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APPLICATION OF AFFIRMATIVE ACTION LAW IN NEW ZEALAND: UNCERTAINTY IN COVERAGE, DEFINITION AND RESULTS Catherine Iorns Magallanes I
Introduction
The term “affirmative action” refers to policies designed to benefit particular minority groups in society. Such policies may be used in any area of public life but are most commonly found in education and employment. It can be viewed as a temporary exception to equality – as a necessary evil – or as the embodiment of substantively equal treatment, and thus an important tool to foster equal results. 1 Whatever the conception, “[a]ffirmative action has long been a public policy tool in New Zealand,” 2 and has been specifically authorised in legislation since 1977. 3 Affirmative action has become relevant to the Victoria University of Wellington School of Law in two ways. First, it has been raised whether it may be used to justify the hiring and promotion of women faculty. Second, it is used as a justification for special educational measures being provided for Maori and Pacific Island law students. However, the law on affirmative action is not clear cut, and raises significant issues which require discussion and analysis before they can be answered.
1 Rishworth and others, The New Zealand Bill of Rights (Melbourne, Oxford University Press, 2003) 389. 2 Rishworth The New Zealand Bill of Rights, above 389. 3 The Human Rights Commission Act 1977 first enabled the Commission to approve such special plans. Most plans submitted targeted women and all were for education or training. The purpose as stated by the Human Rights Commissioner was to achieve equality of outcome.
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Human Rights Research In this same forum last year, Marion Maddox addressed the topic of affirmative action but from a philosophical and theoretical perspective. She considered how best to accommodate and uphold arguments for affirmative action within liberal individualism for a range of target groups, without cutting across other claims, such as groupbased cultural rights. 4 My task or approach is very different from that in Marion’s paper. Indeed, it is almost at the opposite end of the theorypractice spectrum. This paper takes a case study approach, asking how the law regards affirmative action measures, particularly the current legal tests and thresholds for justification of affirmative action measures. It addresses what guidance the law provides in respect of the kinds of measures that can be adopted in such situations. Unfortunately, the law in this area is not as clear as one would like it to be. The relevant tests and thresholds are confused, overlapping and uncertain. This makes it difficult for an institution to apply them if it is considering – or has implemented – affirmative action measures. II
Case Studies
The examples providing the case studies come from the VUW Law School: A
Racebased educational assistance
There are two types of racebased educational assistance in the Law School: entry quotas and extra tutorial assistance. The recent political climate has been such that all racebased assistance has been declared suspect and should be reviewed. 5 While there are perennial complaints about the differential treatment inherent in such a system, in 2003 some issues were raised about
4 Marion Maddox “Durkheim Beyond Liberalism: Liberal Accommodations of Group Rights” in Paul Morris and Helen Greatrex (eds) Human Rights Research (Victoria University of Wellington, 2003); papers from the Symposium on International Human Rights Theory (Victoria University of Wellington, 28 August 2002) 71102. 5 This recent political climate is embodied in the speech delivered by Don Brash, MP, Leader of the National Party, entitled “Nationhood” to the Orewa Rotary Club, 27 January 2004. In this speech Brash argued that “there can be no basis for special privileges for any race”. Perhaps as part of this changed political climate, first year tutors and lecturers noticed in 2004 an increased number of complaints from other students about the racebased assistance offered in the Law School.
Application Of Affirmative Action Law In New Zealand the operation of the current system such that the law faculty has considered obtaining a legal opinion on the legality of the current program. 1
Maori entry quotas
At Victoria University of Wellington entry into first year law is open. However, entry into second year law is restricted to a maximum of 300 places in each second year paper. For entry into second year under the general admissions process, students must have passed all the first year law papers plus other nonlaw points. Entry is competitive and students are selected on the basis of their grades. 6 An exception to the strict selection on the basis of academic merit is made for special circumstances. In their application for entry to second year, applicants may cite circumstances of economic, social or educational disadvantage that they believe should be taken into account in assessing their application. Such circumstances often indicate that a student might succeed in law school despite their previous grades not being high enough for admission under the general admission process. Applicants may cite significant work and life experience that would be relevant to the successful completion of a law degree, especially where their previous grades were obtained many years ago. In addition to obtaining entry through the special circumstances criteria, the Law School has adopted a Maori Admission Process whereby 10% of available places are reserved for Maori students applying through it. Under this process, Maori students who have passed the first year law papers, but who have not obtained high enough grades overall to achieve entry through the general admission criteria, may be accepted into law nonetheless. This process requires personal interview and discussion of the student’s academic record, commitment to tikanga, te reo, their iwi, hapu and/or whanau, and the support available to them in their study. The panel will discuss with the student plans for their law study and recommend a permissible course load.
