Ipsofactoj.com: International Cases [2003] Part 6 Case 9 [NZCA]


COURT OF APPEAL, NEW ZEALAND

Coram

Director of Human Rights

Proceedings

- vs -

New Zealand

Thoroughbred Racing Inc

ELIAS CJ

GAULT J

KEITH J

BLANCHARD J

ANDERSON J

7 MAY 2002


Judgment

Blanchard J

(delivered the judgment of the court)

INTRODUCTION

  1. The issue for determination on this appeal is whether one of the rules of racing can be impugned under an anti-discrimination provision of the Human Rights Act 1993 in respect of events occurring prior to 31 December 2001.

  2. Section 44(1) of the Human Rights Act provides:

    44.

    Provision of goods and services

    (1)

    It shall be unlawful for any person who supplies goods, facilities, or services to the public or to any section of the public—

    (a)

    To refuse or fail on demand to provide any other person with those goods, facilities, or services; or

    (b)

    To treat any other person less favourably in connection with the provision of those goods, facilities, or services than would otherwise be the case,—

    by reason of any of the prohibited grounds of discrimination.

    The prohibited grounds of discrimination, listed in s21, include marital status.

  3. But until its expiry and repeal on 31 December 2001 s151(1) of the Human Rights Act provided:

    151.

    Other enactments and actions not affected

    (1)

    Except as expressly provided in this Act, nothing in this Act shall limit or affect the provisions of any other Act or regulation which is in force in New Zealand.

  4. The issue has arisen in the following way. Rule 103(2)(c)(vii) (now re-numbered as r403(2)(c)(vii)) of the rules of racing prohibits certain horses from being trained upon any racecourse or training track owned by, or in any way under the jurisdiction of, any racing club and declares such horses to be ineligible to be entered for or to start in any race. One of the categories of horses affected by this ban is horses owned by the wife or husband of any person prohibited from entering a racecourse by rules made by a racing conference under s101 of the Racing Act 1971.

    FACTS

  5. Mr. G was convicted in March 1989 of assaulting his wife. As a consequence of that conviction and of a conviction for theft in 1959, long before the Gs were married, he was a person prohibited from entering a racecourse. Mrs. G was therefore also, in terms of r103, barred from racing horses. Between 1989 and 1995 both Mr. and Mrs. G were involved in the racing of horses. They separated early in 1995. The rules contained a provision enabling an exemption or "permit" to be granted to a person affected by the ban. Shortly after the separation Mr. G applied for and obtained an exemption. Mrs. G did not. In October 1995 a racecourse inspector told her that as a result of information obtained from her former husband the respondent, New Zealand Thoroughbred Racing Inc, then known as the New Zealand Racing Conference, had become aware that she had owned and raced horses whilst married to someone prohibited from entering a racecourse. Mrs. G had been unaware of the 1959 theft conviction and had not appreciated that the conviction of her husband in 1989 for assaulting her itself would make her ineligible to own horses for racing.

  6. The respondent determined to charge Mrs. G with breach of r103(2)(c)(vii). Unrepresented by counsel, she elected to plead guilty. She was convicted of a breach of r103, fined $700 (out of a maximum of $1,000) and ordered to pay costs of $1,500.

  7. To its credit, the respondent granted a retrospective exemption to her and to the other persons who had ownership interests in the affected horses so that they did not forfeit their stake winnings. But the conviction remained, as did the fine and costs which have not been paid. Mrs. G was threatened with being placed on the unpaid forfeit list. Persons whose names are on that list cannot enter any racecourse or training track and, if they do so, are committing a serious racing offence. They cannot race horses. Not surprisingly, in these circumstances, Mrs. G then complained to the Human Rights Commission about the way in which she had been treated.

