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Howard v Attorney-General [2008] NZHRRT 10 (15 May 2008)

Last Updated: 30 May 2008

Decision No. 10/08

Reference No. HRRT 15/06

BETWEEN JOHN HOWARD

Plaintiff

AND THE ATTORNEY-GENERAL

Defendant

BEFORE THE HUMAN RIGHTS REVIEW TRIBUNAL

Mr R D C Hindle Chairperson
Ms J Grant MNZM Member
Ms D A Clapshaw Member

HEARING: 6 & 7 December 2007 (Wellington)

APPEARANCES:

Mr J Howard, plaintiff in person
Ms M Coleman & Ms M Silverwood for the defendant

DATE OF DECISION: 15 May 2008

DECISION NO.3

(Substantive Issues)

Introduction

[1] The plaintiff has applied to the Tribunal for a declaration that cl.52 of the First Schedule to the Injury Prevention, Rehabilitation, and Compensation Act 2001 (‘IPRCA’ or ‘the ACC legislation’) is inconsistent with the right to freedom from discrimination affirmed by s.19 of the New Zealand Bill of Rights Act 1990 (‘NZBORA’). In their essentials, the effect of the relevant provisions of IPRCA are that eligibility for support by way of vocational rehabilitation after personal injury has been suffered is more restricted for those who are near 65 and older, than it is for younger people.

[2] The defendant (whom we will refer to as ‘the Crown’) opposes the application.

[3] The matter has some significance, not least because it is the first time that a claim under Part 1A of the Human Rights Act 1993 (‘the HRA’) has reached the stage of a hearing on the substantive issues. Inevitably the matter has raised issues that are novel and, at points, complex.

[4] The plaintiff was not represented by counsel. That is not a criticism; to the contrary, we regard the case as exemplifying the very thing was intended by Parliament when Part 1A was introduced to the HRA by the Human Rights Amendment Act 2001, and the power to make declarations of inconsistency was given to a Tribunal so as to be accessible to lay litigants: see (for example) s.92C(1)(a) of the HRA. The reality, however, is that although the plaintiff demonstrated a level of familiarity with some aspects of constitutional law, he did not have the expertise to be able to engage with all of the arguments put forward by the Crown in an effective way.

[5] Without intending any disrespect to him (or to Crown counsel, for that matter), we think there are dangers in trying to resolve novel and complex issues in a situation in which there has in effect been argument on one side only. Thus although we have recorded and commented on the significant arguments that we heard, ultimately we have tried to identify and determine only those issues that need to be determined in order to dispose of the case.

[6] This decision is organised as follows:

[7] There is one final preliminary note. The plaintiff does not suggest that there is anything unlawful about the New Zealand Superannuation Qualifying Age of 65 or the fact that, broadly speaking, recipients of weekly compensation under the ACC legislation are no longer entitled to weekly compensation after that age. Instead the focus of the claim is the limited availability of support for vocational rehabilitation at and after age 65.

[8] As will be seen, however, the rationale for the rules that presently govern vocational rehabilitation is closely related to the policy that (again, broadly speaking) entitlement to weekly compensation is replaced with the entitlement to superannuation at age 65. As a result some discussion about the reasons why weekly compensation is replaced with superannuation at age 65 is inevitable. Nonetheless we think it important to repeat that our task in this case is to look at the effect of those policies only insofar as they have a bearing on the situation regarding the availability of vocational rehabilitation.

Background

[9] The plaintiff injured his hand in 1989 and later developed carpal tunnel syndrome in his arm. At the time of his injury he was in work. As a result he was entitled to weekly compensation under IPRCA and its predecessor statutes. He was also entitled to expect support in the form of vocational rehabilitation.

[10] Vocational rehabilitation is a label for a set of initiatives that the Accident Compensation Corporation (‘the ACC’) can provide or support, and which are designed to assist claimants to regain or move towards vocational independence - for example, to return to full employment. It is necessary to deal with the situation of claimants who are over 63 years of age in more detail below but, putting that group aside, the ACC must provide vocational rehabilitation where a person has suffered personal injury and is entitled to weekly compensation. Vocational rehabilitation might take the form of supporting a claimant and his or her employer with a gradual return to work, providing training or re-training, workplace assessments, monitored work trials, job search assistance, and the like.

[11] During various periods between the date of the plaintiff’s injury and mid-2003 the ACC paid the plaintiff weekly compensation. But the relationship between the plaintiff and the ACC has not been without difficulties. In June 2003 the ACC suspended all weekly payments because the plaintiff had failed to provide it with a statutory declaration that was required. Some sense of the difficulties that developed between the ACC and the plaintiff can be discerned from the decisions in Howard v Accident Compensation Corporation (Decision 121/2005, District Court, Wellington, 13 April 2005 per Judge Ongley), Howard v Accident Compensation Corporation (Decision 154/2005, District Court, Blenheim, 13 May 2005 per Judge Barber) and Howard v Accident Compensation Corporation (Decision 8/2006, District Court, Wellington, 17 January 2006 per Judge Cadenhead).

[12] The details of the arguments do not matter for present purposes, but as a result of those disputes there is a particular aspect of this case which needs be noted. The plaintiff reached the age of 65 on 10 November 2004. However, although he was eligible for weekly compensation (and therefore also vocational rehabilitation) up to that point, in fact he had not actually been paid any weekly compensation, nor had he received any vocational rehabilitation support, for a period of about 18 months before then. Our impression of the evidence we heard was that the plaintiff could have provided the information required by ACC, and thus achieved a resumption of actual payments, but because he regarded the ACC’s expectations to be unjustified he declined to do so - notwithstanding the income and other benefits he was foregoing as a result. The more significant point from our perspective, however, is that at all times up to his 65th birthday the plaintiff’s entitlement to weekly compensation (and thus to be able access vocational rehabilitation) might have been converted into actual payments and other support if only the plaintiff had provided the information required by ACC, and the disputes had been resolved.

[13] When the plaintiff turned 65 on 10 November 2004 his entitlement to weekly compensation ended, and was replaced with an entitlement to receive New Zealand superannuation. We will set out the legislative basis for that below, but it is important to repeat that the plaintiff makes no complaint about the fact that his entitlement to weekly compensation ended at his 65th birthday. His concerns in this litigation are now limited to the fact that, because entitlement to vocational rehabilitation is linked to weekly compensation, it too came to an end on his 65th birthday.