6 This is either based on their first year law results or, for those who are not coming straight from their first year of university study, on their average grade in their last year of study. It is often cited that a student will need a B+ average for general admission. This grade is not set in advance but is determined by the number and quality of applications. Note that these students are only chosen after returning second year students have been allocated a place, so the precise number available for initial entry varies from year to year.
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Human Rights Research The aim of this program is to enable more Maori students to graduate from Law School and become lawyers. It is recognised that a higher percentage of Maori do not have as good an educational grounding as nonMaori and so are less likely to achieve entry where that entry is competitive and based on prior achievement. The justification for the program is the expectation that, despite such an educational background, those Maori admitted will nonetheless be able to “rise to the occasion” and pass their later law courses. A separate quota, apart from the special circumstances exception already in existence, is justified for two reasons. First, is the visible signal of a commitment to the Treaty of Waitangi, in singling out Maori as opposed to other disadvantaged groups. Second, is the ability to then establish the special process that is followed, i.e. the personal interview and hui involving representatives from the law faculty and the Maori community. Note that Maori students potentially thus have three avenues for entry into Law School. Their preferred choice must be indicated on the application form. I also note that the Maori quota of 10% is typically not filled due to a lack of suitable applicants. 2
Maori and Pacific Island tutorials
Maori students are admitted under the quota because their academic performance prior to Law School is lower than those with general admission. It is thus reasonably assumed that they might need more assistance than other students in order to achieve at Law School and graduate with a law degree. It is also recognised that Maori are more likely to succeed where there is group support for them and their efforts rather than being treated as lone individuals like everybody else. This comes from the less individualistic Maori culture, which places more emphasis on group support. Without such group support, it is foreseeable that many Maori are more likely to feel adrift in the individualistic law school environment and be even less likely to succeed. In order to address these needs, a tutorial program was devised, where all Maori students in a class could come together for an extra tutorial. All the second year courses already had a compulsory tutorial component for all students which are allocated by student timetabling preferences; Maori students are thus ‘scattered’ throughout the regular tutorials. But it was thought that one should also be established where Maori students could come together. Initially, the program of extra tutorial assistance was offered only to Maori into the second year law programme (i.e. not in the openentry first year). This was because it was designed to support the students who had
Application Of Affirmative Action Law In New Zealand entered the second year under the Maori quota. However, note that any Maori student was able to enrol in the additional tutorial program, i.e. even those Maori who had been admitted through the general admissions process and not under the special Maori quota. This was so as to reinforce the group support of Maori students to help them succeed. It could be argued that the scheme devised was insufficiently targeted and resulted in measures that were overinclusive, i.e. it conferred benefits on some students who did not need them. However, this was justified on the basis of group support (supporting academic achievement) rather than on traditional academic need. On this basis, it was necessary for all Maori students; plus the inclusion of all Maori students established a larger Maori student support group and thereby further assisted those who had been admitted under the special quota. Subsequently, Pacific Island students – many of which had been admitted under the special circumstances exceptions – requested that they be able to attend the extra Maori tutorials. The Maori students, the Maori Student Coordinator, and the Maori community advisor to the Law School all agreed that this was justifiable on the basis of academic need as well as group support. The Maori students identified closely enough with the Pacific Island students in terms of group support, plus it was accepted that the Pacific Island students would also benefit from the group support on cultural grounds. Another development of the program was the extension of the tutorial assistance to Maori and Pacific Island students in first year law, i.e. in addition to the regular first year tutorial programme. This was in recognition of the fact that many Maori and Pacific Island students needed extra assistance in the first year. Such students had not yet gone through the selection process for second year, so all Maori and Pacific Island students were eligible for the program without assessment of ability. It was also thought that this would both enable more Maori and Pacific Island students to pass the first year courses and be eligible for the special entry into second year, as well as to get better grades and therefore become eligible under general admission criteria. B
