Human Rights Act 1993, ss 53, 55, 65 – policy restricting access to student accommodation to those aged under 20 – claim of discrimination on the grounds of age and indirect discrimination on grounds of disability – does exception in relation to hostels (s 55) apply? – how is indirect discrimination claim under s 65 impacted by s 55 exception?
Zhang v Victoria University of Wellington [2023] NZHRRT 36
Taiming Zhang was a student at Victoria University of Wellington in 2020 and 2021. In 2020, Zhang (aged 21 years) resided at Capital Hall, a catered hall of residence in central Wellington. He wished to reside at Capital Hall again in 2021.
In August 2020, the university adopted a new policy for the 2021 academic year which restricted access to its catered halls to those under the age of 20. This meant Zhang was not eligible to live at Capital Hall or in any of the other catered halls in the central Wellington area in 2021.
Zhang has arthritis in his big toe which makes walking painful. Most of the age-restricted catered halls were in areas of central Wellington with reasonably flat access to public transport to the university. In contrast, access to the university from student accommodation available to older students was more likely to be on hills and thus more difficult for someone with Zhang’s disability.
Section 53(1) Human Rights Act 1993 (HRA) sets out a prohibition on discrimination in housing and accommodation. The prohibited grounds of discrimination are set out in s 21(1) HRA and include both age and disability. Section 65 HRA contains a general prohibition against indirect discrimination.
Zhang brought a claim in the Human Rights Review Tribunal, claiming that the university’s new age restriction policy was directly discriminatory on the grounds of age, in breach of s 53 of the HRA. He also claimed the policy indirectly discriminated against him on the grounds of disability, in breach of s 53(1)(d) and s 65 HRA.
The university relied on s 55 which relevantly provides, “Nothing in section 53 shall apply to accommodation in any hostel or in any establishment (such as a… university), or in any part of a hostel or any such establishment where accommodation is provided only… for persons in a particular age group”.
Zhang argued that s 55 did not apply as the university paid for residential advisers to reside in each of the catered halls and the age restriction did not apply to them.
He also argued that if s 55 did apply, his claim under s 65 that the policy indirectly discriminated on the grounds of disability was still open.
Applicable principles: Human Rights Act 1993, ss 53, 55, 65 – policy restricting access to student accommodation to those aged under 20 – claim of discrimination on the grounds of age and indirect discrimination on grounds of disability – does exception in relation to hostels (s 55) apply? – how is indirect discrimination claim under s 65 impacted by s 55 exception?
Held: Zhang’s direct discrimination claim on the grounds of age under s 53 fails. The exception in s 55 HRA applies. There is no reason for ‘part’ not to be given its ordinary meaning. The rooms occupied by students subject to the age policy form ‘part’ of each catered hall. Zhang’s indirect discrimination claim under s 65 also cannot succeed. If direct discrimination on the grounds of age is not unlawful, then an indirect discrimination claim also falls outside of the s 65 jurisdiction, even if the claim is based on a different prohibited ground (disability).
0 Comments