The Majestic Equality of Disenfranchisement: Assessing the Right to Freedom from Discrimination in the Light of the Ngaronoa Litigation

Abstract

The right to freedom from discrimination in New Zealand is underpinned by equality, one of the most influential, yet amorphous principles in political theory. This paper argues that the failure of New Zealand courts to unpack the normative backing of the anti-discrimination guarantee leaves discrimination law normatively impoverished, enabling arbitrary and inconsistent reasoning. The decisions of the High Court in Taylor v Attorney- General and the Court of Appeal in Ngaronoa v Attorney-General thus reflect a wrong turn in New Zealand discrimination law, taken in the case of Ministry of Health v Atkinson. Because discrimination law necessitates moral judgment, this paper argues that the courts have been wrong to treat discrimination law as a largely amoral enterprise. Seen in this context, it should be unsurprising that the decisions of Taylor v Attorney-General and Ngaronoa v Attorney-General appear to mask moral judgments behind a façade of empiricism and common sense, and reveal differing conceptions of the principle of equality.

Keywords: discrimination, disenfranchisement, equality, voting rights

JEL Classification: K00