Women Law Faculty
Until mid2004 no woman had ever been appointed or – most significantly – promoted above Senior Lecturer level in the Law School. This was despite there being above average numbers for women employed in the university as
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Human Rights Research a whole at these more senior levels (compared with nationwide numbers). 7 That is also despite there having been over the years a large enough number of capable women at Senior Lecturer level such that one would have thought some might have been promoted. Over the years, men had been promoted as Associate Professors and appointed as Professors, but no women had. The issue was raised whether the situation could be targeted directly by way of preferential hiring for women and/or or alternative promotions criteria, or whether it needed to be done in a less direct manner, such as through targeted assistance enabling more women to meet the current promotions criteria. This issue was particularly important after the appointment of a new Dean in 2001 and the subsequent resignation of a Professor – a significant number of new positions, including those at the Associate Professor and Professor level, were then advertised for appointment. Women law faculty felt a definite need for the appointment of more senior women and encouraged the Dean and the appointments panels to do what they could in order to achieve this. All of these three case studies in the one law faculty raised issues about what was permissible under affirmative action laws in New Zealand. III
Two Laws
New Zealand has two different laws, with two different standards, governing affirmative action. The first task is thus to see which one applies to any given situation, and then to ascertain its requirements. These two laws are the Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990 (BORA). A
Coverage
The New Zealand Bill of Rights Act provides a wide range of broadly worded rights, including freedom from discrimination (although not only that). The main exception for limiting these rights is the broad section 5: “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The Act applies to (a) government (the legislature, executive and judicial branches) and (b) other persons or bodies exercising any “public function, power, or duty conferred or imposed on [them] by or pursuant to law.” 8
7 See Table 1, below. 8 Bill of Rights Act 1990 s 3.
Application Of Affirmative Action Law In New Zealand Whether the BORA applies to universities turns on analysis of the “public function” test, and has not been decided in New Zealand yet. A Canadian Supreme Court judgment argues that universities are considered part of the government for their education function, which is a public function, but not for the private activities ancillary to that – for example, not for leases, buildings, and employment matters. 9 Thus, it is the act or function in question which is relevant, rather than the body itself. If we adopted this approach in New Zealand, then racebased educational provisions would be covered by the BORA, but the women in employment issues would not. The Human Rights Act is much narrower and more detailed on matters of discrimination than BORA: its only topic of concern is discrimination. 10 It applies to everyone who is not covered by BORA, plus it applies to employment matters even for those public bodies who are covered by BORA for other (public) matters. It is thus clear that issues concerning women and employment in universities (recruitment and promotion) are covered by the Human Rights Act. Racebased educational assistance may be covered by BORA (under the public function test mentioned above); but, if it is not, then it will be covered by the Human Rights Act. B
Prohibited discrimination
Both Acts rely on the same list of prohibited grounds of discrimination: those in the Human Rights Act. 11 These grounds are sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status, and sexual orientation. 12 However, the different Acts provide ostensibly different regimes governing the legality of affirmative action measures.
9 McKinney v University of Guelph [1990] 3 SCR 229, L’HeureuxDube J. 10 There are approximately 53 sections in Part II of the Act describing what is and what is not allowed in terms of discrimination, in addition to the other sections of the Act setting up the Human Rights Commission and the complaints procedures. 11 BORA s 19(1) provides: “Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.” 12 See Human Rights Act s 21.
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Human Rights Act
Under the Human Rights Act mere differential treatment is prima facie unlawful – i.e. it does not need to be adverse discrimination in order to be unlawful. Affirmative action is legalised through an explicit exception in the Act. This section provides: 73. Measures to ensure equality – (1) Anything […] which would otherwise constitute a breach of […] this Act shall not constitute such a breach if – (a) It is done or omitted in good faith for the purpose of assisting or advancing persons or groups of persons, being in each case persons against whom discrimination is unlawful by virtue of this Part of this Act; and (b) Those persons or groups need or may reasonably be supposed to need assistance or advancement in order to achieve an equal place with other members of the community.