[14] For completeness, we add that the plaintiff and the ACC later entered into a settlement of their disputes related to weekly compensation. However in October 2007 the plaintiff filed a new claim in this Tribunal against the ACC in which he seeks (amongst other things) to challenge the effect of the settlement. (We mention these matters only because there is some overlap in the materials put forward in that new claim and the issues that were raised when this proceeding was first filed. Furthermore our decision in respect of the ACC’s application to have the new claims against it struck out will be issued at the same time as this decision: see Howard v Accident Compensation Corporation [2008] NZHRRT 11. That said, there is nothing in those proceedings that is relevant for present purposes.)

[15] This claim was filed in the Tribunal in June 2006. On 11 December 2006 the Tribunal issued a decision striking out aspects of the claim, but confirming that the plaintiff was entitled to proceed with his argument that the provisions which remove eligibility for vocational rehabilitation after age 65 are inconsistent with the right to freedom from discrimination that is affirmed by NZBORA: see Howard v Attorney-General [2006] NZHRRT 46. The matter was then prepared for hearing. Shortly before the hearing was scheduled to begin the Crown made an application for adjournment on the basis that draft legislation had been introduced to Parliament which, if enacted, would effectively remove the concerns asserted by the plaintiff in this litigation. The application for adjournment was declined: see Howard v Attorney-General (No.2) [2007] NZHRRT 24.

[16] The essence of the unresolved claim by the plaintiff in this proceeding is that, because eligibility for vocational rehabilitation is linked to eligibility for weekly compensation (and so ends when eligibility for weekly compensation ends at or about 65 years of age), cl.52 of the First Schedule to IPRCA is inconsistent with the right to freedom from discrimination affirmed by NZBORA (we will refer to cl.52 of the First Schedule to IPRCA simply as ‘cl.52’ in this decision). The ground of prohibited discrimination that is relevant is age – see s. 21(1)(i) of the HRA. The plaintiff does not accept that the discrimination he asserts falls within any reasonable limit on the right to freedom from discrimination as can be demonstrably justified in a free and democratic society (see s.5 NZBORA). In the circumstances we are asked to make a declaration under s.92J(2) of the HRA to the effect that cl.52 is inconsistent with the right to freedom from discrimination affirmed by s.19 NZBORA (the plaintiff accepts that because this proceeding is now limited to a claim under Part 1A of the HRA, and since it is brought in relation to an enactment, the only remedy that the Tribunal might be able to give is a declaration of inconsistency under s.92J(2)).

[17] At case management conferences held in advance of the hearing the Crown accepted that the subject legislation was ‘prima facie’ discriminatory. It was made clear that its defence would be that restrictions on the availability of vocational rehabilitation are within a reasonable limit on the right to freedom from discrimination by reason of age. On that basis the Crown agreed to prepare and file its evidence before the plaintiff did so. When the Crown opened its case at the hearing, however, we were informed that the issue of whether or not there is any ‘prima facie’ discrimination was to be pursued after all. Had the plaintiff been represented by counsel we have no doubt that there would have been an objection. In the end result, we do not think there has been any procedural disadvantage to the plaintiff. But the way in which this particular aspect of the case unfolded was unfortunate, and if nothing else demonstrates the desirability – even in the rather more informal environment of Tribunal proceedings – of preparing a pre-hearing statement of the issues for determination. In any event, the Crown’s position at the hearing was that:

• [a] The plaintiff had failed establish any relevant disadvantage arising out of the way in which the legislation in question applies, so that there was (and is) no discrimination of an unlawful kind to be concerned about;
  
• [b] In the alternative, if an issue of unlawful discrimination were to be identified, nonetheless restrictions on the availability of vocational rehabilitation are within a reasonable limit on the right to freedom from discrimination;
  
• [c] Even if the Tribunal were to be persuaded that discrimination exists, and that it is not within a reasonable limit on the right to freedom from discrimination, the Tribunal ought not to exercise its discretion to make a declaration of inconsistency in any event since the underlying issue is already before Parliament for re-consideration (this submission refers to the introduction to the House on 22 November 2007 of the Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No.2)).
  

The relevant legislation

[18] It is convenient to discuss the relevant legislation at this point. We start with IPRCA.

[19] Section 85 IPRCA obliges the ACC to provide vocational rehabilitation to any claimant who has suffered personal injury by accident and who is entitled to weekly compensation. (There are two other situations in which vocational rehabilitation must be provided as well, but they do not matter for present purposes). Section 100 IPRCA then sets out circumstances in which a claimant is entitled to receive weekly compensation. Again, the details do not matter because the Crown has not suggested that the plaintiff in this case was not entitled to receive weekly compensation up to his 65th birthday (even though as noted he was not actually receiving weekly compensation in the period before his 65th birthday).

[20] In practical terms, the right to receive weekly compensation depends on an assessment of ‘vocational independence’, i.e., whether the claimant is able to engage in work for which he or she is suited by reason of experience, and/or education and/or training. For reasons which become important later in this decision, it needs be emphasised that ‘entitlement’ to vocational rehabilitation really means that a person is liable to be assessed to see whether and to what extent vocational rehabilitation initiatives might be indicated in the particular case: see ss.107 to 112 IPRCA. The nature and extent of any assistance that is later given will of course depend on the assessment.

[21] The ACC has an obvious interest in seeing that those who have been injured return to or make progress towards vocational independence, having regard to the nature of the incapacity concerned. The same is of course true of what was referred to at the hearing as ‘treatment’ rehabilitation (which comprises rehabilitative treatment to restore health, independence and participation in society to the extent possible having regard to the nature of the injury suffered) and social rehabilitation (which comprises support such as the provision of aids and appliances, home alteration and home help, to enable the injured person to return to health, independence and participation in society).

[22] Eligibility for treatment and social rehabilitation is not limited by age. In contrast, eligibility for vocational rehabilitation is limited by age because it is linked to weekly compensation. The age limits on eligibility for weekly compensation are set out in cl.52.

[23] There was considerable disagreement between the plaintiff and the Crown during the hearing (and also in memoranda filed after the hearing to address this particular point) as to what the effect of cl.52 really is. The difficulties relate to the transitional provisions of sub-clauses (3) to (8) which deal with the situation of those who suffer an incapacitating injury after their 63rd birthday; i.e. within two years of turning 65. The Crown’s analysis of the effect of cl.52 is that:

• [a] For someone who has been entitled to receive weekly compensation during the two year period before turning 65, eligibility for weekly compensation (and, as a result, vocational rehabilitation) lasts until age 65 and then ends (see cl.52(1) and cl.52(2));
  
• [b] For those who suffer the relevant injury after their 63rd birthday but before their 64th birthday and who become and remain entitled to receive weekly compensation thereafter, there is a potential entitlement to receive weekly compensation (and thus be entitled to vocational rehabilitation) for up to two years from the date of first entitlement. But, when the claimant turns 65, he or she must choose either to continue with weekly compensation (and any vocational rehabilitation) for the remainder of that two year period, or to receive superannuation instead (see cl.52(3), 52(4) and 52(5));
  
