Many organisations choose to hire out their venues to the public when the venues are otherwise unused. While this can be an excellent way of bringing in funds, there are some pitfalls to be aware of including intentional or unintentional discrimination.
Discrimination on the basis of religion
In 2012, a Catholic Priest in the United Kingdom sought to ban its church hall being used for ‘spiritual yoga’, [1] which was thought to be incompatible with the Catholic faith. Even if the yoga was incompatible, excluding the yoga teacher on the basis of religion would be illegal in New Zealand and grounds for a complaint of discrimination.
It may seem counter-intuitive that one religion cannot prevent people from an incompatible religion using their facilities, yet that is what the law says. [2] Anyone who provides goods, facilities or services to the public or a group of the public cannot discriminate based on religion.[3] This includes treating someone less favourably based on religion when providing goods, facilities, or services.
If someone feels they are being discriminated against, they are entitled to make a complaint to the Human Rights Commission[4] or to take the matter to the Human Rights Review Tribunal.[5]
The legal test for whether behaviour is discriminatory is[6]:
- Is there differential treatment or effects as between person or groups in analogous or comparable situations on the basis of a prohibited ground of discrimination; or
- Does that differential treatment impose a material disadvantage.
If we apply this to the example of the church above, the yoga teacher may have been able to establish that they were discriminated against if the church hall had been readily hired by other members of the public or other religious groups. Banning the yoga teacher would arguably then have been ‘differential treatment’.
Can a church legally limit who uses its venues?
Section 44 of the HRA says it is unlawful for any person who supplies goods, facilities, or services to the public or to any section of the public to refuse or fail on demand to provide any other person with those goods, facilities, or services, by reason of any of the prohibited grounds of discrimination. Religion is a prohibited ground of discrimination. When it comes to a venue, the key word is ‘public’.
Going back to the example above, one option would be for the church to have a policy that its facilities are for private use, but exceptions can be made on a case-by-case basis and subject to availability. This would give the church some discretion regarding who uses its facilities and would mitigate against accusations of discrimination. The downside is that the the venue might miss out on valuable funds from hiring its venues out publicly.
Another option would be to limit which parts of a venue or facility are able to be rented out.
This article is not a substitute for legal advice and our experts here at Parry Field Lawyers would be happy to answer any of your questions.
We have assisted a number of churches with ensuring their rental provisions comply with the law – we would be delighted to assist you to. If you would like to discuss your options, please contact stevenmoe@parryfield.com or annemariemora@parryfield.com.
[1] https://news.sky.com/story/catholic-church-bans-hindu-yoga-classes-10468941#:~:text=Instructor%20Cori%20Withell%20said%20the,was%20a%20Hindu%20religious%20activity.
[2] Human Rights Act 1993, section 21(1)(d).
[3] As above, section 44(1)(a) and (b).
[4] https://tikatangata.org.nz/resources-and-support/make-a-complaint
[5] https://www.justice.govt.nz/tribunals/human-rights/
[6] Ministry of Health v Atkinson [2012] NZCA.
