BEFORE THE EQUAL OPPORTUNITIES TRIBUNAL
BETWEEN HUMAN RIGHTS COMMISSION
Established as a body corporate under Part I of the Human Rights Commission Act 1977 and having its office at Chase–NBA House,
163-165 The Terrace,
WELLINGTON
Plaintiff
AND ERIC SIDES MOTORS COMPANY LIMITED a duly incorporated company having its registered office at Durham Steer, Christchurch, and carrying on business as a motor dealer and motor repairer
Defendant
No. 4/1980
BETWEEN HUMAN RIGHTS COMMISSION
Established as a body corporate under Part I of the Human Rights Commission Act 1977 and having its office at Chase–NBA House,
163-165 The Terrace,
WELLINGTON
Plaintiff
AND NEW ZEALAND NEWSPAPERS LIMITED as the publisher of THE CHRISTCHURCH STAR, a registered newspaper publishing and carrying on business at 136 Gloucester Street, Christchurch
Defendant
No. 4/1980
BETWEEN HUMAN RIGHTS COMMISSION
Established as a body corporate under Part I of the Human Rights Commission Act 1977 and having its office at Chase–NBA House,
163-165 The Terrace,
WELLINGTON
Plaintiff
AND THE CHRISTCHURCH PRESS COMPANY LIMITED as publisher of THE PRESS, a registered newspaper publication at 186 Gloucester Street
CHRISTCHURCH
Defendant
Hearing: December 15, 16, 17, 18, and 19 at Christchurch
Counsel: G.P. Barton and J.E. Hodder for Plaintiff
P.D. Green and D.G. Dewar for Eric Sides Motors Company Limited
J.D. Dalgety for New Zealand Newspapers Limited and The Christchurch Press Company Limited
DECISION OF TRIBUNAL
1. Introductory
The three proceedings issued in this matter all concern the right of an employer to give preference in employment to Christians or to indicate in advertisements a preference for or an intention to employ only Christians.
There are those to whom the questions which the proceedings raise seem trivial. There are also those to whom the answers seem obvious. But the questions are neither trivial nor the answers obvious. In fact the proceedings raise age—old questions of morality and enter areas where the Law and the State have often found difficulty in drawing an appropriate line between individual freedom on the on the one hand and unfair discrimination on the other: in modern terminology, the issues concern the interface between freedom of religion and the right to employment. Virtually identical issues have recently been placed before the Equal Employment Opportunity Commission in Texas, U.S.A.
In our view the questions raised are ones to which there are as a matter of morality no absolute answers. Rather it is a matter of where the line is to be drawn between competing rights. For us that line is drawn by the Human Rights Commission Act 1977 (“the Act”), which it is our task to interpret. The Act provides a number of exemptions for those wishing to employ people of a particular religious or ethical belief in an endeavour to draw a reasonable and sensible line. But the very fact that a line must be drawn results in some who do not approve the place at which the line is drawn, having strong feelings about the rights and wrongs of the situation.
We do not doubt the sincerity of all the parties and the numerous witnesses who gave evidence before us. Sincere people are not, however, always right. Indeed, after hearing all the evidence, we were left with the impression that some of the witnesses on both sides of the proceedings have somewhat myopic views about the rights and concerns of both minorities and majorities.
Specifically in relation to the rights of Christians, we were presented with considerable defence evidence concerning the right of a Christian person to employ whomsoever he or she wishes. Some of the witnesses presenting this viewpoint had little to say about the rights of employees and the need to help the unemployed or the disadvantaged. Yet it is our understanding that the teachings of Christ require care and compassion for others.
On the other hand Christ also, as was stressed to us, told his disciples that when two or three are gathered together in his name, there he will be also. This is one facet of Christian life which Mr. Sides, who is effectively the proprietor of Eric Side Motors Company Limited, considers important. His evidence was that he desires to operate a business employing “born again” Christians.
We mention these matters, not in order to become involved in moral or theological arguments, but to illustrate that problem is many sided. Rights asserted by one person may diminish another’s freedom. When those who assert their rights are conscious of the needs of others, it is nearly always possible to reach a fair and balanced solution. When that consciousness is missing it leads to the abuse of rights either unwittingly or wittingly (an extreme example of the latter being use of the device of advertising for “Christians only” in Nazi Germany as a means of excluding Jews).
We also mention that hypothetical problems and situations, many of which were posed to us in submissions or evidence, are frequently unreal and removed from that which in fact occurs. Particularly in the field of human rights, the life of the law is not logic but experience. History is replete with examples where the strict and apparently logical application of moral or religious views has led to great intolerance and injustice. It was interesting to us that some of the witnesses who gave evidence were not willing to equate religious discrimination with other forms of discrimination, e.g. in relation to race or sex. Those who have little difficulty in saying that our law must ensure there is no discrimination on account of race, are averse to the view that the law should also ensure there is no discrimination on the ground of religious or ethical belief. This distinction would be understandable if all those with beliefs, Christian or otherwise, were tolerant of the rights of others and minorities, as in many if not most cases their belief requires. Regrettably, this is not always so. Moreover, those in a country who constitute the majority by no means always appreciate when their actions are discriminatory against minorities.
Although the dispute between the parties raises an issue of principle, the primary defence of Eric Sides Motors Company Limited is not one of principle at all. As we later mention, Mr. Sides when giving evidence on behalf of his Company said that, while he asserts the the right to do so, he did not in fact refuse to employ Mr. Robinson (the person who sought employment) on the
ground that he was not a Christian. In these circumstances, we think it a pity that the matter was not able to be resolved by way of conciliation. The position was eventually reached where the Plaintiff had
little option but to take proceedings before the Tribunal, and the strong feelings aroused proved incapable of resolution despite several attempts. The outcome was a lengthy hearing with the Defendants raising a whole series of defences.
We are conscious that we are dealing with deeply felt and sincere views. For that reason it seems to us that there is all the greater need to be dispassionate and clear about the issues. It is important to appreciate that in the proceedings before us the right of Mr. Sides or the employees of his Company to maintain and exercise Christian beliefs is not in question. Nor is there any question about the right to use the business for the propagation of the Christian faith. The only issue of principle is the claim made on behalf of Eric Sides Motors Company Limited that freedom of religion should include the right to advertise for, and give preference in employment in a service station business to, those people who have a “born again” Christian commitment.
Whatever the rights and wrongs of the moral and theological arguments, our decision must, as we have said, be governed by the terms of the Act. The Act sets out to promote the advancement of all human rights, which include both the right to work and freedom of religion. As Dr. Barton pointed out, the Act is generally in accord with the United Nations International Covenants which have been adopted in New Zealand and many other countries. Moreover, in New Zealand rights have usually been recognised as qualified. As a result it is rare to find express statements of absolute rights. In general, the situation in New Zealand is, as in Australia, that all freedom is governed by the law: James v Commonwealth of Australia [1936] A.C. 578 at 627.
2. The Pleadings and Interlocutory Matters
The Plaintiff issued three separate proceedings. The first proceedings, as amended, were against Eric Sides Motors Company Limited and sought the following remedies:
“ 1. A declaration under Section 38(6)(a) of the
Act that the Defendant has committed a breach of Section 15(1) of the Act in refusing to employ Mr. Ian Robinson because Mr. Ian Robinson was not a Christian;
2. A declaration under Section 38(6) of the
Act that the Defendant has committed a breach of Section 32 of the Act by advertising a position of employment as being available only to Christians thereby indicating an intention to breach Section 15(1) of the Act;
3. An order under Section 38(6)(b) of the Act
restraining the Defendant from engaging in conduct of the same kind as that constituting the breach referred to in paragraph 1 or in conduct of any similar kind as may be specified in the order of the Tribunal and, in particular, an order restraining the Defendant in future from refusing to employ people who are not Christians.
5. Damages in accordance with Section 40(1) of
the Act:
(1) Pecuniary loss suffered and expenses
reasonably incurred:
Loss of wages (net after deduction
of unemployment benefit) $171.40
(2) Damages in respect of humiliation, loss of dignity and injury to the feelings of Mr. Ian Robinson $500.00
6. Costs of the HUMAN RIGHTS COMMISSION of and
incidental to these proceedings in accordance with Section 38(7) of the Act; and
7. Such other relief as the Tribunal thinks
fit.”
The second proceedings, as amended, were against New Zealand Newspapers Limited as publisher of the Star (“the Star”) and sought the following remedies:
“ 1. A declaration under Section 38(6)(a) of the
Act that the Defendant has committed a breach of Section 32 of the Act by publishing an advertisement which indicated a preference to employ only Christians.
2. An order under Section 38(6)(b) of the Act
restraining the Defendant from engaging in conduct of the same kind as that constituting the breach referred to in paragraph 1 or in conduct of any similar kind as may be specified in the order of the Tribunal and, in particular, an order restraining the Defendant in future from publishing advertisements which indicate a preference to employ only Christians.
3. Costs of the HUMAN RIGHTS COMMISSION of and
incidental to these proceedings in accordance with Section 38(7) of the Act; and
4. Such other relief as the Tribunal thinks
fit.”
The third proceedings, as amended, were against the Christchurch Press Company limited as publisher of the Press (“The Press”) and sought the following remedies:
“ 1. A declaration under Section 38(6)(a) of the
Act that the Defendant has committed a breach of Section 32 of the Act by publishing an advertisement which indicated a preference to employ only Christians.
2. An order under Section 38(6)(b) of the Act
restraining the Defendant from engaging in conduct of the same kind as that constituting the breach referred to in paragraph 1 or in conduct of any similar kind as may be specified in the order of the Tribunal and, in particular, an order restraining the Defendant in future from publishing advertisements which indicate a preference to employ only Christians.
3. Costs of the HUMAN RIGHTS COMMISSION of and
incidental to these proceedings in accordance with section 38(7) of the Act; and
4. Such other relief as the Tribunal thinks
fit.”