• [c] Those who suffer the relevant injury after their 64th birthday but before turning 65, and who become and then stay entitled to receive weekly compensation thereafter, are entitled to receive weekly compensation (and thus vocational rehabilitation) up to their 65th birthday. They can then receive both weekly compensation (and any vocational rehabilitation) and superannuation until age 66. After turning 66 claimants in this category must either choose to continue to receive weekly compensation (and thus any vocational rehabilitation) for another 12 months until the age of 67, or superannuation, but they cannot have both. After age 67 the eligibility to weekly compensation (and thus vocational rehabilitation) ends, and is replaced by superannuation only (see cl. 52(6)(a), 52(7)(a) and (8));
  
• [d] Those who suffer the relevant injury and thus become and remain entitled to weekly compensation (and therefore vocational rehabilitation) after the age of 65, are entitled to weekly compensation (and thus vocational rehabilitation) for up to one year after first becoming entitled, and can also choose to receive weekly compensation (and vocational rehabilitation) instead of superannuation for a further period of one year afterwards (see cl. 52(6(b), 52(7)(b) and (8)).
  

[24] Of course the impact of all of these provisions will vary from case to case. The level of weekly compensation payable under the ACC legislation in individual cases is linked to pre-injury earnings, so different people will likely make different choices about whether they are better off to stay with weekly compensation, or whether they should move to superannuation as soon as possible.

[25] The plaintiff disagreed with the Crown’s analysis of cl.52. We confess that we were unable to follow his submissions on this point. We accept the Crown’s summary as to the effect of cl.52. But we add that in any event the whole debate about the exact meaning of the ‘transitional’ provisions of cl.52 did not seem to us to warrant all the attention it was given by the plaintiff. In the plaintiff’s particular case, it is clear that he had been entitled to weekly compensation for over two years before turning 65, and so was not entitled to weekly compensation or vocational rehabilitation afterwards. The only other purpose of analysing the details of cl.52 is to see if they shed any light on issues of whether there was discrimination, and if so whether it was justified. We think it suffices for that purpose to note that after anyone turns 63, restrictions on the availability of vocational rehabilitation begin to apply, and that if one is injured after age 65 then the longest period for which weekly compensation (and so vocational rehabilitation) might be available is two years.

[26] We add one further point before turning to other relevant legislation. Clause 52 became something of a focal point in argument during the hearing and in submissions. It is that provision which the plaintiff has asked us to declare to be inconsistent with his NZBORA rights. But cl.52 says nothing at all about vocational rehabilitation. Clause 52 sets out the relationship between weekly compensation and the New Zealand superannuation qualifying age of 65. And, as already emphasised, the plaintiff did not challenge the fact that there are age limits on eligibility for weekly compensation.

[27] The provision that engrafts the weekly compensation eligibility restrictions onto eligibility for vocational rehabilitation is actually s.85 IPRCA. The difference between cl.52 and s.85 IPRCA may not matter much for the purposes of considering the underlying point that the plaintiff sought to advance, but it becomes significant when it comes to settling the terms on which any declaration of inconsistency ought be made (we add that the Crown’s submissions were appropriately expressed throughout in terms of a combination of s.85 and cl.52).

[28] Putting that detail aside, the plaintiff’s claim then refers to s.19(1) NZBORA, which provides:

“Everyone has the right to freedom from discrimination on the grounds of discrimination set out in the Human Rights Act 1993.”

[29] The grounds on which discrimination is prohibited under the HRA are set out at s.21(1), and include:

“age, which means,—

(i) for the purposes of sections 22 to 41 and section 70 of this Act and in relation to any different treatment based on age that occurs in the period beginning with the 1st day of February 1994 and ending with the close of the 31st day of January 1999, any age commencing with the age of 16 years and ending with the date on which persons of the age of the person whose age is in issue qualify for national superannuation [under section 7 of the [New Zealand Superannuation and Retirement Income Act 2001]] (irrespective of whether or not the particular person qualifies for national superannuation at that age or any other age):

(ii) for the purposes of sections 22 to 41 and section 70 of this Act and in relation to any different treatment based on age that occurs on or after the 1st day of February 1999, any age commencing with the age of 16 years:

(iii) for the purposes of any other provision of Part 2 of this Act, any age commencing with the age of 16 years:”

[30] As already noted, the claim is brought under Part 1A of the HRA in connection with what is alleged to be an act of discrimination by Government. The challenged legislation is an act of the legislative branch of the Government of New Zealand within s.20J(1)(a) of the HRA.

[31] The next provision of importance is s.5 NZBORA which provides:

“Subject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”

[32] Section 4 NZBORA directs that, in relation to enactments, no court is to hold that any provision has been impliedly repealed or is invalid, or to refuse to apply the provision, by reason only that the provision under scrutiny is inconsistent with NZBORA. Much the same restriction is repeated in respect of proceedings in this Tribunal under Part 1A by s.92K of the HRA.

[33] The inter-action between ss.4, 5 and 6 of NZBORA has given rise to a great deal of judicial and academic discussion. Various methodologies for application of these sections have been articulated (see e.g., R v Hansen [2007] NZSC 7; [2007] 3 NZLR 1 and R v Film & Literature Board of Review (Moonen (No.1)) [2000] NZLR 9). As a result, and although it may seem obvious, it is worth stating that the case before us is not a case about statutory interpretation.

[34] Of course it can be an answer to a Part 1A claim to say that the legislation at issue can (and under s.6 NZBORA, must) be interpreted so as not to infringe the anti-discrimination rights of s.19 NZBORA. We have also noted that there are differences between the Crown and the plaintiff as to what some of the provisions of s.85 and cl.52 really mean. But even so, it was no part of the Crown’s argument in this case to say that there is an interpretation of either or both of s.85 and/or cl.52 that would, if adopted, answer the plaintiff’s application. Indeed neither s.4 nor s.6 NZBORA were mentioned in argument in this case at all, save perhaps in passing. It was accepted that it is our task to examine the policy that underpins the challenged legislation, and to do so on its merits.

[35] In these respects, the focus of a ‘declaration of inconsistency’ application brought to this Tribunal under ss.94, 92B and 92J of the HRA is capable of being rather different from that which might be undertaken by the courts of general jurisdiction. As Miller, J said in Attorney-General v Human Rights Review Tribunal & Child Poverty Action Group [2006] NZHC 1661; (2006) 18 PRNZ 295:

“It is true that CPAG’s claim is essentially political in nature and ultimately can be resolved only by political means; it must be balanced against other claims on the public purse, resolution of which is the province of politicians, who are accountable to the electorate for such decisions, and the legislature has provided that the only remedy available before the Tribunal is a declaration of inconsistency. Further, the proposition that the Courts have no business adjudicating upon claims that have serious resource allocation implications has a very respectable pedigree. The proposition was eloquently framed by Professor J A G Griffith in The Political Constitution (1979) 42 MLR 1. He contended that such claims reflect social conflict over resources that can only be resolved by political means; to address them in litigation is to disguise them as questions of law, and as unqualified rights that a Court may remedy, when in reality they are merely claims upon the community.

