Sunday Insight: Govt slams door on Kiwi rights to appeal

By Susan Edmunds

The Government has declared war on judges, and regular Kiwis are caught in the crossfire. Family caregivers, Christchurch homeowners, Auckland neighbourhoods under the shadow of high-rise apartment blocks have all lost the chance to argue against decisions they feel are unfair. Susan Edmunds reports.

Ginny Walker may not qualify for funding as a carer of son Jarrod, and has no right to appeal a rejection. Photo / Getty Images
Ginny Walker may not qualify for funding as a carer of son Jarrod, and has no right to appeal a rejection. Photo / Getty Images

For nearly 20 years, solo mum Ginny Walker has had to keep a watchful eye on her son Jarrod, almost 24 hours a day.

He suffers autism, has a brain injury and has regular grand mal seizures. She hasn't been able to work full-time since he was born and has struggled to keep on top of the rent on the family's Lower Hutt home.

So when she heard the Government was planning to start paying people who look after their disabled relatives, it looked like light at the end of a long tunnel.

But almost as quickly as she and other caregivers around the country started to celebrate, reality hit. Only about a third of carers of high-needs people will qualify for the funding, and the Government will only pay $13.75 an hour, the minimum wage.

And if Walker finds she doesn't fit the Government's policy, she can't appeal against that decision. The Government has told the courts they can't examine its new family care policy.

"They've just pushed it through without any trial, talking to anyone," Walker says. "It's like a slap in the face."

Most of us assume the right to judicial review is a basic tenet of democracy. The Bill of Rights Act enshrines it in law when it says every person has the right to bring civil proceedings against the Crown - and to have those proceedings heard according to law.

And we exercise that right: the Criminal Bar Association took on the Government and won over its legal aid policy. Salisbury School in Richmond successfully challenged a decision to close it. Being able to challenge a government is one of the things that sets democracies apart from dictatorships.

But it's an "ouster clause" that Walker has to blame for that route being blocked to her and other carers - and experts say they are becoming more common as legislators try to wrest back control from courts that have become a little too fond of picking apart their decisions.


There are many cases where the rights to appeal have been removed, especially when it comes to building and development.

The Resource Management Reform Bill, designed to speed up subdivision and regional infrastructure projects and to grease the progress of the Auckland Unitary Plan, was reported back from select committee on Tuesday and is expected to be passed before the end of this year.

A second stage of reforms is still coming - submissions closed in April - on a discussion document aiming to "limit the scope of participation in consent submissions and in appeals".

Already, the ministry has the ability to "call in" a project so debate on it is heard only by a board of inquiry, not the Environment Court, with rights of appeal only on points of law. That process led to the recent sign-off of four new salmon farms in the Marlborough Sounds.

Environment lawyer Philip Milne says there has been a slow move from a regime where there had always been a right to appeal to the Environment Court, to less opportunity for review.

"There's a continuum from pretty general rights of appeal and participation through to increasing tightening up and sidelining of the Environment Court."

Despite an outpouring of submissions to the Auckland Council, the council intends to fast-track its Unitary Plan by only allowing appeals on points of law. Once it is in place, it will allow denser development in many parts of the city without the need for public notification.

Cameron Butler, chairman of the Pohutukawa Coast Community Association, is worried everything will go the way of developers. The association appealed to the Environment Court over a planned 13ha commercial and residential development in Beachlands, proposed by supermarket chain Progressive Enterprises.

The process was publicly notified because the rural land needed to be rezoned. But under the new Unitary Plan, more development of this type in Beachlands will likely not need to be notified.

Butler and his group spent $90,000 on the review process and were unsuccessful. But he says being able to appeal against big developments is important to provide checks and balances. Butler says an appeal was the only option left when no one would listen to their argument: "You don't want to spend money against your own rates money, but what else do you do? Sit back and think, 'Do what you like'?"


On the Friday that he won the 1975 election, Prime Minister Robert Muldoon sent a draft press release to the Superannuation Board advising that he planned to abolish the scheme set in place by the previous Labour government.

Companies and employees would be able to stop making contributions without legal consequences, and contributions would be returned.

He announced the change to the public the following Monday.

Muldoon expected his declaration to take immediate effect. Later, when Parliament reconvened, he planned to introduce a bill to retroactively legalise the scheme's abolition.

P.C.B. Fitzgerald, an assistant clerk at the Department of Education, conducted a one-man protest against the move, calling at the IRD office every payday and offering to make his contribution to the Super fund. He was turned down each time and so took civil action against Muldoon, the Superannuation Board, the Attorney-General, and the Controller and Auditor-General.

Chief Justice Wild famously declared Muldoon's actions were illegal as they had violated the Bill of Rights. But the mechanisms of the Super scheme were not reinstated because Wild accepted it would be only a matter of months before they would have to be stopped again.

Muldoon did not like the court constraining his prime ministerial authority. Neither did subsequent governments. And that is why they have acted to rein in the judges.

The John Key Government's enthusiasm to emasculate the courts started, arguably, on the wide flood plains of Canterbury about three years ago.

Dairy farmers needed better irrigation, Key said, and the best way to get it to them was through a water-storage scheme. He wanted an irrigation-led boom for farmers and there seemed to be evidence the region's elected councillors were not up to the job of overseeing it.

A review recommended Environment Canterbury (ECan) be handed to Government-appointed commissioners - the 14 elected councillors were out and the seven commissioners, referred to as "Dad's army" by the departing deputy chairwoman, were in.

