On any number of counts, the New Zealand Public Health and Disability Amendment Bill represents a particularly sorry piece of law-making.
Both its content and the manner in which it made its way through Parliament warrant the strongest criticism. The bill, which allots $23 million annually to people who care for disabled adult family members, was passed under urgency, denying public input through select committee hearings. To add insult, official advice from the Health Ministry on the legislation was heavily censored, with whole sections of the 28-page document blacked out.
The legislation's contents see the Government again exercising its impulse to clear the decks when it comes across a situation that is out of the ordinary. In the process, constitutional niceties are dispensed with. The courts can be over-ridden and the checks and balances that should circumscribe Parliament are removed.
In this instance, the Government is responding to a Court of Appeal decision that its policy of not paying family carers to provide support services to disabled family members constituted unjustifiable discrimination on the basis of family status. The legislation limits the liability of the Government. Payments of the minimum wage are limited to adults assessed as having high or very high needs. It is estimated that the cost would jump to $65 million a year if payments were extended to all carers and all disabled adults.
In the normal course of events, those rendered ineligible by the legislation would surely mount a legal challenge to see if the Government's policy complied with the verdict of the Court of Appeal. But under the legislation people can no longer bring unlawful discrimination complaints about the new law or any family care policy to the Human Rights Commission or take court proceedings. In the words of the Chief Human Rights Commissioner, David Rutherford, "This sends a chilling message to anyone seeing litigation as a road to solving issues relating to the protection of their economic and social rights."
Unsurprisingly, the Attorney-General, Chris Finlayson, found that the clause in the legislation which prevents carers from making a legal challenge breached the Bill of Rights Act because it limited the right to seek a judicial review. Not extending payments to all family carers could also be a breach of the Bill of Rights Act, he said. The Government, intent on limiting future claims, ploughed on regardless.
Constitutional law expert Professor Andrew Geddis has labelled the Government's actions as "trampling all over a basic foundational principle of our constitutional order".
This is not the first time that it has nullified the role of the judiciary, both in interpreting and applying the law and as an avenue of public recourse. Legislation governing the response to the Canterbury earthquakes dictated that the decisions of individual government ministers could not be challenged in court. Similarly, the decisions of an authority set up to fast-track applications for facilities for the Rugby World Cup could not be reviewed by the High Court, except on points of law. In the latter case, at least, the legislation went through a select committee. In this instance, even that has been deemed superfluous.
It could be argued the World Cup and the Canterbury earthquakes were events out of the ordinary that demanded such an urgent response setting aside constitutional nuance. But that can hardly be said to be the case in terms of improving the support of disabled people and their families. The Government's unseemly focus on reducing litigation risk has triggered a shabby piece of legislation and a deplorable flouting of parliamentary process.