“By admitting claims of discrimination in respect of enactments, however, Parliament has made available a cause of action and a forum in which such claims may be publicised and to some degree vindicated, if not actually remedied. Armed with a declaration, the plaintiff may press its case for a remedy in the community and in the legislature. In other words, the legislation manifestly admits claims having a political purpose.”

[36] Turning to a slightly different point, we note that the Tribunal’s jurisdiction is often referred to as a ‘declaration of inconsistency’ power, embodying the idea of inconsistency with the right to freedom from discrimination as affirmed by s. 19 NZBORA. That reflects the terms of s.92J(2) of the HRA. Strictly speaking, however, the threshold for the making of such a declaration is a finding that an enactment is in breach of Part 1A: see s.92J(1) of the HRA. The requirements for a breach of Part 1A are set out at s.20L. Section 20L(1) also refers to inconsistency with s.19 NZBORA, but then s.20L(2) goes on to make it clear that:

“ ... an act or omission is inconsistent with section 19 of the New Zealand Bill of Rights Act 1990 if the act or omission—

(a) limits the right to freedom from discrimination affirmed by that section; and

(b) is not, under section 5 of the New Zealand Bill of Rights Act 1990, a justified limitation on that right.” (the emphasis is ours)

[37] For the purposes of proceedings in this Tribunal, s.20L(2) seems to us to answer the debate that took place in R v Hansen (supra) as to whether it is enough that there is an inconsistency with the right that is protected, or whether the assessment needs be made as against the right as it is limited by the operation of s. 5 NZBORA. In this Tribunal, there can be no breach of Part 1A - and, therefore, no declaration of inconsistency under s.92J(2) of the HRA - until the assessment of inconsistency has evaluated both the right and any justified limitations under s.5 NZBORA.

[38] Finally under this heading, s.92F(1) of the HRA makes it clear that the Crown carries the onus of establishing that s.85 and cl.52 IPRCA fall within a justified limit on the right to be free from discrimination as affirmed by s.19 NZBORA.

Is there any discrimination?

[39] In this part of our decision we discuss arguments that were put forward by the Crown to suggest that there is nothing unlawfully discriminatory in s.85 and cl.52 IPRCA, and so there is no need to embark on a consideration of the issue of justification at all.

[40] Discrimination defies precise definition. Amongst other things, there is an important discussion as to whether the word as it appears in NZBORA was intended by Parliament to include a notion of something that is invidious (see, for example, Rishworth et al, The New Zealand Bill of Rights, OUP (2003) at pp.375 to 376), or whether it really only means ‘to differentiate’ on one or more of the prohibited grounds, with the assessment of what should be regarded as ‘acceptable’ discrimination being left for evaluation in the application of s.5 NZBORA (see, for example, Butler & Butler, The New Zealand Bill of Rights – A Commentary, LexisNexis (2005) at para 17.9.40). The topic is not new, nor is it unique to the New Zealand legislation – see, for example, observations of the Supreme Court of Canada in Andrews v Law Society of British Columbia [1989] 1 RSC 143, at page 161. But whether or to what extent the Courts or this Tribunal in New Zealand can or ought to follow the Canadian solutions and methodologies (see, e.g., Law v Canada (1999) 170 DLR (4th) 1 at para [88]) are open questions.

[41] The difficulties in articulating exactly what the word ‘discrimination’ was intended to mean in s.19 NZBORA are also reflected in the differing emphases and shades of opinion that are contained in the judgments that make up the Court of Appeal’s decision in Quilter v Attorney-General [1997] NZCA 207; [1998] 1 NZLR 523: see, for further discussion, the summary in Rishworth et al (supra) at pp 377 to 380.

[42] We do not think that this is the case in which to purport to offer any hard and fast conclusions as to what the meaning of discrimination is, or as to what methodology ought be followed in the Tribunal when assessing enactments for consistency with s.19 NZBORA. Instead, and for the purposes of this case only, we adopt the same starting point as did Crown counsel in their submissions, namely the observation of Tipping, J in Quilter (supra) that:

“The essence of discrimination lies in difference of treatment in comparable circumstances. For discrimination to occur one person or group of persons must be treated differently from another person or group of persons. Of course difference in treatment will not necessarily amount to discrimination; and not all discrimination will be unlawful.” (at p.573).

[43] Aside from a comparison, it is unarguable that the context of any alleged discrimination is vitally significant. This is not a controversial point, and many references could be given in support. We think it enough to refer to the judgement of Thomas, J in Quilter:

“... [b]y its very nature discrimination must have a context and it is that context that will determine whether or not a distinction or apparent disadvantage is prohibited discrimination.” (at p.532).

[44] Crown counsel accepted that in this case s.85 and cl.52 give rise to differential treatment (i.e., as between those who are eligible for vocational rehabilitation and those who are not) by reason of a prohibited ground of discrimination (i.e., age). But they submitted that before there can be what Tipping, J described in Quilter as a ‘prima facie’ case of discrimination, a third element must be present as well – i.e. that the difference in treatment must have given rise to some relevant and sufficient disadvantage.

[45] The idea that discrimination involves something that is disadvantageous to the subject or subjects of the alleged discrimination is not controversial. But the question of what kind of disadvantage is required is a rather more difficult issue.

[46] Crown counsel submitted that for discrimination of the kind contemplated by s.19 NZBORA to exist, the disadvantage suffered by the subject(s) of it must be one of substance, not form. It is not, they submitted, enough for a plaintiff to point to the fact that the legislative provision under challenge denies a benefit to a particular group. Instead the search for substantive disadvantage requires an analysis of the circumstances of the individual or group as well as the social, political and legal context within which the distinction has been made. All in all, we think it fair to say that the approach to discrimination advanced for the defendant in this case aligns rather more closely the views articulated by Professor Rishworth et al, than it does to the approach preferred by the Butlers (see para [40] above).

[47] The Crown’s submissions about the need to show relevant and sufficient disadvantage were made on a platform of authorities decided under the Canadian Charter of Rights and Freedoms including Andrews v Law Society of British Columbia (supra), R v Turpin [1989] 1 SCR 1296, Gosselin v Quebec [2002] 4 SCR 429 and Egan v Canada (1995) 124 DLR (4th) 609. As to what might constitute ‘substantive disadvantage’ Counsel referred in particular to Law v Canada (supra) and the possibility that there might have been a denial of human dignity in some way – perhaps by historical disadvantage, stereo-typing, or political or social prejudice.

