Tuesday, October 19, 2010

Housing New Zealand thinks it is above the BORA

Yesterday a case was heard in the Court of Appeal which is important for all of us. Last year, Housing New Zealand evicted three women from their state houses for being partners of gang members. They've been challenging it on human rights grounds ever since. The reason that its important is because of the argument advanced by the government:

Housing NZ should have the same legal rights as a private landlords which meant they could serve a 90-day eviction notice without cause, [Housing NZ's lawyer Karen Clarke] said.
Or, to put it another way, "Housing New Zealand thinks the BORA does not apply to it".

But this is simply nonsense. The BORA is very clear: it applies to any act by the legislative, executive, or judicial branches of the government and to anybody exercising a public function. Housing New Zealand is captured by both clauses. It is a public body, exercising statutory powers. And it is a branch of the executive. The BORA therefore applies to every decision it makes. While this includes the obligations of the Human Rights Act, it goes beyond that - in addition to not discriminating, Housing New Zealand must also respect the freedom of expression and freedom of association of tenants (oh, and not torture them - but that is less likely to be relevant). Any decision it makes contrary to those rights is unlawful and void.

Whether the tenant's claims to be the victims of discrimination are correct, and whether the tenancy tribunal can consider the lawfulness of Housing New Zealand's eviction order are open questions (though on the latter, the tenancy tribunal is likewise bound by the BORA, and the interpretation clause suggests it must, unless there is a clear legal prohibition on doing so). But the idea that Housing New Zealand, a government body, can act like a private landlord simply fails the laugh test.

[More from Dean Knight here]