1. The New Zealand Human Rights Commission; Insurance and human rights
Michael J V White

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

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

4. 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

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

6. 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

7. 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.

8. 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

9. 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

10. Complaints
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”.

11. 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

12. 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.

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

21. 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.

22. 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

23. Thank you!