[48] We were invited to approach the New Zealand legislation in the same way. As Crown counsel put it: “Governments [which we take to mean, New Zealand Governments] should not be required to justify distinctions that do not conflict with the purpose of s. 19 NZBORA.” Certainly the Crown’s effort to establish a methodology for the analysis of these kinds of Part 1A cases, which leaves open the possibility that at least some cases might be able to be curtailed before having to engage in any exercise of justification, is understandable at a pragmatic level. If an allegation of discrimination has to be defended on the basis that it is justified under s.5 NZBORA, there is inevitably a potential for the Crown to have to produce extensive and potentially costly evidence about matters of legislative history, social policy, economics and the like.

[49] Of course the Canadian cases are informed by the wording of the Canadian Charter of Rights and Freedoms, which is not the same as NZBORA. This is not just a question of the special status that the Charter has within the Canadian legal system, but also has to do with the way in which issues of discrimination and equality of opportunity are dealt with in the texts of each of the Charter and NZBORA.

[50] Furthermore, even accepting that there are passages in the decisions to which we were referred that support the Crown’s argument that it is necessary to show ‘substantive’ disadvantage before there is any discrimination, there are other passages in the same decisions which make it clear that discussion about disadvantage ought to be approached in the context of laws that are designed for the protection of human dignity. So, for example, in Law v Canada (supra) Iacobucci J said:

“Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of individuals, taking into account the context underlying their differences. Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. Human dignity within the meaning of the equality guarantee [of s.15(1) of the Charter] does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimately feels when confronted with a particular law. Does the law treat him or her unfairly, taking into account all circumstances regarding the individuals affected and excluded by the law?” (at para [53]).

[51] This case demonstrates that is exactly how the plaintiff feels about the effect of s.85 and cl.52 – i.e., that the law treats him (and others like him) unfairly because it assumes that those who are at or over age 65 do not have the same needs for vocational rehabilitation as do others who are younger. He sees the legislation as being based on personal traits (age) which do not relate to his individual merits.

[52] The Crown urged us to find that the plaintiff had not adduced any evidence to demonstrate that either he, or any relevant class of people, suffer the kind of disadvantage that we should regard as being sufficient to take this claim to the point of requiring the Crown to engage in a debate about s.5 NZBORA justification. But with respect we think it is a little unrealistic to say that there is no ‘disadvantage’ when it is clear that – putting aside the nuances of the transitional provisions – those who are under 65 are entitled to receive support for vocational rehabilitation, and those who are over 65 have at most a two year period of eligibility (and, in the case of someone in the plaintiff’s position, no eligibility). Furthermore, as noted in Law v Canada (supra) of cases under the Charter:

“ ... none of the foregoing discussion implies that the claimant must adduce data, or other social evidence not generally available, in order to show a violation of the claimant’s dignity or freedom. Such materials may be adduced by the parties, and may be of great assistance to a court determining whether a claimant has demonstrated that the legislation in question is discriminatory. However they are not required. A court may often, where required, determine on the basis of judicial notice and logical reasoning alone whether the impugned legislation infringes s.15(1).” (at para [77]).

[53] Although it was not quite put in this way in argument, we had a sense that the underlying point that the Crown wished to draw upon was that, because this particular plaintiff was not actually receiving weekly compensation or vocational rehabilitation when he turned 65, he did not really lose anything after his 65th birthday. There are two difficulties with that proposition. The first is that, while it is correct that the plaintiff was not actually receiving vocational rehabilitation at his 65th birthday, the reasons for that had to do with other arguments he was having with the ACC. When the plaintiff turned 65 the issues became academic, at least in respect of any payments after his 65th birthday. The underlying eligibility had been lost. We find it difficult not to categorise that as a disadvantage.

[54] The second and perhaps more important point is that, although the case has been brought by an individual who claims to have been affected, under Part 1A of the HRA it is in substance a claim about the legislation, not the individual. Even if there were no evidence of any disadvantage to the plaintiff whatsoever, that would not be a sufficient answer to the claim: see Attorney-General v Child Poverty Action Group (supra). The legislation itself makes it clear that for the group of people who are either approaching, at or over 65 years of age eligibility for vocational rehabilitation is more restricted than it is for people who are younger. Again, we find it difficult to accept that there is no disadvantage in that situation, or that any disadvantage is of a kind that we ought to regard as either insufficient for, or irrelevant to, the discrimination analysis.

[55] Our concerns about accepting the Crown’s argument on the issue of ‘substantive disadvantage’ are compounded when we consider the way in which the submission as to the lack of evidence was developed. The submission went on to say that the scheme of the legislation under challenge “ ... is predicated on the fact that as ACC was never intended to provide life-long compensation for lost earnings, there needs to be a cut-off point at which the aspects of the scheme that compensate for lack of labour force attachment no longer apply. That cut off point has been determined by empirical data, not stereotypes. Only 2% of the labour market is aged 65 or over and the highest exit rate of workers from full time employment occurs at that age.” (references to evidence that had been called by the Crown to that effect are then given). With respect, that is not really an argument about whether the class of people who, but for s.85 and cl.52, would be entitled to unrestricted eligibility for vocational rehabilitation after age 65 have suffered a disadvantage if the eligibility ends or is limited. It is an argument about whether the limitations of the eligibility at and after 65 are justified (which we deal with below).

[56] We do not intend to suggest any general propositions as to what kind of disadvantage (or, for that matter, whether any disadvantage other than the fact of differentiation on a prohibited ground) is needed to establish that there is ‘discrimination’ within the meaning of s.19 NZBORA. Our only conclusion is that - if and to the extent that disadvantage is required to set up a case of prima facie discrimination - then it is present in this case.

[57] We do not accept the Crown’s argument that we should dismiss this claim without even having to consider issues of justification under s.5 NZBORA.

Justification

[58] The decision of the Supreme Court in R v Hansen [2007] 3 NZLR1 provides guidance as to how the issue of justification ought to be approached. We adopt the following passage from the judgment given by Tipping, J as our starting point:

“Whether a limit on a right or freedom is justified under s.5 is essentially an inquiry into whether a justified end is achieved by proportionate means. The end must be justified and the means adopted to achieve that end must be proportionate to it. Several sub-issues inform that ultimate head issue. They include whether the practical benefits to society of the limit under consideration outweigh the harm done to the individual right or freedom. The Court’s function is not immutably to substitute its own view for that of the legislature. If the Court agrees with the legislature that the limit is justified, no further issue arises. If the Court does not agree, it must nevertheless ask itself whether the legislature was entitled, to use Lord Hoffman’s word, to come to the conclusion under challenge. It is only if Parliament was not so entitled that the Court should find the limit to be unjustified.