Paragraph (b) is particularly important: one needs some evidence that the group in question may need assistance in order to achieve an equal place with others (of the community). “Community” is not defined but, for employment matters, it would be the community of relevant employees. In the one case to have come before the court under section 73, in respect of a Maori student quota established for an educational training course, evidence was required about the community of those wishing to take the relevant course or to have a career in that industry. 13 It is thus clear that the section is not concerned with a general disadvantage in New Zealand society, but it is more particularised than that. For example, women in New Zealand society may suffer a general disadvantage in relation to employment, but section 73 is unlikely to justify affirmative action measures designed to increase the number of women in 13 Amaltal Fishing Co Ltd v Nelson Polytechnic (No 1) (1994) 1 HRNZ 369; Amaltal Fishing Co Ltd v Nelson Polytechnic (No 2) (1996) 2 HRNZ 225. In this case the polytechnic set aside all 14 places in its fisheries training course for Maori applicants. However, it did not properly defend this in court. It did not even attempt to provide any evidence that Maori needed or may reasonably be supposed to have needed assistance or advancement in order to achieve an equal place with other members of the community. It thus fell foul of the legislation but it was without argument. The reasonableness of the measure – of dedicating all the positions to Maori applicants – was thus never discussed. It was this latter aspect which the nonMaori complainant disputed.
Application Of Affirmative Action Law In New Zealand nursing – it is not justifiable in that situation because women do not need assistance to gain employment in that “community” of workers. In relation to our case studies on racebased educational assistance, I suggest that evidence would first be required of the position of Maori lawyers and society and of Maori gaining general admission to Law School (in order to justify the entry quota). Second, in order to justify the tutorial assistance program, evidence will be required of Maori performance throughout the degree, preferably a comparison between performance without assistance and with assistance. It might also help to assess similar programs and other Law Schools in the country, as well as other departments in the university, by way of comparison. It would be useful (although how useful could depend on the results of the above evidence) if more qualitative surveys could be made of Maori students’ experiences at law school, especially their views on what helps and hinders their achievement. While I understand that the initial evidence of relevant disadvantage was collected in order to justify the establishment of the Maori Admissions Process, I do not believe that the subsequent evidence in relation to the tutorial program has been formally collected (although I do not doubt that the relevant need exists). Nor have any relevant qualitative surveys been conducted at the Law School. In the example of a lack of women in senior faculty positions in the Law School, statistics in relation to the employment of women and men at all levels should be provided, as should discussion of why women are not getting to the higher levels. In relation to the statistics, comparisons could be made between the Law School at Victoria University of Wellington and other Law Schools in the country, as well as comparisons between the Law School and other schools within the same university (and perhaps also with general figures from other universities). Discussion of the reasons why women have not reached the higher levels in the Law School could focus on research into academic women generally compared with men, as well as focus on the Law School itself. For example, interviews could be conducted with women both in the Law School and those who left (before getting promoted) about factors they consider contributed to their not being promoted. This kind of research has been done at a
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Human Rights Research universitywide level. 14 This research found that the most significant factor in promotion, or lack of it, was the amount of time available in one’s week to do research. At Victoria University research performance and productivity is the primary criterion for promotion. The research found that women suffered most in terms of research time through their primary responsibility for dependants – whether for their children or their aged parents. Because research time is not scheduled in the way that class time is, it most often got relegated to the lowest priority, and it was simply left unfinished when the available hours in a week ran out. As these factors are not specific to the Law School, it is possible to use this kind of evidence of the general situation and apply it to the specific situation in the Law School. The same kind of exercise could be conducted in relation to appointments. This information would help define what kinds of measures were needed in order to address the problems faced. 2
Bill of Rights Act
The Bill of Rights Act also treats affirmative action measures as remedial measures for those disadvantaged by discrimination, but even more explicitly than the Human Rights Act does. The relevant provision is section 19: 19. Freedom from discrimination: (1) Everyone has the right to freedom from discrimination … (2) Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of the Human Rights Act do not constitute discrimination.
Unfortunately, the Act does not define “discrimination”, nor have New Zealand courts conclusively established what constitutes it. 15 On its face, it appears as though a different definition of “discrimination” from that in the Human Rights Act is meant. It is clear from the drafting of BORA that the formal approach taken to discrimination which is taken by the Human Rights 14 Jenny Neale and Kate White “Almost there: a comparative case study of senior academic women in Australia and New Zealand” (Paper at the New Zealand Pay and Employment Equity for Women Conference, Wellington, June 2829 2004). Paper on file with author. 15 The primary case to have considered this is Quilter, but the different judgements gave different views on this point. Quilter v Attorney General [1998] 1 NZLR 523 (CA). See also below note 19 and accompanying text.