    THE DECISIONS OF THE COMPLAINTS REVIEW TRIBUNAL

  8. The Proceedings Commissioner, now, since the Human Rights Amendment Act 2001, known as the Director of Human Rights Proceedings, who is the present appellant, brought the matter before the Complaints Review Tribunal. The respondent applied to have the proceeding struck out on the ground that the rules of racing were exempt from the provisions of the Human Rights Act by reason of s151(1). In a decision given on 10 July 1999 the Tribunal dismissed the strike out application, finding that the rules are neither an "Act" nor a "regulation" and that s151(1) therefore did not apply so as to protect them.

  9. There was then a substantive hearing before the Tribunal which, in a further decision issued on 27 October 1999, concluded that the respondent had committed a breach of s44(1)(b) of the Human Rights Act. It made an order restraining the respondent from engaging in, or causing or permitting others to engage in, "the conduct described in these proceedings or conduct which is similar to that described in these proceedings". It ordered the respondent to provide a written apology and to pay damages to Mrs. G for humiliation, loss of dignity and injury to her feelings in the amount of $8,000 and to formally and in writing vacate all penalties, including costs, which the respondent had imposed on Mrs. G. The respondent was also ordered to take necessary steps to amend the rule in question.

    THE HIGH COURT JUDGMENT

  10. The respondent appealed to the High Court against both of these decisions. When the matter came on for hearing before McGechan J it was realised that he could not proceed to hear the substantive appeal because arrangements had not been made for him to sit with additional members of the Court appointed under s126 of the Human Rights Act. But, as the appeal against the Tribunal’s refusal to strike out the proceeding could, if successful, bring the proceeding to an end, McGechan J proceeded to hear that appeal only. In a reserved decision delivered in the High Court at Wellington on 27 April 2001, reported as New Zealand Racing Conference v Proceedings Commissioner [2001] NZAR 659, the Judge allowed the present respondent’s appeal and struck out the proceeding. He accepted a submission from the respondent that the application of the Act to r103 would limit or affect the provisions of the Racing Act 1971 itself, particularly ss28 and 30, which provide:

    28.

    Conferences

    (1)

    The galloping conference has all the powers, functions, and duties for the time being provided for in the rules of racing or any regulations in force under them.

    30.

    Rules of racing and harness racing

    (1)

    For the purposes of this Act, the rules of racing and the rules of harness racing shall be, respectively, the rules of racing made by the galloping conference and the rules of harness racing made by the harness conference in force on the passing of this Act, and any valid rules as are made after the passing of this Act.

    (2)

    The galloping conference may from time to time alter or rescind the rules of racing and make new rules of racing.

    (3)

    The harness conference may from time to time alter or rescind the rules of harness racing and make new rules of harness racing.

    (4)

    Any alteration or rescission of a rule of racing or rule of harness racing, and any new rule of racing or rule of harness racing, is invalid if it—

    (a)

    was made after the passing of this Act; and

    (b)

    is in conflict with any provision of this Act.

    (5)

    Subsections (2) and (3) are subject to subsection (4).

    (For convenience we refer to the current versions of the sections, following their amendment and re-enactment by the Racing Amendment Act 2000, but the former sections enacted in 1971 were to the same effect.)

  11. McGechan J said that s30(1) recognised and validated the rules of racing as they existed in 1971, including r103, and that he did not accept that such recognition was merely of "contractual" validity, leaving those existing rules of racing somehow open to attack on other grounds. He relied in this respect on the decision of this Court in New Zealand Trotting Conference v Ryan [1990] 1 NZLR 143 where at p150 the Court confirmed the view earlier expressed in New Zealand Trotting Conference v Nevele R Stud Ltd (CA82/82, 10 December 1982) that the sections conferred "a statutory imprimatur" on the rules as they stood at that date. McGechan J said that the rules of racing then existing were recognised by a statute as valid for all purposes and were to be "an ongoing and secure foundation stone for an important social activity and industry".

  12. The Judge said that he did not accept the Proceedings Commissioner’s submission that despite that "validation", the rules must still comply with other legislation "then existing":

    Parliament did not intend that recognition to be undercut by other existing legislation. Effects of future legislation would have been left for consideration in conjunction with such future legislation.