At a conference held to determine issues it was agreed that it was convenient for all concerned if the three proceedings were heard together, provided it was clear that there were three separate cases, and that each case had to be determined individually on the evidence. The procedure for calling witnesses and cross—examination was agreed between the parties, thereby avoiding repetitive evidence and cross-examination. In dealing with the evidence we will likewise endeavour to avoid repeating our findings. We must, however, consider the evidence concerning each case individually. Where the defences raised are identical (as, for example the case of the Newspapers) we will, when we make findings covering two or all of the Defendants, indicate any different evidentiary factors.
After the proceedings were issued, Eric Sides Motors Company Limited sought an Order for Discovery. This required a hearing before the Tribunal. In a written decision the Tribunal declined the application, whilst indicating willingness to consider an application by the Defendant for the exercise of the powers contained in Regulations 5, 6 and 7 of the Equal Opportunities Regulations 1980 (“the Regulations”) and Section 4(c) of the Commissions of Enquiry Act. In the outcome no approach was made to the Tribunal for the exercise of those powers, and during the course of the hearing little emerged which indicated the necessity for either discovery or enquiry concerning documents held by the Plaintiff.
At the discovery hearing Dr. Barton raised several other interlocutory matters, being particularly anxious to ascertain the issues in dispute between the parties. Since Mr. Dalgety was not present at the discovery hearing, it was not possible for the Tribunal at the hearing to deal with the matters concerning the issues. It was left that the parties would confer in an endeavour to reach agreement concerning the issues. Unfortunately, this did not prove possible and it was necessary to hold a special meeting pursuant to Regulation 7 to determine issues. At that meeting Dr. Barton presented a list of issues which he desired to have clarified. On behalf of the Newspapers, Mr. Dalgety indicated the matters which were in issue and undertook to provide advice concerning any affirmative defences raised by the papers. Mr. Green did likewise. It emerged however that the Newspapers required the Plaintiff to prove the great majority of matters, and that Eric Sides Motors Company Limited required the Plaintiff to prove virtually everything. The attitude taken by the Defendants was that, if in due course it appeared the Defendants had required the Plaintiff to prove unnecessary matters, this could be reflected in any award of costs. In the Tribunal’s view, parties should make reasonable efforts to determine the issues really in dispute. The Tribunal does not have power to require parties to make admissions, nor does it desire to do so. On the other hand parties who unnecessarily protract proceedings must expect that this will be reflected in the costs awarded.
One of the affirmative defences raised by the Newspapers (and indicated by Mr. Dalgety at the meeting to determine issues) was that the Plaintiff had sued the wrong Defendant. It emerged that the Plaintiff had sued the Newspaper by their common names instead of suing the publishers. Mr. Dalgety contended that this was a fatal flaw which could not be remedied by way of amendment. In the outcome the Plaintiff proved the names of the publishers in evidence, using the procedure permitted by the Newspapers & Printers Act 1955. The Plaintiff subsequently sought leave to amend the names of the Defendants by naming the publisher in each case. This amendment was granted, the Tribunal being satisfied that there was power to do so, both in terms of section 51 of the Act and by analogy with the common law rules and decided cases. We do not set out our reasons in detail because Mr. Dalgety courteously conceded that this was unnecessary.
At the conclusion of the Plaintiff’s oral evidence Dr. Barton sought leave to introduce further evidence by way of affidavit. This application was opposed by the Defendants and, after hearing submissions, was declined by the Tribunal, primarily because of the content of the material and the lack of notice given to the Defendants. The Tribunal does not wish it to be thought that it is opposed to the tendering of affidavit evidence in appropriate cases. Such evidence can result in considerable cost and time savings. Depending, however, on the nature of the evidence it may be important for the opposite party to be given advance notice, so that there is a proper opportunity to rebut the evidence. The Tribunal does not wish to lay down immutable procedures in relation to affidavit evidence, and considers that each application must be considered on merits according to the justice and fairness of the application. The Tribunal will be sympathetic to any procedures which save costs and delay, provided these do not result in prejudice to a party.
After the conclusion of the evidence of Mr. Sides, who was the first witness called on behalf of Eric Sides Motors Company Limited, Dr. Barton gave notice that he intended at the conclusion of all the evidence to ask the Tribunal to amend the Plaintiff’s proceedings. He indicated that the Plaintiff desired to seek a declaration under Section 38(6)(a) of the Act upon the ground that Eric Sides Motors Company Limited had committed a breach of Section 18(1) of the Act in making an enquiry from an applicant for employment which indicated, or could reasonably be understood as indicating, an intention to commit a breach of Section 15(1). This application was opposed by the Defendants. At the conclusion of the evidence the Tribunal heard detailed argument, following which the application was declined. We will at a later stage in this decision refer to our reasons for so doing.
3. History
On Saturday 3rd March 1979 Ian Robinson, who was then aged 16, saw an advertisement in The Press. At that time Mr. Robinson was unemployed. He had left school in October 1978, after which his first job was as a forecourt attendant in Patel’s Service Station. He worked there for five weeks, and then was asked to leave because he was considered not to be quick enough. Following that employment he had a number of temporary jobs. When he saw the advertisement in The Press he was unemployed. The Press advertisement read:
SERVICE STATION ATTENDANT
We have a vacancy for a keen Christian person
16—18, who is not afraid of work, to assist
on our Forecourt, only permanents need apply.
Apply: ERIC SIDES MOTORS
Cnr. Durham and Lichfield Streets.
Mr. Robinson was anxious to obtain employment, and said he bought a copy of The Press particularly to look for possible jobs early on the Saturday morning. He thought the advertised job would suit him, and telephoned Mr. Sides. He made three calls before contacting Mr. Sides. Mr. Robinson’s evidence concerning the conversation was that, when he did reach Mr. Sides, he told him that he was ringing with regard to the advertisement in The Press, and gave his name. Some aspects of the conversation are in dispute, but in general terms it is agreed that Mr. Sides asked Mr. Robinson’s age and made enquiries about his experience and other employment. On learning the history of Mr. Robinson’s employment, Mr. Sides made a comment, or asked a question, to the effect that perhaps Mr. Robinson was a fly-by-night. Mr. Robinson says he then explained that his jobs had mostly been temporary ones, and it is not in dispute that Mr. Sides then asked questions about Mr. Robinson’s religion. He asked whether or not Mr. Robinson was a Christian, to which Mr. Robinson responded that he was (or words to that effect).
Mr. Robinson said that Mr. Sides also asked what Church he belonged to, to which he responded the Church of England (Mr. Sides stated he had no recollection of this). After that Mr. Sides enquired whether he went to Church on Sunday (or what Church Mr. Robinson went to), to which Mr. Robinson responded that he did not go to Church. At that stage, according to Mr. Robinson’s evidence, Mr. Sides told him that it was no use coming in for an interview because he did not go to Church on Sunday. The conversation then terminated.
Although the precise words are not agreed, the evidence of both Mr. Robinson and Mr. Sides was generally in agreement concerning the conversation, except that Mr. Sides did not recollect any reference to Mr. Robinson’s actual Church and firmly denied saying that it was no use Mr. Robinson coming for an interview because he did not go to Church on Sunday. Mr. Sides said the underlined words were not used, and that what he said was words like “It does not sound like you are the person we are looking for”. In cross—examination Mr. Robinson conceded that Mr. Sides may not have used the underlined words, and also that he (Mr. Robinson) had not used those words in a written statement which he made to the plaintiff on 31st October 1979, in which he said that the conversation concluded with Mr. Sides saying “It is no use coming in then for an interview because you (probably) won’t get the job”. Mr. Sides also denied suggesting that it was no use coming in for an interview.
We think, however, there is no doubt, whatever the precise words used, that Mr. Robinson obtained the clear impression that he was (a) being refused an
interview, and (b) that this was because he did not go to Church regularly (or, alternatively, was not a Christian in Mr. Sides’ terms). This was what Mr.
Robinson apparently told his mother immediately after the telephone conversation concluded, and it was what upset his mother, to the extent that she on the Sunday telephoned a Radio Avon talkback program to raise the topic. In the discussion the radio announcer mentioned that Mrs. Robinson could go to the Citizens’ Advice Bureau about the matter, which in fact she did the following day and was then told about the provisions of the Act. Mrs. Robinson thereupon, on 6th March 1979, wrote to the Commission stating:
“My son a 16 year old rang Mr. Sides re this job and was informed that because he did not attend church regularly he was not a ‘Christian’ and could not have an interview for the job.”
Mrs. Robinson asked the Commission to take action, stating that she felt very strongly about the matter:
“not just because my son was refused an interview but because of the amount of young people out of work and jobs so hard to come by that this type of contravening of the Act should be halted.”
In her letter to the Plaintiff Mrs. Robinson enclosed a copy of The Press advertisement, and on 21st May 1979, the Plaintiff wrote to Mr. Sides advising that a complaint had been received. The letter gave details of the complaint, referred to the provisions of the Act, and concluded by saying:
“we would like to know why it was considered necessary to seek a Christian for the job. We would also appreciate it if you would confirm whether you refused to interview applicants who were not Christians”.
Mr. Sides was out of New Zealand at the time, but replied on behalf of his company by letter of 11th July 1979. We do not set out the letter in full, but record that the letter included the following statements:
“I am not sure that it is right to say that I refused to interview Mrs. Robinson’s son - that situation I don’t think arose — but what I think I said was that if he wasn’t a Christian I didn’t think he was the person I was looking for – so it is true I would not have held out much hope for him if he did apply for the position”
and in response to the questions whether Mr. Sides had refused to interview applicants who were not Christians:
“I can’t be sure – but I think it fair to say that I am not aware of refusing to interview anyone who was not Christian – but I would make it very clear and definite during my interviews that I would be giving preference to a person of equal qualification if he or she was a Christian”.
Thereafter the matter appears to have lapsed for a period. However, on the 12th October 1979 an article appeared in The Star in which Mr. Sides was quoted as saying that he was willing to go to Court to defend his right to advertise for committed Christian staff, and criticizing the Chief Human Rights Commissioner for inconsistency. About that time there was also a television item concerning the matter. What apparently happened was that in August 1979 the Plaintiff had considered a complaint concerning Moslem slaughtermen, and had issued a report which stated that employment of Moslem slaughtermen did not constitute a breach of the Act. It seems it was this report that caused Mr. Sides to make his comments to The Star concerning inconsistency. At all events the matter then became one to which considerable publicity was given.