Application Of Affirmative Action Law In New Zealand Act was not intended. Instead, a substantive concept of equality and thus meaning of “discrimination” was envisaged. At first, only section 19(1) was included in the draft, with no specific exception for affirmative action programs. This was because it was thought that affirmative action programs would not be inconsistent with this right: 16 ‘[A]ffirmative action laws and programs to overcome existing disadvantages would be valid. They are unlikely to be seen as discrimination at all. This is why, unlike for Canadian Charter, the Bill contains no specific exception in favour of affirmative action.
Despite this view, subsection 19(2) was inserted in order to make it clear that affirmative action programs would not constitute discrimination. 17 It was apparently merely regarded as declaratory. 18 Indeed, on this view, it is redundant. 19 Taking a purposive approach to statutory interpretation would take account of such intent and hold that affirmative action programs do not constitute discrimination, whether under subsection (1) or (2). This would also be a logical result of considering the stated purpose of section 19: freedom from discrimination only makes sense if it is something bad that one has a right to freedom from. Despite the stated intent, this does not put an end to consideration of what counts as discrimination, nor of the delineation of the types of programs that are able to be protected as legitimate affirmative action. First, the wording of section 19(2), on its face, narrowly defines the types of situations which can be saved by subsection (2). It is narrower than section 73 of the Human Rights Act in that it only applies to programs to assist persons suffering from actual past unlawful discrimination. It does not apply to those who simply may reasonably be supposed to need assistance or advancement. On this narrower view, there could be a category of affirmative action programs not saved by 19(2). That is, 19(2) may simply be declaratory, but of a narrow 16 A Bill of Rights for New Zealand (1985) AJHR A6, para 10.79 (referred to as the “White Paper”). 17 Rishworth The New Zealand Bill of Rights, above 390. 18 Rishworth The New Zealand Bill of Rights, above 390. 19 The Canadian Supreme Court has said precisely this about its equivalent subsection. See, for example, Lovelace v Ontario [2000] 1 SCR 950, 955, as discussed in Rishworth The New Zealand Bill of Rights, above 391.
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Human Rights Research range of affirmative action programs. It would leave others which might survive section 73 of the Human Rights Act to fall foul of 19(1). Second, despite the stated drafting intent of section 19, there are different views on the meaning of “discrimination” in 19(1). Others take a more literal approach to interpretation of the section, placing less weight on the stated intent before the passage of the Act. For example, Andrew Butler argues that the section takes the formal, literal meaning of “discrimination” as adopted in the Human Rights Act. 20 As with section 73, the institution adopting the discriminatory measure must then justify it under either section 19(2) or section 5. The Ministry of Justice takes a similar (although not identical) view: that any distinction in treatment on a prohibited ground can count as discrimination, but only where that treatment causes disadvantage. 21 This would also leave affirmative action programs to be justified under section 19 (2) and section 5. The court so far has not taken the Human Rights Act approach, equating discrimination with mere differentiation, but appears to take a slightly different approach again and suggest that discrimination means differentiation with adverse effects which are unreasonable or irrelevant. 22 Interestingly, overseas courts, such as in Canada and the United States, have devised different tests for deciding what counts as discrimination and/or legitimate affirmative action, where those different tests depend on the subject matter concerned. For example, differential treatment based on race and nationality has been subject to very strict court scrutiny, and differential treatment is only upheld where it is necessary to achieve a compelling government interest. Almost nothing gets past this test. Sex and legitimacy has an intermediate level test: differential treatment has to be substantially related to an important objective. Other grounds not based on inherent personal characteristics have a lower threshold: differential treatment only
20 Andrew Butler “SameSex Marriage and Discrimination” [1998] NZLJ 229, 230. 21 Rishworth The New Zealand Bill of Rights, above 376, n 26. 22 Quilter v Attorney General, above. I say only “appears to” and “suggest” because the five judges in the case gave different reasons and different definitions of “discrimination”. It is not possible to distil one single test from the five judgements.