In this way and to this extent the Court’s function is one of review. It is not one of directly substituting the Court’s own judgment. But the more intensely it is appropriate to review Parliament’s appreciation of the matter, the closer the Court’s role will approach a simple substitution of its own view. This is the regime under which the Courts manage the ever-present potential tension between democratically elected representatives and unelected judges concerning when and to what extent a parliamentary majority may limit individual rights and freedoms.” (at para’s [123] and 124]).

[59] We approach the evidence of justification in this case on that basis, and taking account of the issues identified at paragraph [104] of His Honour’s decision:

“This approach [i.e., as discussed by the Supreme Court of Canada in R v Oakes [1986] 1 SCR 103] can be said to give rise to the following issues:

(a) does the limiting measure serve a purpose sufficiently important to justify curtailment of the right or freedom?
(b)

• (i) is the limiting measure rationally connected with its purpose?
• (ii) does the limiting measure impair the right or freedom no more than is reasonably necessary for sufficient achievement of its purpose?
• (iii) is the limit in due proportion to the importance of the objective?”
  

[60] We were asked by Crown counsel to keep a particular dimension of this case in mind, namely that the relevant ground in s.21 HRA on which the plaintiff is relying in this case is age. It was submitted that age distinctions do not always raise the same kinds of discrimination concerns that are raised (by contrast) in cases of racial discrimination, gender discrimination and other kinds of discrimination: everyone can be described as being of such and such an age. The same is not true of the other prohibited grounds of discrimination. As McLauchlin C J said in Gosselin (supra, at para [22]):

“. . . unlike race, religion or gender, age is not strongly associated with discrimination and arbitrary denial of privilege. This does not mean that examples of age discrimination do not exist. But age-based distinctions are a common and necessary way of ordering our society.”

[61] To similar effect, in McKinney v University of Guelph, La Forest J. said:

“The truth is that, while we must guard against laws having an unnecessary deleterious impact on the aged, based on inaccurate assumptions about the effects of age on ability, there are often solid grounds for imparting benefits to one group over another in the development of social schemes and in allocating benefits.” (1990) 76 DLR (4th 545, at page 660).

[62] Against all of that, the learned authors of Butler & Butler, The New Zealand Bill of Rights Act – A Commentary (supra) make the point that:

“One major difference between age and many traditional grounds of discrimination is that age is a dynamic process, not a static one. So, while most people are born with, and remain part of, a particular sex, religion and so on, we all, for as long as we live, age continually. This difference has been noted by a number of Courts and commentators and has encouraged a number of people to express the view that age discrimination is not as odious as other forms of discrimination. With respect we do not agree. While sometimes age is used as a reasonably arbitrary cut-off point to determine eligibility for, say, social welfare entitlements, and this can be acceptable, in other instances age reflects more or less unthinking assumptions about the capacities of persons within certain age categories that seek to stereotype or stigmatise all individuals within the group. In our view, age discrimination can cause acute problems in the human rights field and a careful, nuanced approach to this ground is recommended” (at para 17.8.17)

[63] A second preliminary point relates to the subject matter of the legislation under consideration. In R v Hansen (supra) the Supreme Court was considering the effect of s.6(6) of the Misuse of Drugs Act 1975, which provision was found to be inconsistent with the presumption of innocence in s.25 (c) NZBORA. It was a kind of issue in respect of which the Courts have particular experience. The issue before us in the present case is different. Ultimately, the plaintiff’s claim asks us to evaluate limits placed by Parliament on the availability of benefits under IPRCA. In this context, Crown Counsel referred us to Canada (Attorney-General) v J T I-McDonald Corp (2007) 281 DLR 4th) 589:

“The difference may be appropriate in assessing whether the requirements of rational connection is made out. The effective answers to complex social problems, such as tobacco consumption, may not be simple or evident. There may be room for debate about what will work and what will not, and the outcome may not be scientifically measurable. Parliament’s decision as to what means to adopt should be accorded considerable deference in such cases.

“ ... again, a certain measure of deference may be appropriate, where the problem Parliament is tackling is a complex social problem. There may be many ways to approach a particular problem, and no certainty as to which will be the most effective. It may, in the calm of the Courtroom, be possible to imagine a solution that impairs the right at stake less than the solution Parliament has adopted. But one must also ask whether the alternative would be reasonably effective when weighed against the means chosen by Parliament. To complicate matters, a particular legislative regime may have a number of goals, and impairing a right minimally in furtherance of one particular goal may inhibit achieving another goal. Crafting legislative solutions to complex problems is necessarily a complex task. It is a task that requires weighing and balancing. For this reason this Court has held that on complex social issues, the minimal impairment requirement is met if Parliament has chosen one of several reasonable alternatives.”

[64] The decision in R v Hansen establishes that it is not necessary for the Crown to demonstrate ‘minimum impairment’ in order to justify the imposition of a limit on the rights protected by NZBORA. As noted above, Tipping, J has discussed the idea in terms of the need to show that the means adopted by Parliament in order to achieve a particular legislative objective were proportionate to the objective in question.

[65] None of this is to suggest that limits on the availability of vocational rehabilitation are not open for review by the Tribunal in terms of s.5 NZBORA or, indeed, that there might be legislation of some kind which is quite simply beyond the reach of the Courts (or, under Part 1A of the HRA, this Tribunal) to consider. Nonetheless, taking the spectrum of issues which extends from matters that involve major political, social or economic decisions at one end, to matters which have a substantial legal content at the other (see Tipping, J in R v Hansen supra at para [116]), we recognise that this case falls somewhat further away from the ‘substantial legal content’ end of the spectrum, than did the matters at issue in R v Hansen itself.

[66] We turn to the evidence as to justification in this case.

[67] There was no age limit on eligibility to access vocational rehabilitation when the accident compensation scheme was first introduced. By 1990, however, there were significant concerns about the cost burden that the scheme as a whole was imposing on those liable to contribute to it. We were shown a Governmental proposal for reform that was presented in July 1991 under the title “Accident Compensation – A Fairer Scheme”. Crown counsel urged us to resist any temptation to see the proposals a being in the nature of ‘cost-cutting’, but instead submitted that the suggested changes were designed to ensure a fairer overall scheme, having regard not only for the interests of claimants and potential claimants, but also to those of employers and others whose financial contributions are required to fund payments.

