Mahvesh Ikram
Dame Silvia Cartwright
Former Governor-General and High Court Judge Dame Silvia Cartwright has slammed the retrospective nature of the Equal Pay Amendment Act 2025, saying it was likely to spark “a great deal of litigation” as various groups tried to ascertain the basic principles behind the new law.
She was speaking at the first hearing of the People’s Select Committee, set up by former National MP Dame Marilyn Waring to inquire into the government’s controversial changes to pay equity legislation.
Cartwright said the new legislation undermined key legal principles such as fairness, legal certainty and the rule of law. “Rule of law means that public powers act within the constraints set up by law, in accordance with the values of democracy and fundamental rights and under the control of independent and impartial courts.”
She said New Zealand was internationally recognised for upholding and promoting the rule of law but the way that the Equal Pay Act 2020 was amended would damage the country’s “highly-regarded” reputation. Nor would the courts be happy because “there will be more claims, there will be more attempts to get around these provisions and so it’s going to cause problems in areas that weren’t really thought of.”
Re-igniting some of the now-extinguished 33 pay equity claims would be a challenge, Cartwright said, because the thresholds were now higher. “Work must be performed by at least 70% of female workers who have been in there for 10 years, so it’s a major hurdle to cross compared with the 60% threshold that was there previously, and that had no time constraints attached to it.”
The evidential hurdle would be problematic. “You must [now] gather your evidence before you actually get it to the court compared with the [previous] ‘arguable’ threshold, which simply means, as we lawyers say, prima facie – or on the face of it – there is an arguable claim.”
Cartwright also criticised the new legislation’s requirement for claimants to select a comparator, which she said was akin to putting a “sinking lid on female pay”. Under the amended laws, claimants need to find a job in a male-centric workforce requiring a similar level of skills, responsibility, experience and effort within the same employer or industry – a requirement Cartwright said would have an effect of “re-enforcing the low pay”.
“You can’t go across to another field which has similar skills, perhaps similar education or perhaps a similar levels of danger but is not female-dominated.”
Effectively, Cartwright said, the new law was asking claimants to compare women-centric industries with each other.
It also gave employers increased powers to resist claims. Cartwright said previous legislation allowed employers to accept a claim but tell employees that it would be paid when the business could afford it. Under the new legislation, this cannot happen.
The People’s Select Committee comprises 10 female ex-politicians. Its hearings will continue until October.
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