Application Of Affirmative Action Law In New Zealand has to have a rational relationship to a legitimate government objective in order to be upheld. 23 If New Zealand adopts similar criteria for assessing discrimination and/or affirmative action, this will affect the interpretation of section 19(2) of BORA in at least two ways. First, one is required under section 19 to find previous unlawful discrimination, so the test will be relevant to this. It will be easier to find that unlawful discrimination has occurred on the grounds of race than for sex or for other grounds. Second, along with taking a strict line against race discrimination, this could also be translated into a stricter line taken against affirmative action measures based on race. This could make such measures harder to justify, too, or make their scope narrow and finely targeted, so as not to create new discrimination against those outside the target group. Under BORA there is also the need to consider the requirements in section 5, that: [T]he 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.
In theory it is possible that affirmative action measures which fail the section 19(2) test could instead be saved under section 5. There may be a finding that measures taken are not used for addressing past actual discrimination, thus finding that section 19(1) is not satisfied. However, it may be possible for them to be justified nonetheless as a “reasonable limit prescribed by law.” In relation to the university, we would not pass the “prescribed by law” element if it is interpreted literally. If so, it is irrelevant for our illustration. But the question of how this affects the consideration of affirmative action measures is unclear and will depend on the approach adopted by a New Zealand court to the meaning of “discrimination” in BORA. C
Scope of measures
It appears that neither statute provides for any assessment or scrutiny of the scope of affirmative action measures adopted. There is no explicit requirement of assessment, for example, against a standard of reasonableness. Yet it would be silly to think that this is irrelevant. For example, if the 23 For a helpful summary of the approach of the US Supreme Court see Rishworth The New Zealand Bill of Rights, above 373.
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Human Rights Research university decides that there is a problem of underrepresentation of women at the Associate Professor level, is it allowed to prohibit promotion of men to that level until the required numbers of women are promoted to that level? Or would such a measure fall foul of some requirement of reasonableness? For another example, in order to get more Maori studying law, would it be possible to set aside 50% of 300 places available, or to lower the passing grade for Maori in individual courses in order to get more Maori graduates? I suggest that such measures would not be considered reasonable. But it is unclear on the face of the legislation how and where such a determination might be made. It could perhaps be argued that this falls foul of the requirement in both Acts that measures be taken in good faith. But it is not clear that this is the best ‘peg’ to hang a reasonableness argument on. Interestingly, the international conventions concerning discrimination on the basis of race and sex – the Convention on the Elimination of Racial Discrimination and the Convention on the Elimination of Discrimination Against Women – both specify that affirmative action measures must be temporary and be discontinued when the objectives of equality of opportunity and treatment have been achieved. Further, arbitrary measures are not protected. These international conventions have been influential in the development of New Zealand’s human rights laws. Such provisions suggest that a New Zealand court would bring in such considerations to the discussion of affirmative action measures under our domestic legislation. It is just not clear how this arises from the particular legislative provisions, as the standards are not specified. In relation to measures coming under BORA, if a purposive approach is taken to the interpretation of the scope of section 19(1), such circumstances could be considered in determining whether or not the measures adopted by consistent with section 19(1). If a formal approach is taken, whereby any different treatment comes as discrimination, then it is most likely that such considerations would come under section 5 (given the narrow range of situations covered by section 19(2)). 24 Under section 5 of BORA only limits which are reasonable and “demonstrably justified” can be upheld. One test adopted under section 5 of
24 Rishworth The New Zealand Bill of Rights, above 393.
Application Of Affirmative Action Law In New Zealand BORA in order to determine what is reasonable is that measures must be rational and proportionate: 25 The means used must also have a rational relationship with the objective, and in achieving the objectives they must be as little interference as possible with the right or freedom affected. Furthermore, the limitation involved must be justifiable in the light of the objective.