Following the publicity, the Chief Human Rights Commissioner on 19th November 1979 wrote to Mr. Sides asking for an appointment to discuss the complaint made by Mrs. Robinson. On the 23rd November 1979 the Commissioner met Mr. Sides in Christchurch and handed him a letter advising that the Plaintiff was of the opinion that Mr. Sides and the Company acted in breach of the Act, and that the Plaintiff now had the obligation in terms of the Act to endeavour to conciliate between Mr. Robinson and Mr. Sides. The letter also sought a negotiated settlement, undertakings as to the future and advised that, if a settlement could not be obtained, the Plaintiff must consider whether to take proceedings before the Tribunal.
At the meeting there was a cordial discussion between the parties, but Mr. Sides declined to alter his stand. In the outcome the Plaintiff as required by the Act issued its formal report, of which a copy was sent to Mr. Sides, and commenced proceedings before the Tribunal.
As well as communicating with Mr. Sides, the Plaintiff communicated with The Press and The Star by letters of 7th November 1979. In the case of The Press, the letter referred to the advertisement which Mr. Robinson had answered, and asked whether the paper had any explanation or justification for the publication of the advertisement, since the Plaintiff must form an opinion as to whether there was a breach of Section 32 of the Act. The Press responded by letter of 20th November stating in effect that it was not considered the advertisement was in breach of the Act. When the Chief Human Rights Commissioner was in Christchurch to see Mr. Sides on 23rd November, he also saw Mr. Barker, the General Manager of The Press, who subsequently made available the original copy of the advertisement which showed that Mr. Sides had initially asked for a “keen Christian girl” but that The Press had altered the word “girl” to “person”. Following the meeting with Mr. Barker the Plaintiff advised The Press that the Plaintiff was of the opinion the advertisement was in breach of Section 32. The Press was given the opportunity to make submissions as to why proceedings should not be taken before the Tribunal but did not avail itself of this opportunity. On 4th March 1980 the Plaintiff issued its formal report relating to the complaint, a copy of this being sent to the Press by letter of 21st March 1980. At the same time The Press was advised that proceedings would be taken before the Tribunal.
Events in relation to The Star followed a similar course. When writing to The Star on 7th November 1979, the Plaintiff referred to The Star publishing an advertisement identical to that which had appeared in The Press. The Executive Editor of The Star, Mr. Sayers, responded to the Plaintiff, by letter of 19th November in which he pointed out, inter alia, that The Star had not published an identical advertisement on the 3rd, but had published a similar advertisement on the 7th of March. In his letter Mr. Sayers expressed dismay at the view taken by the Plaintiff, and concluded by inviting the Plaintiff “to lay the Christchurch Star issue before the Court so that it can be aired and determined publicly”. In the meantime Mr. Hardie, the Christchurch Manager of The Star, had also replied to the Plaintiff’s letter and on 19th November the plaintiff wrote to Mr Hardie referring to Mr. Sayers’ letter, and seeking further information. The invitation to comment by way of explanation was repeated. The Commissioner also endeavoured unsuccessfully to see Mr. Hardie in Christchurch. On 23rd November Mr. Hardie replied that it was impossible to track down The Star’s copy. He also declined the invitation to comment.
It emerged from the evidence that the reason why The Star did not publish the identical advertisement on 3rd of March was that it had deleted the word “Christian” from the advertisement which was published on that date. But after a complaint to it by Mr. Sides, The Star published a further advertisement on March 7th in the following terms:
ATTENDANT
We are looking for a keen Christian person
16—18 years with good education. Must have
driver’s licence and like people and work.
Must have an outgoing personality.
Duties include petrol pumps, car grooming,
etc. on our forecourt.
Must be honest and accurate with figures.
This is a key appointment and we will select
the person we feel best suited to the position.
If you feel you qualify, apply now to:
ERIC SIDES MOTORS
Corner Durham and Lichfield Streets.
Details of the 7th March publication were ascertained by the Plaintiff shortly after making the enquiry from The Star and Mr. Hardie was informed of this by letter of 13th December. On 21st December the Plaintiff advised The Star it was of the opinion that the advertisement was in contravention of Section 32 of the Act. The Star was given the opportunity to be heard, but like The Press did not avail itself of this opportunity. On the 21st March The Star was sent a copy of the Plaintiff’s formal report, and advised that proceedings were being filed.
The above history of events is intended only to be summary. We have not endeavoured to set out all the evidence because the hearing extended over five days during which we listened, patiently we hope, to a vast amount of evidence from a large number of witnesses. In our view a good deal of the evidence verged on the irrelevant, fascinating though it may have been from a philosophical point of view. We will where necessary refer to the specific evidence relating to the various defences as we consider them.
4. The Defences
As we have previously mentioned, the breaches alleged against each Defendant and the defences raised are the subject of three separate and independent proceedings. Each Defendant’s case must therefore be considered on its own facts. In the case of the Newspapers, Mr. Dalgety raised identical defences and did not seek to distinguish between either of the Defendants. We will therefore consider the Newspapers’ defences together, but will indicate any factual differences which may be relevant.
In the case of all the Defendants we think it particularly important to keep in mind the separate nature of the defences. Each Defendant relied upon a series of defences, some of which raised very different issues from those raised by other defences of the same Defendant, or defences of the other Defendants. A striking example in the proceedings against Eric Sides Motors Company Limited is that the primary defence was that Mr Sides never refused to employ Mr. Robinson, i.e. that Mr Sides never made a decision against employing Mr. Robinson upon the ground that Mr Robinson was not a Christian. Yet throughout the whole history of this matter Mr. Sides has publicly and vigorously asserted his Company’s right to do so, and indeed that remained his stance in relation to the other defences which the Company raised.
As between the Defendants a similar situation arose. Thus one of the defences raised by Eric Sides Motors Company Limited was that the advertisement was intended to indicate the Company was seeking a committed or practising (Mr. Sides used the words “born again”) Christian, because the whole business is devoted to the living of the Christian faith. Hence it was argued that the exception permitted by Section 15(7)(b) applied. On the other hand, one of the Newspapers’ principal defences was that the advertisement meant nothing more than “Christian” in the adjectival sense, ie. a good, decent, honest and hard working person. Hence it was argued by the Newspapers that the advertisement was not in breach of the Act.
A. The Defences advanced by Eric Sides Motors Company Limited
In relation to these we first note that in particulars given to the Plaintiff shortly before the Trial, Eric Sides Motors Company Limited raised the defence of bad faith under Section 35(1)(b) of the Act. This defence was, quite properly, abandoned after the evidence of Mr. Robinson and his mother had been given.
We also record that there is no need to distinguish between the actions of Mr. Sides and the Company. The proceedings issued by the Plaintiff correctly name the Company as the Defendant, but, once the evidence had been heard, it was not disputed by the defence that Mr. Sides was at all times acting with the authority and on behalf of the Company. Nor was it disputed that his views and actions constitute a true and correct reflection of the Company’s views and actions and vice versa. Indeed the evidence given by Mr. Hanna made it clear that Mr. Sides was the Company’s alter ego.
With regard to the evidence of Mr. Sides and Mr. Robinson, we are satisfied both were endeavouring to be completely truthful. Submissions were made to us that reliance could not be placed on Mr. Robinson’s evidence because in his cross-examination he admitted that in his childhood he had suffered a head injury which caused him some memory difficulties. Listening carefully to his evidence, however, we were impressed by his version of events. He made no attempt to exaggerate or elaborate the bare facts and, once he overcame his initial nervousness, gave a clear and balanced version of the events. He conceded, as did Mr. Sides, that he could not claim to recollect the precise words of the conversation. For what it is worth, his evidence was corroborated by his mother, to whom he related the conversation immediately after its conclusion, although she was not present while the conversation took place. Mrs. Robinson also impressed us with her truthfulness. She told us that, like Mr. Sides, she was a born again or committed Christian, although at the time of the incident concerning her son she was only a nominal Christian. Where there are discrepancies between the evidence of Mr. Robinson and his mother on the one hand and Mr. Sides on the other, we prefer the evidence of the former, principally because it was some time before Mr. Sides was approached and asked to recollect the matter, but also for the reasons we have mentioned above.
The two breaches of the Act alleged against Eric Sides Motors Company Limited relate to Section 15(1) (refusing to employ Mr. Robinson because he was not a Christian) and Section 32 (advertising a position of employment as being available only to Christians, thereby indicating an intention to breach Section 15 (1) of the Act).
In relation to those allegations, the defences advanced by Eric Sides Motors Company Limited were grouped by Mr. Green under three heads, namely:
(a) The defences relating to Mr. Robinson alone.
(b) The defences relating to the advertisements alone.
(c) Combined defences relating to Mr. Robinson and the advertisements.
For convenience we propose to deal with the defences in the sequence followed by Mr. Green.
(a) Defences relating to Mr. Robinson alone.
(i) the first defence advanced under this head was that the Defendant had never refused or omitted to employ Mr. Robinson. Mr. Green contended the evidence established that the Defendant did not make any decision to refuse or omit to employ Mr. Robinson during the course of the telephone discussion, and that, if at the conclusion of the telephone call Mr. Robinson had still asked for an interview, he would have been given one. Mr. Barton in response contended that, whatever happened, there was a refusal or an omission on any normal use of those words. This is a submission with which we agree. Whether Mr. Sides said “It doesn’t sound like you are the person we are looking for” (as he said in his evidence and in his letter of 11th July 1979 to the Plaintiff) or said “it is no use coming for an interview” (as Mr. Robinson said in his evidence and in his statement of 30th October 1979 and to his mother and to The Press on 29th March 1980), we are satisfied that, taking the conversation as a whole, and viewing what was said objectively, Mr. Robinson effectively had it made clear to him that there was no hope of his obtaining the job.
