To whom will ye liken me, and make me equal? Reformulating the role of the comparator in the identification of discrimination

The use of comparator groups has to date been central to establishing a breach of s 19 of the New Zealand Bill of Rights Act 1990. The New Zealand courts’ approach to the formulation of comparator groups admits a lack of a clear methodology. This paper argues that, in the absence of a framework guiding the formulation of the comparator, the methodology permits arbitrary and inconsistent decision-making. The flexibility of the approach risks premature exclusion of claims in reliance on intuitive rather than analytical reasoning, limiting the transformative potential of nondiscrimination provisions. Of particular concern is the involvement of matters of justification at the comparator stage. The High Court judgment in B v Chief Executive of the Ministry of Social Development is emblematic of these concerns. Recent developments at the Court of Appeal in Ministry of Health v Atkinson and Child Poverty Action Group v Attorney-General have provided some guidance, but have not gone far enough. This paper recommends that the courts depart from requiring a comparator for claims under s 19. Where comparators are necessary, it is proposed that the courts defer to the claimant’s choice of comparator, and decouple the identification of differential treatment from questions of causation.