An interesting issue is whether such tests for limitation can be used to judge affirmative action programs even where section 5 is not involved. As section 5 concerns general standards such as reasonableness and justification it is quite possible that their elaboration and refinement can be used anywhere where policies are being subject to general considerations of justification and reasonableness. In relation to women in employment under the Human Rights Act, measures which promote women without meeting the relevant promotions criteria might not be seen as a proportionate or reasonable measure. Nor would prohibitions on the appointment of any men, even if for a relatively short period of time. I suggest that there are two types of measures which could address the lack of promotion of women. One would provide women with more time or assistance to do research, thus better enabling them to fulfil the research criteria. Another could be to change the general promotion criteria to better encompass the work that academics – and particularly women – actually do. For example, Auckland University changed the promotion criteria to better match what women were proven to be good at: teaching and administration. Instead of prioritising only research, the criteria enabled promotion of those who strength was teaching, and who excelled in that but not in research. Previously, they would have been barred from promotion until they lifted their research performance. The results of this Auckland change are apparently that a significantly increased proportion of women are now being promoted to more senior levels than before. 26
25 This is referred to as the Moonen test: Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA). 26 Prue Toft “Scaling the Ivory Tower: Career Advancement Strategies for University Women” (Paper at the New Zealand Pay and Employment Equity for Women Conference, Wellington, June 2829 2004). Paper on file with author.
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Human Rights Research Interestingly, an example from Europe goes even further than this. The Danfoss case 27 provides that if a criterion for merit review consistently disadvantages women, there is a legal duty to abolish that criterion and replace it with one which men and women have an equal chance of meeting. This is significantly stronger than justification of measures under the Human Rights Act: this case mandates that measures be taken (whether an employer wants to or not). But it is relevant because it would certainly suggest that changing the criteria for promotion would be a legally justifiable affirmative action measure in such a situation. D
Treaty of Waitangi
Obligations under the Treaty of Waitangi impose extra considerations which must be taken into account in assessing the legality of affirmative action measures for Maori. For example, the government has developed measures designed to improve outcomes for Maori on two different bases: 1
The Treaty of Waitangi, as an issue of partnership and governance, including Maori capacitybuilding;
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Remedying disadvantage, which is targeted not only at Maori but at all to who suffer the same disadvantage; but it is Maori who suffer the relevant disadvantage in disproportionately large numbers.
Currently, these two grounds overlap and often it is not clear on what basis an affirmative action programme is justified. For example, in relation to Maori quotas for Law School, we do not admit other disadvantaged groups, such as Pacific Island students, under this quota. (Although Pacific Island students may apply under the separate ‘special circumstances’ category.) The Law School has chosen to target Maori for special assistance because of the combination of both obligations under the Treaty of Waitangi and current disadvantage. The issue of what would happen if Maori ceased to become disadvantaged, presumably in terms of representation within the legal profession, has not arisen. It might be argued that such measures continue as a Treaty obligation, but I suggest that this would not meet the current law against discrimination and the legal justification of affirmative action measures. Thus, I suggest that the Treaty of Waitangi may only be taken into account as a consideration in justification of affirmative action measures for Maori where they also meet the ‘disadvantage’ test. How it may be taken 27 Danfoss Case no. 109/88, European Court of Justice, [1989] ECR 3199.
Application Of Affirmative Action Law In New Zealand into account is illustrated in the above example of the Maori quotas: while there are many disadvantaged groups in society, considerations under the Treaty of Waitangi may operate such that an institution could legitimately choose just one group to target for the affirmative action measures. One question raised recently is whether the Treaty places an active duty on the Crown to take affirmative action measures. Most commentators agree that it does not place a legal duty to do so, in the absence of legislation, just because of the legal status of the Treaty. But there are particular situations where it has been held that the Crown does have such a duty. For example, in the report of the Waitangi Tribunal in the Te Reo Maori claim, the Tribunal concluded that the Crown had a duty under the Treaty of Waitangi to take active measures to protect the language in order to protect it as a taonga. 28 It was a Treaty claim couched in the language of affirmative action. As such, the duty under the Treaty is not legally binding. However, it has also arisen in other areas, such as health services, whereby these duties have been inserted into legislation. I suggest that this only adds to the confusion of matters to take into account where there are few guidelines in the legislation on how to do it. E
Underinclusiveness
A related issue is whether there are any restrictions on how an institution may choose to adopt measures to remedy disadvantage of one group, especially when it is choosing one group over another disadvantaged group. It is clear that institutions do not have a duty to remedy every disadvantage possible. It is also clear that a body adopting affirmative action measures may choose to do something for one group and not another. But it is unclear whether there is a restriction on the choice. For example, should there be a requirement that there be a rational basis for not including a particular group in an affirmative action scheme? This issue has arisen in respect of the Maori and Pacific Island (MPI) tutorial program at Victoria University. Once the MPI tutorial program had been established, perhaps not surprisingly, another group then requested extra tutorial assistance through attendance at the program. Students who had been admitted to the Law School, where English was their second language, argued that they too had a special need for extra assistance with law study. This was particularly acute 28 Report of the Waitangi Tribunal on the Te Reo Maori Claim (Wai 11), April 1986.