Although Mr. Sides says that he did not affirmatively refuse an interview, and says that, had Mr. Robinson persisted in a request for an interview, that would have been granted, we think that a reasonable person, let alone a rather diffident 16 year old, would have been well and truly rebuffed by whatever comment Mr. Sides made before the conversation concluded. Even a much more sophisticated person than Mr. Robinson would not have pressed for any further interview in the light of the discussion which took place.
As a subsidiary defence under this head, Mr. Green also pointed out that the notice of intention to bring proceedings issued by the Plaintiff made no reference to an omission to employ, but simply referred to a refusal to employ. In all the circumstances of the telephone conversation we are of the view that the words used by Mr. Sides amounted to a refusal. If, however, the words or his actions only amounted to an omission, we would apply Section 51 of the Act.
(ii) Mr. Green’s second submission under this head was that if Mr. Sides did refuse or omit to employ Mr. Robinson, then the refusal or omission was unrelated to the question of religion and was simply made for sound business reasons. Mr. Green contended that the Tribunal should accept the evidence of Mr. Sides that he never reached the position of making a judgment about Mr. Robinson, but that if he had been forced to do so, he would have declined to employ him because of his age and the number of jobs he had had since leaving school, and that this was the basis for the view which Mr. Sides says he expressed that it did not sound as if Mr. Robinson was the person he was looking for.
Mr. Sides said in his evidence that his advice to Mr. Robinson was based “solely on the earlier matters raised in the discussion, and was not related to his religious background, which was really only incidental at that stage”. As we said earlier, the point was made in cross—examination that Mr. Robinson in his written statement did not suggest Mr. Sides referred to religion when indicating there was no point in coming in for an interview. For a variety of reasons, however, we think it likely that Mr. Sides did link the two matters. In the first place, and perhaps most importantly, it is what Mr. Sides said in his letter to the Commission on 11th July 1979. In that letter Mr. Sides stated “What I think I said was that if he wasn’t a Christian I didn’t think he was the person I was looking for - so it is true I wouldn’t have held out much hope for him if he did apply for the position”. Although Mr. Sides said in his evidence that he did not refer to religion when he told Mr. Robinson he didn’t think he was the person he was looking for and says he made up his mind before he asked any question concerning religion, we are of the view that Mr. Sides’ earlier statement in the letter of 11th July is closer to what transpired. That statement was made by Mr. Sides in the context of an assertion that he had never refused an interview (which aspect of the evidence we have already dealt with), but the statement makes it clear that Mr. Sides did make reference to Christian belief. This is consistent with (a) Mr. Sides’ insistence that Christianity is a qualification for employment in his business (although he does, and did in the case of this particular position, consider a non Christian and employ one if a suitable Christian is not available), (b) the fact that there was no point in Mr. Sides asking questions about Mr. Robinson’s religion if he had already completely made up his mind that he was not a suitable person, and (c) Mr. Sides refused to withdraw from his alleged assertion when Mrs. Robinson telephoned him in October. Mr. Sides suggested that he only asked the religious questions because he was “always interested in people”. We think, however, that the reasonable inference is that the questions were asked because the matter of Christian belief and practice was always of some relevance to Mr. Sides in relation to a decision whether or not to employ a person. Additionally, Mr. Sides now says that he did not consider Mr. Robinson suitable because he was “too young”, yet the advertisement asked for a person in the 16-18 age group. Moreover, the thought that Mr. Robinson was a fly-by-night had to some extent been explained by Mr. Robinson prior to the asking of questions about religion (though Mr. Sides said he had no recollection of Mr. Robinson mentioning Patel’s Service Station).
Taking into account all the above factors, we find it impossible to say that the questions and answers relating to religion were entirely disregarded by Mr. Sides when he told Mr. Robinson that there was no use in coming for an interview (or that he was not the sort of person he was looking for).
In terms of the Act, however, the refusal or omission to employ must be by reason of “the religious or ethical belief of the person”. There is no definition of that phrase in the Act, but we agree with Dr. Barton that the most appropriate test is whether religious or ethical belief was “a substantial and operative factor”: General Motors Holden Pty. Limited v Bowling (1976) 51 A.L.J.R. 235. There is also a very helpful discussion of the phrase “for the reason that” in the judgments of the High Court of Australia in Mikasa (N.S.W.) Pty. Limited v Festival Stores [1972] HCA 69; (1972) 127 C.L.R. 617. The judgments in that case speak of it being enough “if it is an operative reason, that is to say a substantive reason in the totality of reasons” (Barwick C.J. at 635) and “a substantial and proximate reason” (Stephen J. at 656).
In Mr. Sides’ case we have not found it easy to determine the extent to which he was in this instance influenced by the religious factor. We think, for example, it is possible that had he received answers to the religious questions which were favourable, he might have encouraged Mr. Robinson to come for an interview.
We also accept that Mr. Robinson genuinely considered he was turned down because of lack of religious belief. Nevertheless, Mr. Sides in his evidence, made it clear that he gives great weight to a person’s ability as a worker when considering employment and that it was in his view an unfavourable factor that Mr. Robinson after several short jobs was currently unemployed. We have concluded that, despite Mr. Sides’ assertion of his right to employ only Christians, a person’s working ability is of overriding importance to him. We consider that in all probability Mr. Sides formed an unfavourable view of Mr. Robinson’s application during the conversation which preceded the questions concerning religion, and that Mr. Robinson’s answers to these questions at the most only served to confirm the unfavourable view Mr. Sides had already formed. Whilst, therefore, we consider that the religious issue was a factor in Mr. Sides’ decision, we are, after giving the matter most careful thought, left in doubt whether it was a substantial and operative factor, or expressed alternatively, whether it was a substantive reason in the totality of reasons. Being left in doubt, we consider that, the burden of proof being on the Plaintiff, we must give the benefit of that doubt to the Defendant, and find against the Plaintiff on this issue.
The above finding makes it unnecessary for us to consider in any detail the exact meaning of the phrase “religious or ethical belief”. This was dealt with at some length in the submissions made to us by Dr. Barton. In case, however, this matter proceeds further, we briefly record our views. It is necessary first to note that the phrase “ethical belief” is defined in Section 2 of the Act as meaning “the absence of a religious belief whether in respect of a particular religion or religions or all religions”. It is clear therefore that a refusal to employ someone because of a lack of religious belief is a breach of the Act, and it would seem to matter little whether Mr. Robinson considered himself to be a Christian or not. As Dr. Barton pointed out, whether the situation is analysed on the basis of an inadequate religious belief or an ethical belief, any decision by reason of those factors would be a breach of the Act.
Before leaving the first defence raised by Eric Sides Motors Company Limited, we should advert to the application made by the Plaintiff to add the further allegation of a breach of Section 18(1) of the Act. As we previously mentioned, this application was declined by the Tribunal. Again, however, in case this matter proceeds further, we should briefly record the Tribunal’s views concerning the evidence and the reasons for declining the application.
Insofar as the evidence is concerned, the Tribunal considers, although admittedly without the benefit of argument on the point from counsel for the Defendant (because this was unnecessary once the application for amendment was declined) that there is clear evidence of a breach of Section 18(1). In the Tribunal’s view Mr. Sides made an enquiry of Mr. Robinson which could reasonably be understood as indicating an intention to commit a breach of Section 15, i.e. to refuse to employ by reason of religious or ethical belief.
In relation to the Tribunal’s reasons for declining the application for amendment, we record that they were stated at the time as follow:
“We have given this matter careful consideration over the adjournment.
The application for an amendment was made at a late stage and we are left in the situation where we consider there is a possibility of injustice or unfairness to the Defendant if the amendment is allowed.
This possibility inter alia arises
(1) in relation to the non compliance with the procedures of the Act (which we do not by itself regard as a ground for refusing an amendment).
(2) in relation to the inability to cross-examine
the Plaintiff’s witnesses which we think is
only inadequately repaired by recalling
witnesses now.
(3) The fact that Mr. Sides was not aware of the
possibility of a Section 18 cause of action
when he elected to give evidence and while he
was giving evidence.
We may say Dr. Barton that we are by no means indicating that we consider the Defendants have acted reasonably towards the Commission. Whether or not they have done so, we must base our decision on your application on considerations relating to fairness to the Defendant in the particular circumstances of the application.”
(b) Defences relating to advertisements alone.
Before dealing with these defences we record that it is not in Dispute that Mr. Sides, acting for and on behalf of Eric Sides Motors Company Limited, caused the advertisements to be published.
(i) Under this head the first defence advanced by Eric Sides Motors Company Limited was that the proceedings brought in relation to the advertisements were misconceived. Mr. Green contended that “as the proceedings stand the grounds for the proceedings are that the advertisements disclosed an intention to discriminate against Mr. Robinson... and that the advertisements did not disclose any such intention”. He said that if an intention to unlawfully discriminate was disclosed (which the Defendant denied) it must be against non—Christians only, and that Mr. Robinson could not come within that category as he himself considered he was a Christian. Mr. Green also made submissions concerning the Plaintiff’s right to issue proceedings on behalf of a class, and suggested that this should have been done.
We cannot agree with the submissions made by Mr Green. As we view the matter, the Notice of Intention to Issue Proceedings filed by the Plaintiff simply alleges a breach of Section 32. The Plaintiff has, in terms of Section 38(2) of the Act, a discretion to bring a class action, but there is no obligation to do so. The Plaintiff’s claim in relation to Section 32 is for a declaration. No damages are sought. The Notice of Intention to Bring Proceedings does not refer, nor does it need to refer, either to Mr. Robinson or to any class of people upon whose behalf the proceedings are brought. The Plaintiff’s case, as we understand it, is that there was a breach of Section 32 which is to be ascertained on an objective basis according to the evidence. Mr. Robinson’s actions and reactions may not even be relevant as evidence of what a reasonable person would have understood on reading the advertisement. The test whether the advertisement could reasonably be understood as indicating an intention to commit a breach must clearly be an objective one, as was in fact submitted by Mr. Dalgety (whose submissions on that aspect were adopted by Mr. Green). The case to which Mr. Dalgety referred, Commission for Racial Equality v Associated Newspapers Group Ltd. [1987] 1 W.L.R. 905, was accepted by Mr. Hodder on behalf of the Plaintiff as correctly stating the test to be applied to Section 32.