    What was relevant was the "affect and limitation" imposed on the s30 validation in itself. By attacking "the validity of the product," the Proceedings Commissioner was limiting the statutory validation process:

    [39]

    The invalidating provisions of the [Human Rights] Act, and the validating effect of s30 Racing Act 1971 cannot stand together. The Act in terms of s151(1) cannot "limit or affect" that provision of the Racing Act in its recognition of R 103(2)(c)(vii). The Act does not apply.

  13. The Judge also considered but rejected a submission that the rules of racing in themselves constituted an Act or regulation for the purposes of s151(1). He considered that an "Act", in terms of s29 of the Interpretation Act 1999, must be construed as referring to an Act in the limited sense of an Act of Parliament, i.e. primary legislation. The rules of racing were recognised as valid by an Act, but that did not mean that they were an Act nor did he accept that the rules were a "regulation" within s29 of the Interpretation Act. Only paras (a) or (e) of s29 had potential relevance. He was unable to view r103 as made under an Act "by the Governor-General in Council or by a Minister of the Crown", nor were the rules "made under the authority of any Act". Rule 103 had been made under contractual arrangements prior to the Racing Act 1971. Recognition and validation did not in themselves amount to "making".

  14. The Judge gave leave to appeal to this Court. Although s151 has now been repealed, we were told by counsel that the substantive question of the effect of the Human Rights Act on the rules of racing as they now stand may continue to have significance unless and until such time as a clause in the Racing Bill now before Parliament is enacted. Clause 29 in its present form would invalidate any provision of any racing rule that is in conflict with any provision of the Racing Act or of any other Act or of the general law of New Zealand. The appellant has preferred in the circumstances not to accept an open settlement offer from the respondent whereby Mrs. G would retain the damages awarded to her in return for the withdrawal of the appeal. The respondent also signified through counsel its willingness not to enforce payment of the fine and costs and to undertake not to prosecute anyone in a position like that of Mrs. G. We were told by Ms Duffy QC that the Human Rights Commission is aware of one other such case.

    SUBMISSIONS

  15. The respondent now accepts McGechan J’s conclusion that the rules are not an Act or regulation in terms of s151(1). Accordingly the issue before us is whether, as the Judge found, the anti-discrimination provisions of the Human Rights Act cannot, by virtue of s151(1), apply in the face of ss28 and 30 of the Racing Act. The appellant submitted to the contrary that the application of s44(1) to r103(2)(c)(vii) does not "limit or affect" those sections.

  16. As developed during oral argument in exchanges with the Bench, the submission of the appellant was that this Court’s decision in Ryan, if not distinguishable, was incorrect and should not be followed; and that the rules of racing had not been validated by s30 for all purposes. Section 30 should not be taken to do more than merely identifying the rules. It was not approving their content for all purposes. Its effect was, as its opening words indicated, for the purposes of the Racing Act, and for that Act only. Counsel said that s28 empowered the galloping conference (i.e. the respondent – see the definition of "galloping conference" in s2(1)) to enforce the rules only so far as they have validity at the relevant time. Ryan had not been concerned with subsequent legislation.

  17. Ms Duffy QC also argued that Ryan and the earlier case of Nevele R Stud preceded the New Zealand Bill of Rights Act 1990 and that a different approach should now be taken for consistency with s19(1) of the Bill of Rights:

    19.

    Freedom from discrimination

    (1)

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

  18. For the respondent, Mr. Wilson QC submitted that in s30 Parliament had approved the rules in existence at the time of commencement of the Racing Act and had by s28 given the respondent all the powers found in those rules. If the rules were affected by the Human Rights Act there was an effect on the Racing Act, namely ss28 and 30, contrary to s151(1). If the respondent cannot enforce r103(2)(c)(vii) because of s44(1), there must be a limitation on ss28 and 30, whatever the correct interpretation of s30 – even if the rules apply only for the purposes of the Racing Act. Mr. Wilson pointed out the distinction drawn in s30 between existing rules and future rules, the latter being recognised only if valid. Counsel relied upon what this Court said in Ryan, noting that s30 was re-enacted in effectively the same terms as recently as 2000, which he contended would have been done in the knowledge of the Ryan decision.

