The New Zealand Human Rights Commission; Insurance and human rights Michael J V White michaelw@hrc.co.nz

Overview Human Rights in New Zealand The New Zealand Human Rights Commission Complaints received Insurance and discrimination Broader responsibilities – business and human rights

International Human Rights Context Universal Declaration of Human Rights Signed on December 10 1948 150 countries An historic document that sets out a common definition of human dignity and values 9 core human rights treaties

New Zealand context Core human rights legislation Treaty of Waitangi New Zealand Bill of Rights Act 1990 Human rights Act 1993 Privacy Act 1993 Economic, Social and Cultural rights in a variety of legislation

NZ Human Rights Commission Is an Independent Crown Entity, funded by Government but operating autonomously “A status” accreditation

Commission’s functions Main functions to advocate and promote respect for, and an understanding and appreciation of, human rights in New Zealand society to encourage the maintenance and development of harmonious relations between individuals and among the diverse groups in New Zealand society to promote racial equality and cultural diversity to promote equal employment opportunities (including pay equity) to promote and protect the full and equal enjoyment of human rights by persons with disabilities. Also

Individual complaints Provides a process for resolving disputes about unlawful discrimination May offer mediation The Commission cannot investigate or make a decision/finding on the merits of an individual complaint. If a complaint is not resolved at mediation a complainant can file a claim with the Human Rights Review Tribunal. Independent judicial body OHRP the power to award damages and other remedies for a breach of the Human Rights Act.

Ground of Discrimination Age Colour Disability Employment status Ethical belief Ethnic or National Origins Family Status Marital status Political opinion Race Religious Belief Sex Sexual Orientation

Discrimination must occur in an area of public life Includes: Employment Education Goods and services Public places Vehicles and facilities Land, housing and other accommodation Public sector activity

Complaints 2015-2016 In the year ending 30 June 2016, the Commission received a total of 5,336 enquiries and complaints, of which 1,274 were complaints which had the potential to fall within the scope of the unlawful discrimination provisions of the Human Rights Act.   In the 12 months ended 19 September 2016, the Commission received in the order of 30 enquiries and complaints which related to insurance”.

The Human Rights Act and insurance? Insurers cannot refuse to provide insurance to people, or treat them less favourably, by reason of any of the prohibited grounds of discrimination But Human rights Act acknowledges that insurance is about the classification of risk Some of the grounds are particularly relevant to how risk is classified

Exception … Distinction on grounds of sex, disability and age allowed, if: based on actuarial or statistical data on which it is reasonable to rely In relation to disability, if no data is available it must be based on reputable actuarial or medical advice or opinion (Section 48 of the HRA) Discuss reasonableness as well here.

Cannot refuse to insure people because of any of the grounds in the act can offer policies on different terms and conditions in relation to sex, disability and age often by difference in premiums, relying on exclusion clauses or restricting coverage of pre-existing conditions

Defining cover Exclusion clauses that apply to all policy holders are generally not unlawful define cover everyone runs the risk of developing an excluded condition in the future Pre-existing conditions may be justified as no refusal to insure assessment should take into account an individual’s circumstances

Justifying different treatment Should comprise both quantitative and qualitative aspects Relevant local experience must be taken into account Credibility of data Where no data satisfied no data available satisfied it is reasonable to rely on advice or opinion Underwriting manuals; must ensure up to date and reasonable, consider local conditions

Medical advice or opinion Must be relevant to applicant’s disability Include information from person’s medical practitioner with consent May be appropriate to seek advice of a specialist in some cases – mental illness for example Any justification must be documented

Mental Disability Cover should be available for mental disability on the same terms and conditions as other forms of disability Underwriters should assess in same way Reputable medical, psychiatric and actuarial advice Assessed on individual basis taking into account treatment and who treated the applicant Any increased premium or imposition of an exclusion clause must be justified in same way and to same standard as for physical disability

Reinsurance Exempt from the Human Rights Act Dealing with companies not individuals The requirement to always offer cover does not apply in international markets Reinsurers based offshore

Insurance complaints Particularly on grounds of age and disability (mental health) Age complaints generally about higher premiums for travel or income protection Disability (mental health complaints) generally relate to situations where insurance is declined outright Legality of exclusion clauses

Some examples A complains that his travel insurance cost more because of his age (over 65), as the online application process won't recognise applications by people aged more than 65yrs, forcing them to apply by phone, and so losing the significant online booking discount. B has multiple sclerosis. He is having difficulties in negotiating life insurance with his insurance company. Feels he is being discriminated against because MS does not shorten a sufferer's expected life-span. X complains about the company’s Income Protection Insurance group scheme not being available when people turn 65 and keep working Y complains his health and life cover insurance policy does not cover intersex people (Klinefelter's syndrome) and genetic discrimination.

Broader Human Rights considerations United Nations Guiding Principles on Business and Human Rights 3 pillars: Protect, Respect and Remedy OECD Guidelines Complaints to National Contact Point regarding insurance companies

Thank you!