We are unable to see any reason for suggesting that the plaintiff’s proceedings in relation to Section 32 were misconceived on the basis argued by Mr. Green.
(ii) The second defence advanced by Eric Sides Motors Company Limited under this head was that “the advertisements of themselves did not reveal an intention to refuse to employ on the grounds of religious belief”.
In support of this submission Mr. Green relied on the dictionary definitions of Christian, which include Christian in the adjectival sense as meaning “civilized, kind, kindly, gentle, beneficent” and “one born in a Christian country or of Christian parents who has not definitely adhered to an opposing system” (Websters International Dictionary) and “a human being, a decent respectable or presentable person” (Shorter Oxford dictionary). Mr Green stated that, while it was clear from the evidence that Mr. Sides’ personal view of what constitutes a Christian goes far beyond being a decent person, nevertheless the defence relied on the submission that an ordinary person reading the advertisement would view the word Christian in its sense as a civilized, kind, decent, born in a Christian country, etc. person.
In relation to this defence we first note that the words used in Section 32 are “indicates or could reasonably be understood as indicating”. It therefore follows that it is possible for an offence to be committed under section 32 although there has been no offence comitted under Section 15 (1). It also follows, as we have previously mentioned, that the test is an objective one. We think that the words used by Lord Denning M.R. in the Commission for Racial Equality case are appropriate when he said at page 908:
“The question is one for the Tribunal of fact: what would an ordinary reasonable man or woman understand by the words? Not an unreasonably suspicious person; not one who is apt to look for hidden meanings; not one who is of this racial group or that; not one who knows South Africa well; not one who knows nothing of it; not even a member of the Race Relations Board. But just an ordinary reasonable person;”
In responding to Mr. Green’s contentions (and similar contentions advanced by Mr. Dalgety on behalf of the Newspapers) Mr. Hodder, on behalf of the Plaintiff, made various points some of which we consider provide convincing answers to the contention that an ordinary reasonable person reading the advertisements inserted by the Defendant would assume that the word Christian meant no more than a good, kind, decent, living in a Christian country, etc. person.
Mr Hodder first pointed out that it was certainly not Mr. Sides’ intention that the advertisement should be read in that way. He was plainly intending to convey that he required a committed or born again Christian, not a nominal one. It may, however, be debatable whether Mr. Sides’ intentions are relevant to an objective test (see, for example, Lord Denning’s remarks immediately preceding the passage to which we previously referred in the Commission for Racial Equality decision). We regard the actual wording of the advertisements as the matter of crucial significance. As Mr. Hodder pointed out, the text of the advertisement which appeared in The Press has the words “keen Christian” as the controlling or key phrase. Mr. Hodder also pointed out that it is difficult to read the word “keen” as meaning “eager” or “hardworking”, because that is specifically stated in the balance of the advertisement. A more reasonable reading is that “keen” qualifies and reinforces the word “Christian”. Similarly, a common sense reading of the advertisement makes it difficult to suggest that “Christian” was merely a shorthand for the desirable qualities of an employee, because other qualities are listed separately.
All the above comments concerning the advertisement which appeared in The Press in our opinion apply equally if not more strongly to the advertisement which appeared in The Star. Viewing the advertisements objectively, we are of the opinion that an ordinary reasonable person reading the advertisements would conclude that they indicated an intention to commit a breach of Section 15(1) of the Act, i.e. that the advertiser would refuse or omit to employ by reason of religious or ethical belief (lack of Christian belief).
We also consider that the normal dictionary definitions of the word Christian support rather than detract from this reading of the advertisements. The references given by Mr. Green and by Mr. Dalgety are in several instances designated in the respective dictionaries as either colloquial, slang, or informal. In addition, they are given as subsidiary meanings to the primary meaning as relating to the religion of Christ, in respect of which no distinction is made between the use of the word Christian as an adjective or a noun. Mr. Hodder also pointed out that Heinemann’s New Zealand Dictionary, the only local dictionary referred to us, gave as the primary meaning of Christian “relating to Christ and the religion based on his teachings”, and as the secondary meaning “kind or humane (helping the old couple was a Christian act)”. He added that the dictionary did not suggest that “Christian” was in effect a shorthand way to describe decent, honest, considerate New Zealanders. Nor is this suggestion borne out by the evidence relating to classified advertisements where, if it was a common form of shorthand, one would expect to see it appearing much more frequently. Mr. Hodder finally pointed out that if the Defendant’s argument was correct, it could likewise be applied to the to the word “man”, so that it could be argued that it was not an offence to advertise for a man, because one of the subsidiary meanings of man is any human being male or female.
We do not overlook that evidence concerning the way individual persons said they would interpret the word “Christian” in an advertisement was tendered to the Tribunal from a large number of witnesses. The witnesses for the Newspapers uniformly quote “the golden rule” and suggested that they would read “Christian” in the sense of kind, decent, honourable, etc. On the other hand, witnesses called for the Plaintiff indicated that they would not so read the word. These witnesses were in many instances members of minority groups or other religions or atheists. A significant proportion of New Zealand population is composed of non Christians (it was suggested to us that the proportion was something like 20%, with the remaining 80% of the population entering some form of Christian affiliation on the census form: of the 80% only 20% was said to be committed practising Christians). It was also pointed out to us that Mr. Robinson considered he was a Christian because he had been baptised into a Christian church and believed in Christian principles.
For the same reason as we place little weight upon Mr. Sides’ intention in inserting the advertisements (the need for an objective test) we doubt the relevance of the evidence from individuals concerning their interpretation of the word “Christian” in the advertisements.
In any event because of its conflicting nature, and the naturally partisan views adopted on each side, we found the evidence from individuals unhelpful in relation to the interpretation of the advertisement. We also think it unsound to determine whether or not discrimination exists by reference to the views of people who constitute either a majority or minority group. This type of argument can, for example, lead to the absurd contention that the minority must expect the majority to act in a particular way, and if the majority sees no discrimination there is none.
We consider that the only useful and objective test returns to the words used in the context of the advertisement. Bearing in mind all the matters which we have mentioned, we are of the clear view that the advertisements indicate or could reasonably be understood as indicating an intention to commit a breach of Section 15(1) of the Act.
We also mention (although this was not raised by Mr. Green) that we do not consider it material whether the advertisements indicated an intention to employ Christians only (as alleged by the Plaintiff) or merely an intention to give preference to Christians. In our view there is a refusal or omission to employ by reason of religious or ethical belief (whether an employer declines to employ or gives preference to one person over another) whenever religious or ethical belief is a substantial and operative factor in the decision. The very fact that preference has been given to another because of religious or ethical belief must mean that religious or ethical belief was a substantial and operative factor in the decision to decline or omit to employ.
(c) Combined defences relating to Mr. Robinson and the advertisements.
We have found that Eric Sides Motors company Limited was not in breach of Section 15(1) of the Act because Mr. Robinson’s religious or ethical belief was not a substantial and operative factor influencing Mr. Sides.
It would therefore not normally be necessary for us to consider the other defences raised by Mr. Green relating to Section 15. In this case, however, we must do so because if Eric Sides Motors Company Limited is able successfully to raise these defences, this could mean that there was no breach of Section 32(1) of the Act. We therefore now turn to consider the remaining defences raised by Eric Sides Motors Company Limited.
(i) As the first defence under this head Eric Sides Motors Company Limited submitted that in this particular case the Defendant was entitled to regard Christianity as a qualification for the work. Mr. Green submitted that “against the backdrop of evidence relating to the Christian nature of Mr. Sides’ business, only Christian staff would be qualified to work in the business. It was said by Mr. Sides in evidence that the Defendant Company was set up as a totally Christian enterprise, the true purpose of the business being not the selling and repair of motor cars, or the pumping of petrol, but rather the serving of the Lord, with the business merely being a platform for giving witness to the Lord’s work, and for the drawing of people together in Christian fellowship. Mr. Green contended that a non-Christian would not be qualified to achieve any of these things in working for the Defendant Company. He said that “implicit in the words ‘keen Christian’ was the message of the true intention behind having the person in the business”. As we have remarked, this is quite contrary to the contention previously advanced by Mr. Green concerning the meaning an ordinary reasonable person would take from the advertisements.
In considering these submissions we think the first essential is to look closely at the words of the Act. Section 15(1)(a) provides that it is unlawful to “refuse or omit to employ any person on work... for which that person is qualified”. It is clear that the word “qualified” relates to work. The evidence establishes that the work in question was normal forecourt work which has been done by non-Christians in the past and subsequently. In our view it is not possible to argue that it is a qualification for the work in question that the person should hold a Christian belief. In saying this we pay full regard to the passages in the evidence of the Rev. Yule in which he pointed out that the separation of life into sacred and secular, or spiritual and material, reflects a distinctively modern outlook lacking justification in Christian tradition and Christian morality. The Rev. Yule was called on behalf of the defence, but as far as we could tell the views expressed in that portion of his evidence did not greatly differ from those of the Rev. Lai, who was called on behalf of the Plaintiff. Indeed the desire of a Christian to live his whole life as a Christian does not appear in any way to conflict with the requirements of the Act. It is, however, a different thing to contend that the job of a forecourt attendant, even in a business said to be entirely devoted to Christianity, must be performed by a Christian, i.e. that Christianity is an essential qualification for the job.
That contention as advanced by the defence in this case is simply too extreme in relation to the nature of the work. In this regard we mention:
(a) If the defence argument is correct, it would for example follow that a non-Christian should never be employed, or at least only employed temporarily until a Christian was found. So long as non-Christians are employed, the Defendant (on the basis of the argument advanced on its behalf) is employing persons who are not qualified for the work. Again, if a Christian employee were to lose his faith, he would cease to be qualified and the Defendant would be entitled to dispense with his services for cause.
(b) Looked at in a reasonable and objective way, it is apparent that a non-Christian forecourt attendant can do virtually all that is required in the work.