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Human Rights Research in the first year program, where they were facing the skills required for the first time, plus improving their English language ability. The argument was made that those in the second year also receive assistance, whether they were admitted through the general admissions process or through special consideration. In terms of academic performance in at least the first year, the three groups of students all performed very similarly. Given that the MPI program was already running, it made sense to suggest that the ESL students be allowed to attend these tutorials. However, the ESL students were denied the right to attend. These students were mainly foreign students of Asian descent, and both the Maori students and their advisers felt uncomfortable with admitting them to the MPI tutorial program. It was argued by the Maori students that the admittance of the ESL students was not justified by general societal (i.e. economic) disadvantage – the feepaying foreign students in particular were not seen as disadvantaged at all – nor did they suffer from a lack of representation in the professions, nor was it thought that they required the support from the group culture aspect of the tutorials. Indeed, it was argued that the presence of foreign students in the tutorials inhibited the group support aspect for the Maori and Pacific Island students. This situation thus raised the issue of whether the Law School was able to discriminate in favour of particular groups in this manner when it did not provide for other groups who had arguably as much academic need for assistance. It was not justified on a lack of resources, and there was certainly space for such students to attend the MPI tutorials. It has the appearance that the Maori students themselves were discriminating on the basis of race – accepting the Pacific Island students but not the Asian ones, for example. But, given the lack of legal duty to remedy any particular disadvantage suffered, it appears that the Law School can choose to remedy some disadvantage and not others. It is not clear that this would be legally prohibited: for example, that this would be affected by application of a ‘rational basis’ test. III
Conclusion
The law on affirmative action in New Zealand certainly needs clarifying. What one needs to show in order to justify affirmative action measures in New Zealand will first depend on the legislation that it falls under: whether that is section 19 of BORA or section 73 of the Human Rights Act. Second, if a situation is covered by the BORA, justification of measures will depend
Application Of Affirmative Action Law In New Zealand upon the approach taken to the interpretation of “discrimination”. This interpretation could be formal or substantive, and will affect how much scope there is for operation of the justification in subsection 19(2) and in section 5. If the North American approach is favoured, and different tests will be adopted for different types of discrimination, then the result will also depend upon the ground of discrimination alleged: whether it is on the basis of race or sex, for example. Before adoption of any affirmative action measures, evidence will need to be provided of the disadvantage suffered by the target group. The target group will have to be carefully defined, as will the disadvantage to be remedied. Under the Human Rights Act, this disadvantage need not have been actually suffered by a particular person or group wishing to take advantage of the remedy. Instead, the test is whether they “may reasonably be supposed to need assistance or advancement”. In contrast, under BORA section 19(2), it is possible that any affirmative action measures must be designed to assist persons or groups of persons actually disadvantaged by unlawful discrimination. The scope of the measures themselves is likely to need to be justified very carefully. The relationship between the disadvantage to be remedied and the remedy chosen will have to be demonstrated. It may be necessary to prove that the measures taken are reasonable – for example that they are likely to be effective and relevant. Any program will have to be reviewed regularly and stopped when the identified disadvantage is remedied. The role of considerations based on the Treaty of Waitangi must be considered. So too must the issue of whether statistics about disadvantage suffered can trigger a presumption that discrimination exists, and then whether such a presumption can trigger the duty to remedy the disadvantage. While these aspects are not explicitly mentioned in the legislation, it is still possible that the courts may find that they are implied. What is most notable about the law on affirmative action from an interdisciplinary perspective is that the result ultimately depends on the conception of equality and/or discrimination that is adopted in interpreting the legislation. Debate over the meaning of “equality” and “discrimination” is something that lawyers do not have a monopoly on. Instead, these matters should be discussed on a wider scale, with exchange of views between a wide range of disciplines. While this paper has only identified the issues relevant
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Human Rights Research to the legal tests, I hope that it will contribute to crossdisciplinary dialogue through identification of matters that lawyers are debating. This should make it easier for those outside law to insert their views into the debate and contribute to resolving these important social issues, even when the debate takes place in the legal sphere.
