Legalising discrimination

When I first received the news that government were contributing $92 million over the next four years on payments to family members who care for disabled adult family members, I was pleasantly surprised.

The initiative derives from Atkinson & Others v Ministry of Health, alternatively known as the Family Carer’s case. In this case, eight families successfully argued that the Ministry of Health had unjustifiably discriminated against them because of their family status, by refusing to pay them for the services they rendered to their disabled adult family members.

But on further reading, my pleasant surprise soured. The New Zealand Public Health and Disability Amendment Bill (No 2) restricts the remedy where discrimination is found and creates further avenues that essentially legalise discriminatory practices.

The Explanatory Note states that the reason for the amendment is to avoid the ‘unmanageable fiscal costs’ that subsequent litigation would have given the precedent set by the Family Carer’s case.

At first glance, this statement makes sense. The risk of litigation is high given the government’s poor record of recognising the work of family members in these situations. My criticism is not limited to the National Party, it applies to all preceding governments that neglected to recognise the important role these family members play in optimising the quality of life of the individuals affected.

However, this amendment is not rights conferring legislation. Rather, it is a barrier to obtaining compensation for legislation that expressly discriminates against family carers. And its couched in language that implies a benefit, when in fact it creates a limitation. The Bill states:

 “In amending the New Zealand Public Health and Disability Act 2000, the Bill allows the Government to reduce the ongoing litigation risks while also allowing the Government to implement policies of paying family carers where it wishes to do so”

Catherine Delahunty argued that this Bill discriminates against family carers who can be paid less than a non-family member for the same work; it discriminates against carers of family members  eligible for disability support who have mild to moderate needs and it denies disabled people choices over their carer which is contrary to the disability convention and the disability strategy. She further states that it legitimises discrimination against family members under 18 and against spouses.

This normalisation of authoritarianism in NZ never fails to astound me. When will we actually realise as a collective conscience that a right is not conferred by government but instead that a right exists independent of government? The audacity of the government to market their ‘good deed’ of recognising rights of family carers is rubbish since the amendment openly refuses to recognise those rights.

While the amendment does not have retrospective effect, it aims to stop any claims of unlawful discrimination concerning any care policy, that arise on or after 16 May 2013 and any claim that does arise can proceed, but the remedy is restricted to a declaration that the policy is inconsistent with NZBORA. Seriously, wtf? A declaration of inconsistency is implied in this statement since the government admits that there will be cases of discrimination. This is appalling NZ.

Post Script: This is a very brief commentary which deserves much greater attention. 

DISCLAIMER: This is my personal opinion and in no way reflects the views of my employer.

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3 comments

  1. It’d be interesting to see whether the bill would, if challenged, attract a declaration of inconsistency. In R v Hansen the Court (from memory) confirmed that the power exists to “indicate” that legislation is inconsistent with the Bill of Rights, but “indicate” appears to fall short of a declaration of inconsistency. Obiter statements in previous cases and the overseas experience suggest an implied power does exist though. Personally, I hope that one does. The bill is yuck.

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    1. Agreed. This Bill is nuts. Apparently, NZBORA report already found it breached! Im not sure if that report is publicly available yet though. h/t Catherine Delahunty

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  2. This is already in practice within the Family courts and the Child Support system. After ten years I have seen the Active discrimination by both these departments against PARENTS – myself included – and especially against fathers who just want to see their own kids.

    The Human Rights Commission is currently NOT permitted to investigate the Govt. for any such breaches.

    I have letters and emails from our puppet Human Rights Commission to this effect, stating they are NOT PERMITTED to investigate breaches of Human Rights or the active discrimination by Govt or Govt Departments on such matters.

    Many parents find the direct breaches of their rights abhorrent, but as I have discovered directly – they have no available means to make complaint against the responsible Govt Department.

    Why have a Human Rights commission at all. In its present form, it is simply a charade – merely giving the impression the people have some means of recourse.

    From what I am reading here in these latest changes effecting Family Carers – this total removal of any accountability and or responsibility by Govt for breaching Human Rights conventions – is being further entrenched in direct legislative changes.

    If we are to have a just and democratic society, all people living within it, including the GOVT and its officers – MUST be accountable to all the legislation and United nations agreements and conventions on Human Rights that we are currently signed up to.

    These very Human Rights Conventions that we signed into are not in themselves discriminatory. They do not state that one section of society – ie Govt and its officers should be exempt.

    NO – all people living in New Zealand – including Govt officers must protect the PEOPLE from beaches of their HUMAN RIGHTS – specifically any Direct Discrimination – if we do not demand this from our Government as the bare minimum, we are no better off than those living in dictatorships with NO rights at all.

    What other changes are being rushed through under urgency? These latest changes were sneaked through in just one day with NO Public Consultation and that frankly is a disgrace.

    What other changes are being sneaked through in the currently proposed changes to our very Constitution – which currently protects the rights of the people by encapsulating those historical rights as enshrined in the magna carter and as should be demanded by any modern society today.

    We most certainly should not allow Govt to remove our right of redress especially if its the very govt trying to protect itself.

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