[68] Amongst other things, the proposal included amendment to the availability of vocational rehabilitation. Subsequently limits on the availability of vocational rehabilitation were introduced by the Accident Rehabilitation and Compensation Insurance Act 1992. The details were later amended in 1993 (that being an effect of s.21 of the Accident Rehabilitation and Compensation Act (Amendment) Act 1993) and again in 1996 (see the Accident Rehabilitation and Compensation Amendment (No. 2) Act 1996. It was the IPRCA in 2001, however, which introduced the concept of vocational independence, and included requirements for medical and occupational assessments before rehabilitation plans are set up to inform possible rehabilitation pathways for individual claimants.

[69] We were not directed to any evidence to indicate that the potential NZBORA consequences of these legislative decisions were ever identified, much less discussed or evaluated in any specific way, at the time these provisions were passed. Perhaps that is not surprising, given that NZBORA itself was enacted in 1990. But by the same token, the case raises an issue as to the point in time at which any s.5 NZBORA justification analysis ought be undertaken. The topic was not dealt with in the submissions, but we think it reasonably obvious that the analysis has to be undertaken having regard to circumstances as they exist at the time of hearing any Part 1A challenge. To approach matters on the basis that circumstances do not change, or that if justified when enacted then discriminatory legislation is always justified, would both be a little unrealistic and at odds with the intention of Part 1A.

[70] In fairness to Crown counsel, no such proposition was advanced in defence of the legislation at issue in this case. The information and submissions that were presented were intended to put the legislation into its historical and policy-related context, and were entirely appropriate. Nonetheless we think that a present day assessment of the impact of the subject legislation is at least as important in any s.5 NZBORA analysis as its history and past policies.

[71] There are several factors in favour of a finding that the legislation here should be regarded as falling within s.5 NZBORA.

[72] The first significant point is perhaps the most obvious. Whatever the transitional details of s.85 and cl.52 may be, the fact is that vocational rehabilitation is linked to entitlement to weekly compensation. As Crown counsel submitted, the link is a natural one. Weekly compensation is paid to those who have suffered personal injury by accident and are unable to return to their pre-injury occupation and level of earnings without assistance. It is obvious, however, that irrespective of injury many people reach the end of their working lives before they reach the end of their lives. It cannot sensibly be suggested that those who are entitled to weekly compensation ought to be entitled to continue to receive weekly compensation for the remainder of their lives no matter how long they live. Some limit on payment of weekly compensation is clearly indicated.

[73] It was suggested by Crown counsel that there were at least two ways in which this legislative issue relating to the availability of weekly compensation might have been dealt with. One solution might have been to undertake individual assessments of whether particular people would be likely to be continuing in full-time paid employment but for the injury suffered. It is an inherently speculative task, of course. Furthermore, if any suggestion of age discrimination is to be avoided, assessment would have to be to carried out for everyone not just those over a given age.

[74] A different solution (and the one adopted by Parliament in cl.52) is to assume that at a particular age most individuals will have retired and will no longer be earning at pre-injury levels.

[75] The Crown produced evidence to show that a 65 year old ‘cut-off’ point for weekly compensation entitlement is consistent with data about work patterns in New Zealand. Amongst other things, a report entitled “Demographic Aspects of New Zealand’s Ageing Population” in March 2006 by Statistics New Zealand shows that only 16% of men and 8% of women are still working after age 65. Crown counsel also observed that the 65 year age limit coincides with the start of universal entitlement to income through New Zealand Superannuation.

[76] Choosing the age of 65 as a cut-off for general entitlement to weekly compensation is of course an arbitrary decision. Parliament could have chosen almost any other age (although, if the age were unrelated to the availability of superannuation and/or was set very much below what survey data establishes about the likelihood of retirement, then it might be more difficult to justify in terms of a s.5 NZBORA analysis). But it is in the very nature of what Governments do to make decisions about the allocation of resources. In this part of their argument, Crown Counsel referred us in particular to the observations of Moses, J in R (on the application of Hooper) v Secretary of State for Work and Pensions [2002] EWHC 191 at [115]:

“In determining how to target resources to those in need, the legislature is entitled to impose “bright line” rules which are easy to apply and which may not focus with precision on the merits of individual cases. No logic can indicate where the balance should be struck; evaluative judgments are required, based on experience. . . . but such bright line rules in the context of social and economic policy do not lead to incompatibility [in that case, the European Convention on Human Rights] even if individual hardship is occasioned. ... The Government was entitled to avoid complex and expensive assessments of need.”

[77] None of this part of the argument for the Crown is particularly controversial. We say again, that the plaintiff has not asked us to find that the 65 year cut-off point to general eligibility for weekly compensation is an unjustified limit on the right to freedom from discrimination.

[78] We think it can also be said in favour of the Crown’s case that in fact 65 is not a finite ‘cut off’ point either for entitlement to weekly compensation, or in respect of eligibility for vocational rehabilitation. As noted at paragraphs [23] to [25] above, weekly compensation (and therefore vocational rehabilitation) are still available for those who suffer an injury at or after age 65 – although, in those cases, only up to a maximum of two years. We consider this aspect of the legislation mitigates the discriminatory effect of the age limit and is properly to be taken into account in any assessment of proportionality.

[79] Against all of these considerations, however, there is what we regard as a most significant aspect of the evidence we heard. It has to do with what all of this really means in practical and present day terms, specifically relation to the costs of opening up eligibility to vocational rehabilitation to everyone.

[80] The Acting Principal Analyst in the ACC’s Policy and Monitoring Team gave evidence estimating that in each year there are approximately 90 people who are incapacitated and who have their weekly compensation stopped because they have reached the upper age limit. Of those who remain on weekly compensation until the time when they must elect to receive superannuation or weekly compensation, more elect superannuation (65 claimants a year on average) than weekly compensation (25 per year on average).

[81] Although somewhat imprecise, it seems clear that the overall numbers of people who might actually look to the Government to provide vocational rehabilitation after age 63 if there were no age related limit is very small indeed. And, at the risk of belabouring the point, this is not a discussion about the costs of providing weekly compensation without any age limit.

[82] Evidence given by the ACC’s Chief Actuary was that the cost of removing the link between the age limits for weekly compensation and vocational rehabilitation would have been in the order of $1.171 million if it had been done in the 2007/08 year. The calculation assumed that other, non age-related limits would still apply (for example, and as noted at para [20] above, vocational independence is assessed in each case, and the extent to which support is actually provided in any given case – if any - depends on the assessment). The Chief Actuary also explained that the calculation had been based on average claim continuance rates and population mortality rates, rather than at the level of individual claims. That seems reasonable, although given the evidence noted in the preceding paragraph as to the small number of claimants at issue, assessment on the basis of individual claims might also have been a realistic way of approaching the matter. In any event, it was explained that the figure of $1.171 million includes an element of ‘catch up’; i.e., that it includes the costs in the first years after removing the age limit of having a number of long-run ACC claimants take advantage of the new regime.

