The Aoteoroa New Zealand Human Rights Lawyers Association ('HRLA') considers that the Public Health and Disability Amendment Act (No 2) is discriminatory and it supports repeal of the legislation.
Background to the legislation
Part 1A of the Human Rights Act 1993 establishes a procedure for challenging government legislation, regulations and policy. Using their powers under Part 1A, in Ministry of Health v Atkinson, the Human Rights Review Tribunal, High Court, and ultimately the Court of Appealconsidered whether a policy under which family carers of disabled adults were not paid for providing support services was discriminatory, because non-family members doing the same work would be paid. The Court found the policy did amount to unlawful discrimination on the basis of family status, which is a prohibited ground of discrimination under the Human Rights Act 1993.
Passing of legislation under urgency is concerning
The Public Health and Disability Amendment Bill (No 2) was passed under urgency and without prior notice, one day after it was introduced in the House of Representatives. The reason given for urgency was that the bill clarified the Government’s liability for paying families looking after disabled adult children in the wake of the Budget. However, the effect of the bill being passed under urgency is that the legislation was not subject to the usual checks and balances. Instead it was passed through all its stages in one sitting, and without any public input through select committee hearings. HRLA has serious concerns about the use of urgency in these circumstances.
Act discriminates against parents and spouses of disabled persons on the basis of family status
The effect of the Public Health and Disability Amendment Act (No 2) 2013 (“the Act”) is to reverse the decision of the Court of Appeal in Atkinson. The Act retrospectively validates the Ministry of Health’s family care policy. HRLA agrees with the Human Rights Review Tribunal, High Court, Court of Appeal, and the United Nations Committee on the Rights of Persons with Disabilities that the legislation unlawfully discriminates against parents and spouses of disabled persons on the basis of their family status. Our view is that individuals carrying out care for disabled family members have the same right to be paid as non-family members.
The Ministry of Health’s view is that the law has retrospective effect and withdraws rights of judicial review and access to the Human Rights Review Tribunal. HRLA agrees with the Court of Appeal’s recent decision in Attorney-General v Spencer that the Act does not exclude liability for past breaches of the Human Rights Act 1993. Even if it were Parliament’s intention for the Act to apply retrospectively, the wording of the Act was not sufficiently clear enough to exclude challenges of past decisions.
The Act does however prevent any person from applying to the Courts to review the current family care policy on the grounds of discrimination. It therefore limits the right of courts to exercise their judicial function to review government policy. HRLA is concerned that this impedes on the separation of powers between the judiciary and legislature, which is a fundamental tenet of constitutional law. The Act also shows a concerning lack of commitment by the government to its human rights obligations.