  19. In response to the appellant’s argument for a Bill of Rights consistent approach to interpretation, Mr. Wilson argued that the Bill of Rights does not apply to actions of the respondent under ss28 and 30 and the rules, as it is a private organisation. He further submitted that the effect of s151 is mirrored in s4 of the Bill of Rights.

    AN INTERIM PROVISION

  20. Section 151(1), which had virtually identical (but not time limited) predecessors in s35 of the Race Relations Act 1971 and s92 of the Human Rights Act 1977, was an interim provision designed to allow time for inconsistent statutes and regulations to be altered to comply with the Human Rights Act. In the interim it fulfilled, it would appear, the same role as s4 of the Bill of Rights. Paul Rishworth commented in [1998] New Zealand Law Review at pp586-7 that subordinate clauses of this kind

    .... reflect a policy choice that the general, and necessarily abstracted, prohibitions of an anti-discrimination statute should not prevail over Parliamentary legislation which specifically authorises conduct claimed to be discriminatory. These provisions are rather like an explicit enactment of the generalia specialibus non derogant maxim of statutory interpretation. Generally worded prohibitions on discrimination will not repeal specific authorisations of certain conduct.

  21. Section 151 provided the opportunity for a transition from inconsistency to consistency through legislative amendment. It gave time for the conducting of an exercise to identify and assess the consistency of existing statute law and regulations. It is unnecessary to determine in this case whether the very fact that a sunset provision was considered necessary is a, perhaps paradoxical, indication on the face of the legislation that the Human Rights Act’s anti-discrimination provisions are now, since 31 December 2001, to prevail over other legislation. Certainly s19 of the Bill of Rights, as amended by s145 and the Second Schedule of the Human Rights Act, confirms that the Human Rights Act is no ordinary statute. On the other hand, it might at first blush be thought surprising, particularly in view of the linkage between the two statutes, if the anti-discrimination provisions were to qualify or even override other statutory provisions to a greater extent than is required or permitted in relation to the rights guaranteed by the Bill of Rights itself. What can be said with some certainty is that the anti-discrimination provisions will inform the construction of other statutory provisions.

    DECISION

  22. We have reservations about the way in which this Court in Ryan and Nevele R Stud appears to have regarded s30 as an entire validation of the rules of racing as they existed in 1971. (The re-enacted section continues to distinguish the rules in force on the passing of the Act, i.e. in 1971, from later (otherwise valid) rules.) Nevertheless, we will proceed on the basis that s30 did validate those rules in the sense that it treated them as immune from attack for inconsistency with existing legislation. On this basis, the rules as they stood in 1971 were not to be regarded as ultra vires and they were accepted by Parliament as having been otherwise properly made. But it did not follow that the rules would remain immune from the effects of later legislation, particularly where Parliament intended that the legislation have a special status, like the Human Rights Act. Further, given the importance of the Human Rights Act, as can be seen from s19 of the Bill of Rights Act and from the fact that it gives effect to New Zealand’s obligations under international human rights covenants, it does not seem at all likely that in re-enacting s30 in slightly amended form in the Racing Amendment Act 2000, Parliament was intending to validate any rule of racing which was in conflict with one of the anti-discrimination provisions. Parliament should not be taken to have been doing more than simply re-identifying in relation to the new structures of the racing industry the rules which had been in force since the commencement of the 1971 Act. Had anything more been intended, it seems likely that the point of distinction between the 1971 rules and later (otherwise valid) rules would have been shifted to the date of commencement of the amending legislation. Parliament does not appear to have concerned itself in amending the Racing Act with questions of validity or continuing validity.