[83] The evidence given by ACC’s Chief Actuary was that the long run annual cost of removing limits on eligibility to access vocational rehabilitation could be expected to be considerably less than $1.171 million; instead he estimated that (in 2007/08 equivalent dollars) the long run annual cost might be expected to be in the order of $500,000 to 600,000. As he put it, even at a figure of $1.171 million per annum the extra cost of funding unrestricted eligibility for vocational rehabilitation has a negligible effect on the rates at which levies are gathered to fund the ACC scheme. The long run implication of removing age limits on eligibility for vocational rehabilitation has no material effect on levies at all.

[84] Furthermore, while it may be true to say that it would be impracticable to test eligibility for weekly compensation on a case by case basis, the reality is that vocational rehabilitation has been susceptible to a case by case evaluation of what is needed at least since 2001. If after assessment there is no prospect of a return to vocational independence in any given case, then presumably vocational rehabilitation is not provided. Of course advancing years will make a difference to the assessment of what prospects there are for a return to or improvement of vocational independence in individual cases. But, putting aside the cost of assessment, there is no extra cost in providing support for vocational rehabilitation to those at and over 63 unless and until the legislative assumption behind IPRCA (i.e., that older people are unlikely to return to the workforce if injured) has been established as being untrue in the particular case.

[85] We are unwilling to accept that the cost of adding perhaps another 90 or so people a year to the list of those for whom vocational rehabilitation might be assessed if indicated, is of any real significance. And, of course, to the extent that some people in the older age bracket are thus able to access vocational rehabilitation and make meaningful steps to return to vocational independence, there is the prospect of benefits for the individual and to society of their achieving a return to paid employment.

[86] Even acknowledging all due deference that needs be allowed, and notwithstanding all of the other matters raised by Crown counsel, we have not been persuaded that the prima facie age-related discrimination that we have identified in s.85 and Cl.52 IPRCA is justified under s.5 NZBORA, when there is no material additional cost to the ACC scheme in removing it, and no other adverse social or economic consequences that could possibly be said to follow if the age limit on eligibility were removed. In our assessment, the limiting measures no longer serve a purpose that is sufficiently important to justify curtailment of the right to freedom from discrimination by reason of age (if they ever did).

[87] We therefore conclude that s.85 and cl.52 are inconsistent with the right to freedom from discrimination as affirmed by s.19 NZBORA. In our view the plaintiff is entitled to have a declaration accordingly.

Exercise of our discretion

[88] As noted in Howard v Attorney-General [2007] NZHRRT 24, the Injury Prevention, Rehabilitation and Amendment Bill (No.2) (‘the Bill’) was introduced to Parliament on 23 November 2007. It contains provisions which, if enacted, would remove the upper age limit for vocational rehabilitation so that eligibility would not thereafter be affected by loss of entitlement to weekly compensation when claimants reach or are over the age of 65.

[89] Crown Counsel argued that even if we were to find that there was a breach of Part 1A, nonetheless we should decline to make the declaration of inconsistency sought by the plaintiff; even if the requirements for such a declaration are established, the power in s.92J(2) is still a discretionary one. We were urged to find that because the Bill is before the House there is really no need for a declaration. Indeed it was submitted that it would be wrong for us to issue a declaration in the circumstances. Crown counsel referred us to R v Manawatu (CA 12/05, 10 November 2006).

[90] With respect, however, we do not see that it would be appropriate to refuse to make the declaration indicated. Our reasons are essentially those that we gave when deciding that the case should be heard notwithstanding the Crown’s application for an adjournment before the hearing: see Howard v Attorney-General [2007] NZHRRT 24. We do not repeat the discussion.

Conclusion

[91] We are satisfied that the challenged legislation is inconsistent with the right to freedom from discrimination affirmed by s.19 of the New Zealand Bill of Rights Act 1990, and is not within any reasonable limit to that freedom as can be demonstrably justified in a free and democratic society.

[92] Pursuant to s.92J(2) of the Human Rights Act 1993, we declare that s.85 and cl.52 of the Injury Prevention Rehabilitation and Compensation Act 2001 are inconsistent with the right to freedom from discrimination affirmed by section 19 of the New Zealand Bill of Rights Act 1990.

Costs

[93] The plaintiff represented himself throughout the proceedings, and may well have no claim for costs to make. In any event, there may be an argument as to whether the terms of s.92J(2) have the effect of excluding the Tribunal’s power to award costs s.92L of the HRA.

[94] However if there is an issue about costs, then the following timetable will apply:

• [a] Any application by the plaintiff is to be filed and served, together with any accompanying affidavits or other materials, within 28 days after the date of this decision;
  
• [b] Any submissions and/or materials from the Crown in reply are to be filed and served within a further 21 days;
  
• [c] The Tribunal will then deal with the question of costs on the basis of the papers that will have been filed, and without any further viva voce hearing;
  
• [d] We leave it to the Chairperson of the Tribunal to vary this timetable if it is considered necessary to do so.
  

_______________ _______________ _______________
Mr R D C Hindle Ms J Grant MNZM Ms D A Clapshaw
Chairperson Member Member

Postcript by Chairperson

Since this decision was issued to the parties on 15 May 2008 I have become aware that Crown Counsel has a concern about what has been said at paragraph [17].

There was a case management conference on 2 March 2007 after which my minute recorded “The Crown’s response to the claim will be that the enactment at issue is a justified limitation under s.5 of the New Zealand Bill of Rights Act 1990.” The minute goes on to record arrangements for discovery and the filing of briefs of evidence. It was my understanding at the time and thereafter that the Crown was only going to argue the case on the justified limitation issue.

I have however been advised by Crown Counsel since the decision was issued that the person who had the carriage of the matter for the Crown in March 2007 does not recall making any concession that there would be no argument on the prima facie discrimination point.

I accept the possibility that there may have been a misunderstanding between Crown Counsel and I at the time. If so, the opening sentences of paragraph [17] of the decision are not warranted.

In any event, I note that the Tribunal did hear argument and ruled on the prima facie discrimination issue.

The experience of this issue tends to underscore the significant point that the Tribunal sought to make in paragraph [17]. It is important to recognise that the comparative informality of procedures in the Tribunal (which is necessary to ensure that self-represented litigants are able to put their claims forward effectively) can give rise to a danger of mis-communication. In future, a pre-hearing exchange of issues statements should be required in every Part 1A case to avoid any repetition of this regrettable situation.

___________________
Mr R D C Hindle
Chairperson
Human Rights Review Tribunal
26 May 2008