Abstract
The right to freedom from discrimination is a central feature of modern liberal societies. It is linked to several fundamental democratic values, including equality, the rule of law and self-determination. Although the right therefore commands intuitive support, upon closer examination, its extent and limits are unclear. This problem is evident in the context of the New Zealand Bill of Rights Act 1990 (Bill of Rights), when considering the relationship between the right to freedom from discrimination under s 19, and the allowance for "reasonable limits … as can be demonstrably justified in a free and democratic society" under s 5.
This dissertation will argue that the "material disadvantage test" adopted in Ministry of Health v Atkinson reflects an overly broad conception of discrimination, which fails to adequately define the scope of the right under s 19, and therefore places too much weight on the s 5 analysis of determining whether a limit on the right can be justified. Not only does this misconstrue the proper role for s 5 by effectively requiring it to define the scope of the right itself, but it also increases the risk of courts exceeding their institutional competence by engaging in matters of substantive policy. There is therefore a pressing need for a clarified approach to applying the right to freedom from discrimination in Aotearoa New Zealand. Defining discrimination in an "invidious" sense, similarly to the Canadian model, would be a preferable alternative to continued use of the material disadvantage test.