  23. It has been held, rightly in our view, that the rules are not an Act or a regulation, as those words are defined in s29 of the Interpretation Act 1999. The rules thus are not directly shielded from the operation of the anti-discrimination provisions of the Human Rights Act. Nor do we consider that s151(1) should be taken to apply to them in an indirect manner, through ss28 and 30, as suggested for the respondent. In practical terms that would give the rules the same standing as if they were a regulation. As has already been indicated, the rules and the powers of the galloping conference in regard to them were always susceptible to the requirements of subsequently enacted statutes. Therefore, the better view – one more consistent with the broad reach of the anti-discrimination provisions – is that the general powers of the galloping conference under s28 were intended to be exercisable in respect of rules of racing only through such rules as are in conformity with the anti-discrimination provisions of the Human Rights Act and its predecessors. On this approach, the Human Rights Act does limit or affect particular rules but cannot in doing so properly be seen to limit or affect the sections which give general statutory recognition to those rules and confirm the conference’s powers of enforcement.

    RESULT

  24. The appeal of the Director of Human Rights Proceedings is accordingly allowed and the High Court’s order striking out the proceeding before the Complaints Review Tribunal is quashed.

  25. The parties may submit memoranda concerning costs on this appeal.

    Keith J

  26. I agree with the conclusion which the other members of the Court have reached – that is that s151(1) of the Human Rights Act 1993 does not protect the particular provisions of the Rules of Racing which discriminate against Mrs. G on the grounds of her marital status. I write separately, by reference to the reasons given in paras [22] and [23] of the judgment which Blanchard J has prepared.

  27. Parliament in 1971 in the Race Relations Act, in 1977 in the Human Rights Commission Act, and in 1993 in the Human Rights Act introduced prohibitions on actions in certain areas, such as employment and the provision of services, if the actions were taken on proscribed grounds such as race (1971), sex (1977) or age (1993). The introduction of such prohibitions would in the normal course be expected to override some existing law and government policies. One example, after 1977, would have been refusing to deploy women members of the armed forces into the battlefield and, a second, after 1993, providing health care at prices which varied according to age.

  28. Those responsible for preparing the legislation included provisions designed to forestall such overrides. Each of the three statutes contained two provisions of general scope saving legislation and government practice and policies. A further more specific means was also used : exceptions were written into particular provisions, for instance in relation to work involving national security, in s25 of the 1993 Act, and service in active armed combat, in s16(2) of the 1977 Act and s33 of the 1993 Act.

  29. This case concerns the two savings provisions of general scope included in the 1993 Act. While the argument has focused on subs (1) of s151, subs (2) is also significant as is s5(1)(i)-(k) which concerns the functions of the Human Rights Commission:

    151.

    Other enactments and actions not affected

    (1)

    Except as expressly provided in this Act, nothing in this Act shall limit or affect the provisions of any other Act or regulation which is in force in New Zealand.

    (2)

    Except as expressly provided in this Act, nothing in this Act relating to grounds of prohibited discrimination other than those described in paragraphs (a) to (g) of section 21(1) of this Act shall affect anything done by or on behalf of the Government of New Zealand.

    (The effect of subs (2) was that the newly introduced grounds in s21(1)(h)-(m), including disability, age, employment status and family status, did not affect government actions.)

    5.

    Functions and powers of Commission

    (1)

    The functions of the Commission shall be—

    ....

    (i)

    To examine, before the 31st day of December 1998, the Acts and regulations that are in force in New Zealand, and any policy or administrative practice of the Government of New Zealand;

    (j)

    To determine, before the 31st day of December 1998, whether any of the Acts, regulations, policies, and practices examined under paragraph (i) of this subsection conflict with the provisions of Part 2 of this Act or infringe the spirit or intention of this Act;

    (k)

    To report to the Minister, before the close of the 31st day of December 1998, the results of the examination carried out under paragraph (i) of this subsection and the details of any determination made under paragraph (j) of this subsection.

    Also relevant is s152:

    152.

    Section 151 of this Act shall expire with the close of 31 December 2001 [originally 31 December 1999], and on the close of that day shall be deemed to be repealed.