(c) We think that the interpretation which the Defendant seeks to place on the word “qualified” is one which was not intended by the legislature, and which, if applied in the sphere of sex, marital status or race, could create very grave problems. It was said to us that the sincerity of the Christian belief required would prevent any problems. We do not think, however, that sincerity can be the test. To take an example unconnected with the present case, it seems to us to be clear that a sincere belief in the supremacy of a particular racial or ethnic group would not justify a person (who desired to employ only members of that group) in saying that membership of the racial group was an essential qualification for employment because he or she was running a business devoted to establishing the racial supremacy of that group.
We are of the opinion that Section 15(1)(a) of the Act cannot bear the interpretation which the Defendant seeks to establish, and that, even on the most favourable assumption for the defence (i.e. that the business is entirely devoted to the propagation of Christian belief), this defence must fail.
We must also add that, having examined the accounts and evidence tendered to us, we are not able to accept that the whole purpose of the business is the propagation of the Christian faith. The Defendant’s accounts, although tendered in evidence, were not subjected to analysis before us either in cross-examination or submissions. We have, however, studied the accounts and other documents, which disclose that Mr. Sides has so ordered his affairs that his trading and business activities as a garage owner are accounted for in the normal way by company accounts which include tax paid income to the Sides family and donations to charitable or other organisations and individuals. In addition, he has formed family trusts and a charitable trust (called a Foundation and to which he has transferred substantial business assets) from which donations are also made. The trust or Foundation is not an unusual method of creating a charitable fund and distributing its assets or income under the requirements of New Zealand law, including the tax laws. The business of Eric Sides Motors Company Limited is, however, used to support Mr. Sides and his family in the usual way, and we do not consider it can be said that the business or its assets are devoted solely or principally to the service of the Lord or propagation of the Christian belief. Nor do we consider that the business of Eric Sides Motors Company Limited is a charitable or religious organisation. It is in fact a commercial garage and service station.
Before leaving this aspect of the defence, we should also refer to two other matters.
The first of these is that it was suggested to us that the interpretation of the Act for which the Plaintiff contends places a Christian employer in an impossible or devious situation. We do not, however, see that the Act does this or that it cuts across Christian principles or interferes with the ability of a Christian to devote his whole life to the service of Christ. We agree with Mrs. Darroch, herself a Christian, but one of the witnesses for the Plaintiff, who said:
“It is right that Christians should live their whole lives in the light of the gospel. There should be no distinction between sacred and secular. I think though that distinctions can be made along the lines drawn by the Human Rights Commission Act... It is not imperative to pray before pouring petrol. That does not stop Mr. Sides from beginning each working day with a prayer for his employees and witnessing to them of God’s salvation through Christ. Indeed, by employing non-Christians he may even be instrumental in adding to the Kingdom of God. If Mr. Sides and all other employers were legally able to discriminate on the basis of religion, this could lead to sectarianism and strife”.
The view that there should be no religious discrimination in New Zealand was supported by the evidence of the N.Z. Federation of Labour Canterbury District Trades Council. It is not difficult to foresee difficulties in New Zealand if there was such discrimination, for example in the case of a large employer who desired to employ only members of one religion or denomination. Indeed, many of the defence witnesses stated they were agents any discrimination between, for example, Catholics and Protestants, yet saw that situation as distinct from discrimination between Christians and, for example, Buddhists. In our view the Act permits no such distinction.
While we accept the views expressed by Christian people such as Mrs. Darroch, and also agree that very real problems would be caused if, for example, large employers sought to employ only members of one religion, we also accept that there are some occasions when it is appropriate to permit exemptions in relation to religious or ethical belief. This indeed has been recognised in the Act which provides for certain exemptions which seem to us to be wise and relatively generous in their scope. In the case of an employer who falls outside those exemptions, one would think that, if for example his or her business displays the characteristics expected of Christian people, it is likely that Christian employees will be attracted to it and will also display the characteristics sought by the employer. If it were established that, despite this, employers were having problems attracting staff of the right caliber, it might be possible for parliament to frame a further exemption for small employers (somewhat similar to that permitted in the case of partnerships: see clause 19 of the Act). The indications, however, from the evidence given by the Newspapers in the present case are that there is little demand from advertisers seeking to employ only members of a particular religion.
The second matter which we mention before passing from this aspect of the defence is the question of Moslems and Hallal killing.
It was suggested to us that the opinion of the Human Rights Commission that Hallal killing was not in breach of the Act was inconsistent with the present case. We do not, however, consider that we should make any comment concerning the opinion on Hallal killing because we have not heard any evidence about that matter, nor had the benefit of full argument.
(ii) As a second defence under this head Eric Sides Motors Company Limited relied on the provisions of Section 15(7)(b) of the Act.
Subsection 7(b) of Section 15 provides that nothing in Section 15 shall apply to preferential treatment based on religious or ethical belief where:
(a) The sole or principal duties of the position... (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 (such as by selling relevant books or by carrying out duties as an editor, announcer, or reporter for a newspaper, radio station, or other branch of the news media which has as its principal aim the propagation of that belief);
Mr Green contended that the evidence established that the principal aim of the Defendant’s business is and always has been the propagation of the Christian belief. We note that the onus of proving the exception lies upon the Defendant (Section 39).
The evidence relevant to this defence is largely the evidence which is relevant to the previous submission concerning qualification for the work. It, however, involves an even more extreme view of the meaning of the Act than that contended for in relation to the qualification submissions. We thought it had some significance that both the Rev. Yule and Mr sides tended to concede in cross-examination that it could not be said that the sole or principal duties of the position of forecourt attendant involved propagation of the Christian belief. Both, however, in re-examination, qualified the evidence which they had given in cross-examination. On all the evidence given we consider it is not possible to contend that the sole or principal duties of the position of forecourt attendant involve the propagation of Christian belief. The present case is not remotely similar to the examples given in Subsection 7(b)(i). The physical services on the forecourt are those which are customary in a business such as the Defendant was conducting. At the very most there may be occasions when the forecourt attendant might be required to talk, give material to, or in some way assist a customer by referring him to a more senior employee or Mr. Sides, if it appeared that the customer needed Christian support or assistance. Nor can it be said in our view that the whole or principal duties of the position are, or are substantially the same as those of a clergyman, priest, etc. We are of the opinion that the Section cannot be given the meaning for which the defence contends.
Dr Barton stated to us that the defence was not raised until a very late stage. Mr. Green contended that it was covered by the general advice which the Defendant gave that all aspects of Section 15 were in issue. Although this was hardly adequate to alert the Plaintiff to the defence, we were not in the circumstances asked by Dr. Barton to rule that the Defendant could not raise the defence.
(iii) The final ground of defence raised by Eric Sides Motors Company Limited was that Mr. Robinson could not claim discrimination under Section 15(1) or section 32 because he considered himself to be the keen Christian person sought in the advertisement. In part we have already dealt with this in relation to the Defendant’s argument concerning Section 32. Insofar as section 15(1) is concerned, it seems to us that Mr. Robinson’s religious or ethical belief is only relevant in relation to the question whether or not the Defendant discriminated against him upon that ground. Mr. Green suggested that it was simply a case of two people arguing about the practice of belief rather than about belief itself. We agree, however, with Dr.Barton’s submission that religion is a flexible concept and that it is plain from the evidence that Mr. Robinson did not meet the requirements of Mr. Sides’s definition of religious belief, i.e. regular attendance at church and a deep commitment. Whatever Mr. Robinson’s religious belief, or lack of it (if it is better described as an ethical belief in terms of the Act), it was not shared by Mr. Sides. We cannot see any validity to this aspect of the defendant’s argument.
We are therefore of the view that none of the combined defences raised by Eric Sides Motors Company Limited can be maintained. On this basis we do not need to consider whether, had those defences been maintainable, they would have afforded a defence to the breach of Section 32 of the Act which we have found to be established.
As we have previously indicated, the defences raised by the Newspapers apply equally to both Newspapers. It is therefore appropriate to consider the defences together, whilst indicating any relevant factual differences. In the case of both Newspapers the Plaintiff alleged a breach of Section 32 of the Act by publishing an advertisement which indicated a preference to employ only Christians. In answer to this allegation the Newspapers raised six defences which for convenience we again deal with in the same order as adopted by counsel.
We also record it was not disputed that the advertisements appeared in the defendant Newspapers.
(i) The first defence advanced by the Newspapers was that the advertisements on their wording did not indicate an intention either to refuse to employ or to omit to employ any person by reason of their religious belief. Mr. Dalgety contended that the advertisements express a preference to employ a Christian person, and pointed out that the advertisements did not use the words “only Christians”, although these words are used in the Notice of Proceedings filed by the Plaintiff.
We do not think it is necessary to set out the matters which Mr. Dalgety advanced as indicating that the advertisements expressed only a preference. This in fact is accepted by the Plaintiff, and the alleged breach is specifically stated in those terms. We have already stated our reasons for considering that it is not material whether the advertisement indicated an intention to employ Christians only or merely an intention to give preference to Christians (see defence (b)(ii) of Eric Sides Motors Company Limited). Mr. Dalgety did not seek to make any point of the precise words used in the Notice of Intention to Bring Proceedings, in which regard we would in any event be prepared to apply the provisions of Section 51 of the Act.
Having contended that the advertisements only indicated a preference to employ Christians, Mr. Dalgety submitted that the Act does not specifically say it is unlawful for an employer to take religious or ethical belief into account when employing someone. He said that if Parliament had intended such to be the position it could have said so. He further submitted that an Act which rendered conduct unlawful should be construed strictly, and that it would be artificial and a questionable practice for an employer to be compelled to ignore this obvious commonsense preference and seek for some contrived reason to appoint a person.
In our view, however, these arguments all overlook that the words used in Section 15 are “by reason of”. We have previously referred to the interpretation of those words in the Australian decision in the General Motors Holden case. If “by reason of” means that the religious element must be a substantial and operative factor (which we accept to be the correct test), then any person who refuses or omits to employ another by taking into account religious or ethical belief as a substantial and operative factor, is acting in breach of Section 15(1). This, in our opinion, is a simple, clear and sensible test, which is capable of being applied to all factual situations (although, as we have already found, it may involve difficult judgments of fact). We are of the opinion that the wording of the advertisements published by the Newspapers indicates or could reasonably be understood as indicating an intention to commit a breach of Section 15(1) of the Act, and that the first defence raised by the Newspapers cannot succeed. It is not necessary for us to set out all the evidence, most of which we have already referred to in dealing with the Section 32 argument advanced by Eric Sides Motors company Limited. In our opinion, on a fair and objective reading of the advertisements, they clearly contain the indication required to establish a breach of section 32.