Laws were passed to turn on its head legislation that required ECan to consider protection of a waterway ahead of its economic potential, and it removed rights of appeal to the Environment Court and effectively allowed the Minister for the Environment to decide where and when New Zealand environmental law should be applied in Canterbury.

The commissioners were meant to be temporary - ECan elections were to be held this year. But earthquakes got in the way and they now won't be held until 2016. That is despite the commissioners themselves saying the quakes should not be used as an excuse to suspend democracy for a further three years.

Since then, the implementation of the 90-day employment trial has allowed new workers to be laid off without appeal, unless they can prove discrimination has occurred.

The SkyCity convention centre agreement imposes hefty financial penalties on any future government that might dare review the approval of extra pokie machines to the casino, and the Immigration Act still allows anyone convicted of holding a visa under a false identity to be deported without appeal or review.

The new Housing Accords and Special Housing Areas Bill removes rights of appeal on developments of up to three storeys anywhere in the country where accords are signed.

And after the Christchurch earthquake, the Recovery Act offered no right to appeal decisions made by Earthquake Recovery Minister Gerry Brownlee and the Canterbury Earthquake Recovery Authority, except in very limited circumstances.

There have been 87 inquiries and complaints to the Human Rights Commission regarding the earthquake recovery, and Commissioner David Rutherford says there are real concerns about zoning decisions.

Greens co-leader Russel Norman is worried the latest round of ouster clauses is setting an alarming precedent. "I don't think we've seen this sort of attack on democracy in many years ... there's no recourse if the Government is not acting lawfully."

He says the Government is introducing Henry VIII clauses, giving itself the right, like the English king, to determine what the law is at any particular moment.

"That removes one of the key fundamentals of law, because there's no process for establishing what's good law versus what's bad law."

In Christchurch, Kaiapoi man Brent Cairns says the Government has devastated his family. After the earthquakes, his home, set on a large section near the centre of town, was declared worthless by the decision to place it in the red zone.

"Imagine being told your land is worth nothing - it's devastating."

There was no right to appeal against the decision and although the Government's offer to buy the land at rateable value was deemed voluntary, red-zone residents soon realised they faced neglected infrastructure, power and water being cut off, and banks calling in mortgages.

The only way to appeal against the decision is to argue Brownlee's actions on a point of law in the High Court. So they claim he did not consult adequately with the community.

On the face of it, Cairns' case looks a long shot but he says it's a case of human rights. "The beauty of living in New Zealand is that we've traditionally had fairness. But now, with these devastating earthquakes, things have changed. We're seeing a level of questionable ethics."


Constitutional lawyer Stephen Franks, a former Act MP, says ouster clauses are becoming more common as a response to judges' increased willingness to second-guess political decisions.

"I'm surprised it's taken this long for legislature and Government to strike back at the courts. Courts have been claiming more and more rights to reverse decisions."

A government decision once had to be seriously unreasonable before a court would reverse it, but more recently they have been reversing anything they don't much like. "Courts aren't elected," he adds.

"The loss of the right of appeal is troubling but it's a response on both sides to more judicial arrogance," he says. "In the inevitable clash, the courts will be the losers and our rights will be the losers."

Professor Andrew Geddis, of the University of Otago, agrees: "If there's one thing governments hate, it's being told they have to spend money in certain ways. In order to stop courts doing that in future, they've just told them to butt out. The law might still require them to do something but if the courts can't get involved, there's nothing that will force them,"Geddis says.

It seems that powerful governments are steamrolling those who cannot afford to fight back: "Governments are big and strong. Poor little caregivers at home looking after relatives - what can they do? There are lots of people who take on government in court and win: people like the fishing industry who can hire lawyers, there's no way government would do this to them.

"The precedent is that this has been done to people like these caregivers because the Government can get away with it."

Lawyer Mai Chen says politicians must not be allowed to play politics with the rule of law. "It isn't a National thing or a Labour thing," she says. "It's a fundamental tenet of why we like being New Zealanders."


Family caregivers have been fighting their battle for years. District health boards had refused to pay family members who opted to stay home as carers.

In 2010, a group took their case to the Human Rights Review Tribunal, saying it was unfair non-family would be paid to do something family members had to do for nothing. They won their case, then won again in the High Court and Court of Appeal.

As part of this year's package of Budget laws, a family-care policy under section 70E of the Public Health and Disability Act was pushed through in one day. Only people caring for family members aged over 18 will be paid, and spouses will get nothing. The Government told the Human Rights Tribunal and the courts they were not allowed to look at the policy to decide whether it was discriminatory.

James Dunn, of law firm Chen Palmer, says it is a particularly objectionable ouster clause because the Attorney-General, Cabinet Minister Chris Finlayson, has already said the policy breaches human rights by discriminating on the basis of relationships. The policy gives the Health Minister free rein to decide who will qualify but courts will not be allowed to keep an eye on him.

John Forman, chairman of the Carers Alliance, has two disabled children, Timothy and Holly, now aged in their 30s. They lived with Forman and his wife full-time until they were in their 20s, and are now in care most of the time.

He says the ouster clause makes it almost as bad as if they legislated away payments entirely. "It's mean-spirited and nasty in the way it's been implemented," he says.

"They could have worked out something more respectful of carer families. Whatever the situation was before the Budget, it's been totally changed by what the Government did. There's no fundamental human rights for a huge percentage of carers." Forman says carers give up a huge amount of their lives and this rule takes away their rights as well. "This is one of the powerful reasons why New Zealand needs a constitution. We coped for a while, but it's not so good any more."

- Herald on Sunday

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