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Arts Council of New Zealand Toi Aotearoa Bill (Consistent) (Section 19(1)) [2010] NZBORARp 26 (17 May 2010)

Last Updated: 2 September 2019

Arts Council of New Zealand Toi Aotearoa Bill

17 May 2010 ATTORNEY-GENERAL LEGAL ADVICE

CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:

ARTS COUNCIL OF NEW ZEALAND TOI AOTEAROA BILL

1. We have considered whether the Arts Council of New Zealand Toi Aotearoa Bill (PCO

14162/1.12) (‘the Bill’) is consistent with the rights and freedoms affirmed in the

New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’). We understand that the Bill will be considered by the Cabinet Legislation Committee at its meeting on Thursday, 20 May 2010.

2. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching that conclusion we have considered a possible issue of inconsistency with the right to freedom from discrimination as affirmed in s 19(1) of that Act. Our analysis is set out below.
   

PURPOSE OF THE BILL

3. The Bill repeals and replaces the Arts Council of New Zealand Toi Aotearoa Act 1994 which established the Arts Council of New Zealand Toi Aotearoa (Creative New Zealand). Under the Act the governance of Creative New Zealand consists of a 7 member Council and two arts boards, the Arts Board and Te Waka Toi, each with 7 members. The Bill replaces this structure with a single board, the Arts Council of New Zealand Toi Aotearoa (the Arts Council).
4. The purposes of the Arts Council include promoting the arts in New Zealand, allocating funding to projects for professional and community arts, and giving advice to the Minister on any matter relating to the functions of the Council.
   

CONSISTENCY WITH SECTION 19(1) OF THE BILL OF RIGHTS ACT

5. Section 19(1) of the Bill of Rights Act affirms that everyone has the right to freedom from discrimination on the grounds of discrimination set out in the Human Rights Act 1993, which include race. In our view, taking into account the various domestic and overseas judicial pronouncements, the key questions in assessing whether discrimination exists under s 19(1) are:
   

• Does the legislation draw a distinction based on one of the prohibited grounds of discrimination?
• Does the distinction involve disadvantage to one or more classes of individuals?
  

If these questions are answered in the affirmative, we consider that the legislation gives rise to a prima facie issue of discrimination under s 19(1) of the Bill of Rights Act. Where this is the case, the legislation falls to be justified under s 5 of that Act.

Clause 3(2) of the Bill makes it one of the purposes of the Council to recognise in the arts the role of Māori as tangata whenua and the role of the Pacific Island peoples of New Zealand (as well as the cultural diversity of New Zealand). Clause 7(1) makes it a function of the Council to allocate funding to Maori and Pacific arts (as well as the diverse cultures of New Zealand).

In support of these functions, cl 10 of the Bill provides that at least four people appointed as members of the Arts Council must be appointed in consultation with the Minister of Māori Affairs having regard to their knowledge of te ao Māori (Māori world view), tikanga Māori (Māori protocol and culture) and Māori arts. Two members appointed must be persons who, in the opinion of the Minister after consultation with the Minister of Pacific Island Affairs, are also qualified by their knowledge of the arts of the Pacific Island peoples of New Zealand. The Council has 13 members in total.

Clause 10 appears to draw a distinction indirectly on the basis of race because people of Māori or Pacific descent are more likely to have the necessary knowledge and skills than those of another descent. It is arguable whether cl 10 gives rise to any disadvantage given that the majority of the positions on the Board do not require knowledge of Maori or Pacific arts. There appears to be only a remote possibility that a person of Māori or Pacific descent may be appointed ahead of an otherwise more highly qualified person.

Justified Limitations

Assuming, but not deciding, that cl 10 could give rise to prima facie discrimination, we have considered whether the provision can be justified under s 5 of the Bill of Rights Act. A limitation on a particular right or freedom can be justified under s 5 where:

• the provision serves an important and significant objective; and
• there is a rational and proportionate connection between the provision and that objective.
  

Significant and Important Objective

In making it a purpose of the Board to recognise Maori and Pacific arts, cl 3 of the Bill seeks to preserve, protect and promote Māori and Pacific arts and culture. Maori arts and culture are a unique and distinctive part of New Zealand’s culture and international cultural image. Clause 3 therefore reflects the Crown’s obligations under the Treaty of Waitangi to protect Māori cultural heritage and taonga. While Pacific culture is not unique or indigenous to the country, New Zealand has a strong historical and cultural connection to the people of the Pacific. Clause 3 reflects New Zealand’s location in the Pacific and strong cultural ties to that region.

Internationally, the preservation and expression of minority and indigenous culture is recognised as an important aspect of minority and indigenous rights, which States should take appropriate measures to protect and promote. [1] We therefore consider the

preservation, protection and promotion of Maori and Pacific culture to be a significant and important objective.

Rationale and proportionate connection

The appointment of members with experience and knowledge of Māori and Pacific arts appears to be rationally connected to the objective of preserving, protecting, and promoting Maori and Pacific culture. The appointment of members with experience and knowledge is necessary to ensure the Council has the skills to perform those functions.

The requirement is also proportionate to the objective because it allows for non-Māori or Pacific people to be appointed where they have the necessary knowledge or experience. We also note that the purposes of the Council under cl 3, and the functions of the Council under cl 7, expressly require it to recognise and fund the arts of the diverse cultures of New Zealand.

We have therefore concluded that it is unlikely that the Bill gives rise to discrimination under s 19(1) of the Bill of Rights Act and that, if such discrimination did occur, it can be justified under s 5 of that Act.

CONCLUSION

We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. This advice has been prepared by the Public Law Group and the Office of Legal Counsel.

Jeff Orr

Chief Legal Counsel Office of Legal Counsel

Footnote:

1. See the Convention for the Protection of the World Cultural and Natural Heritage, Convention for the Safeguarding of the Intangible Cultural Heritage, and the Convention for Cultural Diversity 2005.

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Arts Council of New Zealand Toi Aotearoa Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release

of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.