(ii) As a second defence advanced by the Newspapers, it was contended that the meaning to be attributed to the term “Christian person” is that which the ordinary reasonable man or woman would understand by it.
This is the same argument as that advanced by Eric Sides Motors Company Limited under head (b)(ii) ante. For the reasons there given, we do not consider that this defence can succeed.
(iii) The third defence advanced by the Newspapers was that in terms of Section 15(1) it is legitimate for an employer who practises his religion in his business to specify in an advertisement that being a Christian person is a qualification for employment. This again is the same argument as that advanced by Eric Sides Motors Company Limited under head (c)(i) ante. For the reasons there given we do not consider this defence can succeed.
(iv) The fourth defence advanced by the Newspapers was that Section 15(7)(b) of the Act permits preferential treatment based on religious or ethical belief where the sole or principal duties of the position involve propagation of that belief. This again is the same argument as that advanced by Eric Sides Motors Company Limited under head (c)(ii) ante. For the reasons there given we do not consider the defence can succeed. Likewise defence (iv) and defence (iii) above do not assist the Newspapers in relation to the breach of Section 32.
(v) The fifth defence advanced by the Newspapers relied upon Section 33 which provides that it is a defence for an employer to prove that he took such steps as were reasonably practicable to prevent an employee from doing an act (in breach of the Act). This defence requires consideration of the meaning and intent of Section 33 of the Act.
When Mr.Hodder on behalf of the Plaintiff made his closing submissions, it became apparent that there was a wide divergence of view concerning the meaning of the Section. We therefore reserved leave to the parties to make further written submissions, which were duly received by the Commission. From the submissions it emerged that both the Plaintiff and the Newspapers accept (a) that Section 33, being included at the end of Part II of the Act may in appropriate cases be applied in respect of acts or omissions which give rise to proceedings under Part II, and (b) that Section 33 governs all questions relating to vicarious liability which arise in proceedings under the Act.
Thereafter, however, the parties advance very different interpretations of the Section. On behalf of the Plaintiff it was submitted that the Newspapers are in breach of Section 32 by reason of having published the advertisements in question, and that the liability is direct and not vicarious. On that basis the Plaintiff did not contend that any liability arose because of the operation of Section 33 (1), and submitted it therefore followed that Section 33 (3) is not material to the present case.
The basis of this contention arises from the Plaintiff’s analysis of Seciton 32. That section refers, inter alia, to “publish... or cause or allow to be published”. It was submitted that the proscribed activities are distinguishable one from the other; that “publishing” is not the same activity as “causing” publication or “allowing” publication; and that different persons may be liable under the Act for those different activities in respect of a particular advertisement. The Plaintiff contended that the proceedings brought against the Newspapers are based on their having “published” the advertisements, and that in such a case the relevant act is that of publication, which is an act directly attributable to the Newspapers, not their employees. The Plaintiff submitted that the fact that the Newspapers are publishers is confirmed by their statutory registration as such in compliance with the terms of the Newspapers and Printers Act 1955, and by the appearance in each issue of the newspapers of notices declaring the Newspapers to be the publishers.
In response to this submission Mr. Dalgety, on behalf of the Newspapers, submitted that in the great bulk of cases, and in the instant case what is being challenged by the Plaintiff are the acts or omissions of employees which resulted in particular advertisements being published. He contended that it is simplistic to argue otherwise, and that if the Plaintiff’s argument was accepted, the Newspapers could rely on the Section 33(3) defence if the proceedings alleged acts or omissions of employees, but not if publication simpliciter was alleged. Mr. Dalgety also contended that it followed from the Plaintiff’s arguments that all employers would be entitled to the benefit of a Section 33(3) defence where employees’ acts or omissions were in question, other than employers who were newspapers, and that if the Plaintiff’s submission is correct, newspapers could never (where publication simpliciter was alleged) establish a defence on the merits (being always left in the position of inviting the Tribunal to grant no relief because of the discretion relating to the Newspapers’ conduct given under Section 38(8).
In support of these submissions Mr. Dalgety contended that Section 33 of the Act is intended to make special statutory provision for the common law principle of vicarious liability (although going further than the common law principle). He also suggested that the applicability of the common law principles to proceedings under the Act is supported by reference to analogous common law areas in which newspaper proprietors have been held to be liable for the acts of their employees. He submitted that liability of a newspaper proprietor for libel is grounded on the fact that the editor is his servant acting within the scope of his employment, and that a newspaper proprietor is liable in a libel action not upon the ground of being the publisher, but because he is vicariously responsible for the acts of the actual publisher. Mr. Dalgety further relied on the well know decision in Tesco Supermarkets Limited v Nattrass [1971] UKHL 1; [1972] A.C. 153 as establishing a distinction between the vicarious responsibilities of corporations for the acts of their employees, and acts of employees which are treated in law as being the acts of the corporation itself. He submitted that, even if the principles relating to direct liability of corporations for the acts of their servants were to be applied to the present proceedings, the case was not one where the publication of the advertisements has been shown to be attributable directly to the newspaper companies. He suggested that the liability of the Newspapers can only be established by reference to the principles of law relating to vicarious liability of employers, as specially provided for in Section 33 of the Act.
In response to those submissions Dr. Barton contended that Mr. Dalgety’s arguments require that there be different acts (and actors) involved in the publishing of
(a) a whole newspaper, and
(b) an advertisement contained in that newspaper.
Dr. Barton suggested that the act of publishing is the end product of the acts of a large number of employees, but that no one of the employees actually publishes the advertisement. He suggested that this was the reason for the way in which Section 32 is framed, and that this results in strict liability being imposed on the publisher in relation to advertisements. He suggested that the concept of strict liability is quite understandable in the field of consumer protection, and would in the context of the Act constitute a recognition of the crucial role that wide publication of discriminatory material has in the field of human rights. Dr Barton also suggested that cases in the field of defamation can be distinguished both because those cases are usually of considerable antiquity (and not necessarily relevant to a modern statute), and in any event appear to proceed on the presumption that the proprietor is distinguishable from the publisher of a newspaper. If the proprietor is not regarded as the publisher in the common law defamation cases, then the attribution of vicarious liability is readily explicable (that situation does not in fact arise in New Zealand where the defendant proprietors are registered as publishers under the Newspapers & Printers Act 1955). Dr Barton also supported his submissions by pointing out that a different analogy with the common law assisted his contention, i.e. the practice in relation to personal injury claims of alleging an unsafe system of work for which the employer was responsible, thus avoiding any problem of fixing the employer with vicarious liability. He suggested that it was quite natural to regard the publishing of newspapers as involving a system.
Finally, Dr. Barton suggested that the liability was not, as contended by Mr. Dalgety, unreasonable or Draconian, because before any of the remedies available under the Act are available, the Plaintiff is obliged to attempt to seek a reconciliation and a settlement, and has a discretion, which must be exercised reasonably, as to which remedies it should seek. Dr Barton pointed out that in the present case the Plaintiff did not seek any monetary remedy against the Newspapers, and that Section 38(8) also remained relevant on the question of remedy.
It was our original intention to decide between the competing submissions, but on reflection we have concluded that it is unnecessary for us to do so, because we have reached the view that, even if the Section 33(1) defence is open to the Newspapers, they failed to establish in terms of Section 33(3) that they took such steps as were reasonably practicable to prevent their employees from doing the acts in question. In these circumstances we have concluded that it would be preferable to leave the interpretation of Section 33(1) open for argument in a later case should the point again arise, possibly in a somewhat different factual context. However, before we record our views concerning the steps taken by the Newspapers in relation to section 33(3), it may be helpful for future reference if we set out some preliminary comments concerning Section 33 (1).
In the first place we doubt whether reference to the Tesco case assists the argument, partly because that case dealt with criminal liability, and partly because we consider Section 33 was introduced into the Act to avoid the problems considered in the Tesco decision.
In the second place we consider that there may be some difficulties in the interpretation of Section 33. Whilst it appears that Section 33 (1) is intended to govern all questions relating to vicarious liability for employees which arise under the Act, there may be room for argument concerning the scope of the clause. We have noted that the clause does not make any specific reference to the normal civil test of acting in the course and within the scope of the employees’ duty, although perhaps that should be implied from the employer/employee relationship. The clause then makes reference to the employers’ knowledge or approval, which is presumably intended to be a different criterion from that involved in determining scope of duty. It may also be that, in the case of an employee, the employer is intended to have a wider defence than that given to an employer for his personal acts which, in terms of Section 38(8), are not excused even though the breach was unintentional or without negligence. The effect of Subsection 33(3) appears to be excuse an employer for any act of an employee (whether negligent, unintentional or otherwise) provided the employer took the reasonably practicable steps required by Section 33 (3). We have also noted that Subsection (3), as distinct from Subsections (1) and (2) of Section 33, contains no reference to an “omission”.
The above matters have some bearing on the rival arguments advanced by Mr. Dalgety and Dr. Barton but, as we have said, we think it preferable to leave the question open for further argument in another case should that prove necessary.
As previously stated, we do not consider it necessary to reach a decision as to whether Section 33(1) is applicable in the present instance, because we have concluded that, even if this were so, the Newspapers failed to prove in terms of Section 33(3) that they took such steps as were reasonably practicable to prevent employees from doing the act.
