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Broadcasting (Games of National Significance) Amendment Bill (Consistent) (Section 19) [2017] NZBORARp 5 (2 February 2017)
Last Updated: 5 January 2019
2 February 2017
Hon Christopher Finlayson QC, Attorney-General
LEGAL ADVICE
LPA 01 01 21
Consistency with the New Zealand Bill of Rights Act 1990: Broadcasting (Games of
National Significance) Amendment Bill
Purpose
- We
have considered whether the Broadcasting (Games of National Significance)
Amendment Bill (‘the Bill’), a member’s
Bill in the name of
Clayton Mitchell MP, is consistent with the rights and freedoms affirmed in the
New Zealand Bill of Rights Act
1990 (‘the Bill of Rights Act’).
- 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 the consistency of the Bill with s 19(1) (freedom from
discrimination). Our analysis is set
out below.
The Bill
- The
Bill amends the Broadcasting Act 1989 (‘the principal Act’). Clause
5 of the Bill seeks to expand the functions of
the Broadcasting Commission
(‘the Commission’) to include promoting:
- the
live broadcast of New Zealand sport, and
- sporting
games and events of national significance.
- Clause
5 of the Bill further requires that the Commission shall, in the exercise of
those functions, ensure that the games of national
significance listed in
Schedule 1A of the Bill are broadcast live and
free-to-air.
Consistency of the Bill with the Bill of Rights Act
Section 19(1) – Freedom from discrimination
- Section
19 of the Bill of Rights Act affirms that everyone has the right to freedom from
discrimination on the grounds set out in
the Human Rights Act 1993, including
sex1 and disability.2
- The
key questions in assessing whether there is a limit on the right to freedom from
discrimination are:3
1 Human Rights Act 1993, s 21(1)(a).
2 Human Rights Act 1993, s 21(1)(h).
3 See, for example, Atkinson v Minister of Health
and others [2010] NZHRRT 1; McAlister v Air New Zealand [2009] NZSC
78; and Child Poverty Action Group v Attorney-General [2008] NZHRRT
31.
- does
the legislation draw a distinction on one or more of the prohibited grounds of
discrimination under s 21 of the Human Rights
Act and, if so,
- does
the distinction involve material disadvantage to one or more classes of
individuals?
- In
determining if a distinction arises, consideration is given to whether the
legislation proposes that two comparable groups of people
be treated differently
on one or more of the prohibited grounds of
discrimination.4 The distinction analysis takes a
purposive and untechnical approach to avoid artificially ruling out
discrimination.5 Once a distinction on prohibited
grounds is identified, the question of whether disadvantage arises is a factual
determination.6
Does the Bill draw a
distinction on one or more of the prohibited grounds of discrimination?
- Schedule
1A of the Bill provides a list of sporting events which are games of national
significance for the purposes of the Bill.
- The
Bill does not include a definition, or a set of criteria, that would help
interpret what can be considered a “game of national
significance”
beyond the list included in Schedule 1A.
- Looking
at Schedule 1A in totality, there is no express distinction made on the grounds
of sex or disability. The relevant sporting
events are drafted in inclusive
terms, frequently expressly providing that sporting events involving both adult
men and women are
considered games of national significance.
- If
the list is analysed in terms of individual sports, however, the Bill could be
construed as providing that certain competitions
or teams comprised entirely of
one sex participate in games of national significance, while equivalent teams or
competitions for
the other sex do not.
- For
example, all Football World Cup matches and domestic football international
matches involving the New Zealand All Whites are expressly
included in Schedule
1A. The New Zealand All Whites is a name used to refer to the men’s
national football team only. Equivalent
games played by the Football Ferns (the
women’s national football team) are not expressly listed in Schedule
1A.
- Similarly,
while the Bill includes the Summer Olympic Games and the Winter Olympic Games in
the list of games of national significance,
the Summer and Winter Paralympics or
Deaflympics are not expressly included.
4 Quilter v Attorney-General [1997] NZCA 207; [1998]
1 NZLR 523 (CA) at [573] per Tipping J (dissenting) relied on in Atkinson v
Minister of Health and others [2010] NZHRRT 1 at [199]; McAlister v Air
New Zealand [2009] NZSC 78 at [34] per Elias CJ, Blanchard and Wilson JJ and
at [51] per Tipping J; and Child Poverty Action Group v Attorney-General
[2008] NZHRRT 31 at [137].
5 Atkinson v Minister of Health and others
[2010] NZHRRT 1 at [211]- [212]; McAlister v Air New Zealand [2009]
NZSC 78 at [51] per Tipping J; and Child Poverty Action Group v
Attorney-General [2008] NZHRRT 31 at [137].
6 See for example Child Poverty Action Group v
Attorney-General [2008] NZHRRT 31 at [179]; and McAlister v Air New
Zealand [2009] NZSC 78 at [40] per Elias CJ, Blanchard and Wilson JJ.
- However,
Schedule 1A also requires that “[any] other sporting event funded by the
Major Events Development Fund or any high
performance New Zealand sportsperson
who has received government funding for development and is participating at an
international
level” must be broadcast live and free-to-air.
- This
provision would currently mean that, for example, the Football Ferns and the
Paralympics are likely to meet the definition of
national significance despite
not being expressly listed in Schedule 1A.
- Further,
New Zealand’s international obligations to promote the equal participation
of women7 and persons with
disabilities8 in sport and recreation means this aspect
of the statutory scheme would likely have an inclusive effect.
- In
addition, Schedule 1A makes a number of other distinctions in determining what
constitutes a game of national significance. For
example, games played overseas
are generally included only where they are the pinnacle events of their sport,
such as a World Cup,
or the Commonwealth Games and the Olympics. Games played
domestically, however, are sometimes included in every instance, not only
for
pinnacle events. At other times lines are drawn based on the particular format
of the game or event. One-day international cricket
matches played in New
Zealand are included, for example, whilst Test match cricket is not.
- As
such, our view is that it cannot be inferred that the Bill draws a distinction
on the grounds of sex or disability based on the
individual sports and events
that are expressly mentioned in Schedule 1A.
- On
that basis, we consider the concept of “games of national
significance” in the Bill (including the list of games set
out in Schedule
1A) does not draw a distinction on the grounds of either sex or disability and,
consequently, there is no prima facie discrimination. The Bill therefore
appears to be consistent with s 19(1) of the Bill of Rights
Act.
Conclusion
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
7 Convention on the
Elimination of All Forms of Discrimination Against Women, Article 13.
8 Convention on the Rights of Persons With
Disabilities, Article 30.
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