  30. Section 151(1) is essentially to the same effect as its two predecessors, s35 of the 1971 Act and s92(2) of the 1977 Act, but unlike them it is subject to both the sunset provision of s152 and the Commission review under s5(1); that is it had an interim character.

  31. Subsection (2) of s151 is to be compared with its predecessors (s37(3) of the 1971 Act and s93(3) of the 1977 Act). It is broader than them in that it saves conflicting government practice generally. The earlier provisions, by contrast, were limited to policies and practices which distinguished between New Zealand citizens or British subjects (or Commonwealth citizens) and others. As indicated, the new saving applied only to the newly introduced grounds in s21(1)(h)-(m) which included disability, age, employment status and family status. The central government policies and practices saved by that provision were also subject to the sunset and review provisions of ss152 and 5(1)(i)-(k).

  32. The savings and the review provided for in the 1993 Act related only to the policies and practices of central government as captured in Acts, regulations and government polices. As all now accept, the Rules of Racing cannot themselves come within the definitions of "Acts" and "regulations". There is the related point that Mr. Wilson QC for the Conference contends that it is a private organisation and is not subject to the Bill of Rights, since it does not come within s3 of that Act.

  33. Those savings of legislation and central government policy and practices were exceptions to the basic prohibitions on discriminatory action introduced by the three Acts. As all three statutes indicated, those prohibitions were in some cases required by international law (as with the prohibitions on racial discrimination and discrimination against women); further, related evolving international standards might have been relevant to the interpretation of the legislation as in Van Gorkom v Attorney-General [1977] 1 NZLR 535, 542-543.

  34. Given those considerations, the savings should be read narrowly, exempting only legislation enacted by parliament and by central government and central government actions. Further, if legislation and government actions were to be saved by the provisions, they should have specifically indicated their discriminatory effect or purpose. Could it conceivably have been contemplated for instance that a Crown entity’s general statutory power of employment could have been exercised in breach of the prohibitions on racial discrimination (after 1971) and discrimination against women (after 1977)? It does not seem to me that s151(1) and its predecessors could have had that effect. The Crown, as employer, was surely subject to those central prohibitions, as indicated by the standard provisions that the Crown was bound by the Acts (s2 of the 1971 Act and ss3 of the 1977 and 1993 Acts). The respondent’s argument about the scope of s151(1) would mean for instance that from 1993 the Crown would have been able to discriminate in employment on grounds of race and sex if its power to employ was conferred by statute (as appears to have been the case under the State Services Act 1962), but, given the limits on the proscribed grounds in s151(2), not if the power was non-statutory.

  35. That the protection did not extend to the current situation also appears plainly from the answer to this question: could it have been contemplated in 1993 that the review to be carried out by the Human Rights Commission under s5(1)(i)-(k) would have extended to rules such as those in issue in this case?

  36. To repeat, I conclude that the substantive provisions of the Human Rights Act did not at the relevant time, in terms of s151, "limit or affect" s30 of the Racing Act 1971 so far as the Rules of Racing were concerned. I accordingly agree that the appeal should be allowed in the terms indicated in the principal judgment.


Cases

New Zealand Racing Conference v Proceedings Commissioner [2001] NZAR 659; New Zealand Trotting Conference v Ryan [1990] 1 NZLR 143; New Zealand Trotting Conference v Nevele R Stud Ltd (CA82/82, 10 December 1982); Van Gorkom v Attorney-General [1977] 1 NZLR 535

Legislations

Human Rights Act 1993: s.5, s.44, s.151, s.152

Racing Act 1971: s.28, s.30

Rights Act 1990: s.19

Authors and other references

Paul Rishworth; [1998] New Zealand Law Review 

Representations

A P Duffy QC and C A Rodgers for Appellant (instructed by Human Rights Commission, Auckland).

W M Wilson QC and S E Lynn for Respondent (instructed by Bell Gully, Wellington)


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