In support of the contention that the Newspapers took such steps as were reasonably practicable, Mr. Dalgety submitted that both Newspapers set up efficient systems to prevent the publication of any advertisement which was in breach of the Act. The evidence established that both newspapers took very similar steps following the passing of the Act. Thus, for The Press, Mrs. Feely, who was the Christchurch telephone supervisor, stated that certain material was made available to her by Mr Eathorne, the classified advertising manager. This material had been misplaced by the time of the hearing, but was apparently taken from two memoranda sent to newspapers by the Newspaper Publishers Association of New Zealand Inc. and the New Zealand Employers Federation. The actual memoranda were produced by Mr. Eathorne when he gave his evidence. He also stated that, when the Act came into force, he had explained the provisions of the Act to staff. Specifically in relation to telephone advertisements, he confirmed that he had extracted sections of material from the memoranda and given them to Mrs. Feely, and that he had discussed the material with her. She was then responsible for informing the telephonists of the provisions of the Act. She also checked all advertisements and was regarded as a long term, experienced, capable and reliable employee. She was informed that if she was in doubt about the application of the Act to an advertisement, she was to refer the matter to Mr. Eathorne for decision. He in turn, if in doubt, could refer the matter to the advertising manager, the editor, or the general manager. At that level a legal opinion could also be sought if there was doubt. He said that his paper had adopted a cautious attitude towards advertisements, even to the extent of offending advertising customers. He also produced a further bulletin from the Newspapers Publishers Association and sample copies of The press which gave effect to the recommendation made in the bulletin (concerning publication of regular advertisements drawing the attention of advertisers to the requirements of the Act.)
Witnesses from The Star stated that their Newspaper had taken very similar steps. The Star’s advertising manager deposed that, following the passing of the Act, notices were given to the staff. These consisted of memoranda to the classified staff and staff in the composing rooms (including the chief reader). These memoranda were issued on the 29th March. Further, memoranda were later distributed, these being dated 31st
August 1978. Mr. Blake stated that staff in the classified advertisements department had authority to make decisions to delete or alter material which was discriminatory in terms of the Act. In the event of there being a problem the first point of reference was to Mr. Greer or Mr. Simpson, both of whom were responsible to Mr. Blake. Mr. Blake pointed out that, like The Press, The Star had many queries, and received criticism from customers during the early days of the Act.
The Star also called as a witness Mr. Fortune, who gave evidence concerning the publication of the actual advertisements. Unlike Mrs. Feely in the case of The Press, who briefly considered the advertisement submitted by Eric Sides Motors Company Limited and decided that it did not offend the Act, Mr Atridge, who received the advertisement at The Star, referred the advertisement to Mr. Fortune and Mr. Greer. The three employees had a discussion as to whether the word “Christian” should be deleted, and eventually Mr. Greer determined that it should. Mr. Fortune did not agree with the decision. Early in the following week Mr. Sides came to The Star’s office seeking an explanation as to why the word “Christian” had been deleted, and pointed out that the advertisement had been published by The Press. Mr. Greer, Mr. Atridge, and Mr. Fortune then had a further discussion, after which they decided to publish the advertisement of 7th March.
The question which we must determine is whether or not the steps taken by the Newspapers were “such steps as were reasonably practicable”. The Newspapers are not in this context to be held responsible for the actual decisions made by employees, and we therefore do not comment further concerning these. As far as the chain of reference in both papers is concerned, it seems to us that this was an adequate and practicable procedure (and Mr. Downey conceded this in cross-examination). The problem area for the Newspapers, however, arises in our view in relation to the information which was given to staff members. It appears clear from the language of Section 33 (3) that the relevant act or acts refer to the publishing of an advertisement indicating an intention to breach those parts of the Act prohibiting (inter alia) discrimination by reason of religious or ethical belief. The practical steps must therefore be related to that form of discrimination. Close examination of the documents produced reveals that virtually no guidance (apart from merely reciting some of the provisions of the Act) was given to staff in relation to the question of religious or ethical belief. The material given to staff, for example, did not, as far as we can see, refer to or elaborate upon the definition of ethical belief given in Section 2 of the Act. Again, although the material in the case of both papers provided useful guidelines in relation to sex discrimination, nothing similar was done in relation to religious discrimination. The concept of religious or ethical belief is obviously one of some complexity, and indeed of greater complexity than sex discrimination. Yet the material gave no examples of the kind of advertisements which might raise questions of discrimination by reason of religious or ethical belief (although this had been done in the simpler case of sex discrimination). There appears not even to have been a warning that advertisements which might raise questions of discrimination by reason of religious or ethical belief could well involve issues of some complexity. In sum the situation simply was that no guidance was given to employees on this question, nor was there any evidence of later or continued efforts to alert employees to the possible problems.
In the above circumstances we are of the opinion that the Newspapers did not take such steps as were reasonably practicable, and have not satisfied the onus placed upon them to prove that they did so.
(vi) The sixth and final defence advanced by the Newspapers was that the proceedings in their original form were issued against “The Press” and “The Christchurch Star”, which are not legal persons. We have already referred to this aspect and to the Plaintiff’s applications for amendment which granted.
(a) Damages
The Plaintiff did not seek any damages against the Newspapers. In the proceedings against Eric sides Motors Company Limited, the Plaintiff claimed Mr. Robinson’s loss of wages, together with a sum in respect of humiliation, loss of dignity, and injury to Mr. Robinson’s feelings. In view, however, of our decision that there was no breach of Section 15 (1), we consider that damages should not be awarded in terms of Section 40 of the Act.
(b) Declarations
The Plaintiff sought declarations against all three Defendants that each had committed a breach of Section 32 of the Act.
In view of our decision that there was a breach of Section we make declarations which are as follow:
(i) A declaration under Section 38(6)(a) of the Act that Eric Sides Motors Company Limited has committed a breach of Section 32 of the Act by causing to be published an advertisement which indicated a preference to employ only Christians.
(ii) A declaration under Section 38(6)(a) of the Act that New Zealand Newspapers Limited has committed a breach of Section 32 of the Act by publishing an advertisement which indicated a preference to employ only Christians.
(iii)A declaration under Section 38(6)(a) of the
Act that Christchurch Press Company Limited has committed a breach of Section 32 of the Act by publishing an advertisement which indicated a preference to employ only Christians.
(c) Restraining Orders
The Plaintiff sought restraining orders against both Eric Sides Motors Company Limited and Newspapers. It is desirable to deal with these applications separately.
Insofar as Eric Sides Motors Company Limited is concerned, Mr. Sides has on repeated occasions asserted the right to advertise in the way in which he thinks fit, although in the hearing before us he stopped short of saying that he would not abide by any rulings relating to the law made by the Tribunal or the High Court on an appeal. Although we do not doubt Mr. Sides’ integrity, we are conscious that this is a matter in which feelings have run at a high level. We have concluded that it is best for us to make the position explicitly clear, and we therefore propose to make a restraining order against Eric Sides Motors Company Limited in the following terms:
An order under Section 38(6)(b) of the Act restraining Eric Sides Motors Company Limited from causing or allowing to be published or displayed an advertisement or notice which indicates, or could reasonably be understood as indicating, a preference to employ only Christians or that a position of employment is available only to Christians.
In the case of the Newspapers, Dr Barton referred us to authorities indicating that in other jurisdictions restraining orders are readily made against newspapers. However, witnesses for both The Star and The Press explicitly stated that it was the policy of their Newspapers to abide by the law, and that they have every intention and wish to do so. Although we have held that the Newspapers did not take such steps as were reasonably practicable to prevent employees from breaching the Act, we consider that the Newspapers, both at the hearing and in their actions subsequent to the passing of the Act, have clearly demonstrated willingness to endeavour to comply with the Act. We therefore do not propose to make restraining orders in the case of the Newspapers.
Newspapers generally should appreciate that the Tribunal will not be reluctant to make restraining orders where there is evidence of any unwillingness or failure to comply with the requirements of the Act. On the other hand, Newspapers are entitled to expect from the Plaintiff assistance and guidance. While it may not be possible for the Plaintiff to bind itself in advance of receipt of a complaint, the Plaintiff has very important educational and conciliatory roles in terms of the Act. Such indications as we have seen are that the Plaintiff has endeavoured to fulfil those roles, and has only brought before the Tribunal cases which are unable to be resolved in any other way. During the course of these proceedings it was stated on behalf of the Chief Human Rights Commissioner that the Plaintiff wishes to give all possible assistance to Newspapers in relation to any problems concerning advertising. We see good reason for this to be done and have noted from the material supplied by the Plaintiff that this is also done by the United Kingdom Equal Opportunities Commission.
(d) Costs
It was contended by the Defendants that, even if they were found in breach of the Act, costs should not be awarded against them. It was suggested that the matters in issue were difficult, and that the proceedings should be viewed I the nature of a test case, as happened in relation to the earlier discovery hearing in respect of which the Plaintiff did not seek costs. Mr. Dalgety also urged upon us that these proceedings were almost inevitable, and that the issue was one which had to be resolved, with neither side being blameworthy in that respect.
We have, however, previously indicated that we take the view that costs should normally follow the outcome. In the present case we see no reason for departing from that view. Indeed, we think that there are strong reasons for awarding costs against the Defendants. The Star explicitly invited the plaintiff to commence proceedings. Mr Sides, on behalf of his Company, whilst indicating at one stage to the Chief Human Rights Commissioner that he was no seeking a Court case, virtually challenged the Plaintiff to issue proceedings. The attitude of The Press was probably less forthright than the other Defendants, but it also appears to have been not unwilling to litigate the issues. In addition, each Defendant canvassed every possible defence and, once proceedings were issued, elected to put the Plaintiff to the proof of almost ever issue (which caused the Plaintiff to place on record its intention to seek costs.)
Bearing in mind the length of the hearing, and the need for the preliminary meeting as to issues, we consider that each Defendant should pay the Plaintiff the sum of $900.00 for costs. In fixing that figure we have taken into account in the Defendant’s favour that there could possibly be said to be some elements of a test case in the present proceedings which may have protracted the time taken. We also consider that the Defendants should pay equally between them the reasonable expenses of travel and accommodation of witnesses and counsel for the Plaintiff up to a maximum of $1,500 in total. If these expenses cannot be fixed by agreement the parties should submit Memoranda to the Tribunal so that the expenses can be determined.
Dated this 15th day of April 1981
J.H. Wallace Q.C. – Chariman
V.M. Boyd – Member
L.A. Cameron - Member
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZEOT/1980/4.html