Attorney-General v Daniels [2002] NZCA 187; (2002) 16 PRNZ 771 (31 July 2002)

Last Updated: 16 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA84/02

	BETWEEN	HER MAJESTY’S ATTORNEY-GENERAL
		Appellant

	AND	LINDA SHIRLEEN ANNE DANIELS AND OTHERS
		Respondents

Coram:	Gault P Tipping J McGrath J
Appearances:	R E Harrison QC for Human Rights Commission
Judgment (on the papers):	31 July 2002

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

[1] The Human Rights Commission applies for leave to intervene in this appeal asking to be heard on one aspect of the judgment under appeal (M1615-SW99, 3 April 2002, Baragwanath J). Neither the respondents nor the appellant oppose the application for intervention. At the request of the Commission the application is being determined without an oral hearing.
[2] The Commission’s statutory functions under s5(2)(j) of the Human Rights Act 1993 (as amended in 2001) include applying to be appointed as intervener, or by its counsel to assist a court or tribunal if, in the Commission’s opinion, that will facilitate a primary function of the Commission namely:

to advocate and promote respect for, and an understanding and appreciation of, human rights in New Zealand society (s5(1)(a));

[3] In this appeal the Commission’s concern is with a finding in the High Court concerning the scope of the prohibition against discrimination under s19 of the New Zealand Bill of Rights Act 1990 (as amended in 1993) which incorporates grounds of discrimination appearing in s21(h) of the Human Rights Act. The context is an appeal in a case concerned with the lawfulness of a governmental policy in relation to education of children with special needs. Under the policy, known as mainstreaming, such children are, in general, educated in regular class settings in state schools rather than in special schools or special units in regular schools. The respondents, who were plaintiffs in the High Court, are a group of parents of children with special education needs. They contended in one cause of action that the mainstreaming policy is unlawful, being in breach of the right to freedom from discrimination under the Bill of Rights. The Judge, while upholding other aspects of the respondents’ claim, rejected their contention that although the legislation in general proscribed “failures to treat the same”, its application to their circumstances proscribed a “failure to treat differently” persons who required different treatment of their educational needs in order to achieve equality. The Commission wishes to intervene in the appeal to this Court to submit argument in favour of a contrary interpretation of the statutory anti-discrimination provisions to that of the Judge.
[4] The respondents have themselves given notice of their intention to challenge the High Court’s findings on this issue. The correctness of the Judge’s interpretation of this aspect of the legislation is accordingly a live issue between the parties to the appeal. The Commission’s stance would, it seems, support that of the respondents.
[5] Having regard to the statutory functions of the Commission the Court is satisfied it can assist the Court on the issue concerned in terms of the Court’s approach to applications to intervene set out in Drew v Attorney-General [2001] 2 NZLR 428. Leave is granted to the Commission to intervene by submitting a written submission to the Court 21 days prior to the date set for hearing, serving a copy on the parties to the appeal. The appellant is directed to serve copies of the Notice of Appeal and Case on Appeal, and the parties are directed to serve copies of all other documents they file in respect of the Appeal, on the Commission.
[6] Counsel for the Commission in an accompanying memorandum has expressed the desire to submit oral argument, but in accordance with its approach in Drew the Court will reserve its position on whether it will hear the Commission orally and if so what time limits it will set. Those questions can be further addressed by counsel if desired at the commencement of the substantive hearing. All questions of costs in relation to the intervention are reserved.

Solicitor for the Commission:
D J Fleming, Human Rights Commission, Auckland