Brian Rudman: Law protecting Government, not disabled

Equally concerning is the context in which the Government decided it was permissible to ride roughshod through the Bill of Rights, says Rudman. Photo / Mark Mitchell

For much of the last century, we used to bask in the title of social laboratory of the world. New Zealand was mentioned in the same breath as the Scandinavian countries as pioneers in working collectively to care for each other.

How far we have fallen.

On Monday the issue of beggars came before an Auckland Council meeting. But the discussion wasn't about providing more emergency shelters, or eliminating root causes. Instead, it was about regulating a growth industry. The venue was a hearing into a new "nuisance" bylaw. One submission proposed that the council, after consulting the beggars, draw up a "code of conduct" which the panhandlers would be expected to observe. Another wanted them booted off the streets altogether.

This came close on the heels of the Government rushing through legislation that discriminates against the disabled - and includes a clause deliberately closing off any right of appeal to the Human Rights Commission or courts of law.

This, despite a report from Attorney-General Christopher Finlayson which concluded that preventing a person from challenging the lawfulness of a decision on the basis that it was inconsistent with the Bill of Rights Act "cannot be justified" under the Bill of Rights Act.

Constitutional law expert Professor Andrew Geddis has thundered about the unconstitutionality of the new law. How it nullifies the judiciary's primary function of declaring the meaning of law, and removes "the judiciary's role as protector of individual citizens in terms of ensuring that they are being treated in accordance with the laws of the land".

Chief Human Rights Commissioner David Rutherford is equally outraged, warning that "this sends a chilling message to anyone seeing litigation as a road to solving issues relating to the protection of economic and social rights".

Equally concerning is the context in which the Government decided it was permissible to ride roughshod through the Bill of Rights. As Disability Rights Commissioner Paul Gibson succinctly put it, "this legislation clearly prioritises the reduction of ongoing litigation risks [for the Government] over providing a better support system to make sure disabled people and their families have good lives".

In 2001, a group of parents complained to the Human Rights Commission that the Ministry of Health's refusal to pay a care allowance to parents looking after adult disabled children was discriminatory. After interminable delays, in 2008, the Human Rights Review Tribunal declared the practice of refusing to pay parent-carers on the same basis as carers from outside the family was a breach of the Human Rights Act.

The ministry cried poor, and appealed first to the High Court and then the Court of Appeal. It lost both times. After considering a further appeal to the Supreme Court, the Government has decided, instead, on the current legislation to restrict the human rights of the disabled. As though they don't face enough obstacles already.

It's a "miserly" and "half-baked" scheme, says 76-year old Cliff Robinson, who has led the long battle on behalf of his two adult children. It will allow the 1600 or so "high or very-high needs" disabled adults, to employ a relative who is not a spouse or partner for up to 40 hours a week on the basic wage.

The act allows the "relative" pay rate to be lower than that for an outside provider. The Government has budgeted $23 million a year for the job, at the bottom of the $17 million to $593 million a year scaremongering range that the ministry used in the various court cases.

The Disability Rights Commissioner says New Zealand is "behind in fulfilling our obligations under the United Nations Conventions on the Rights of Persons with Disabilities". He contrasts what happened under urgency in Wellington with the $23.2 billion national disability insurance scheme being rolled out across Australia over the next seven years.

Further details about DisabilityCare Australia were announced in last week's Federal Budget. Funded by all taxpayers through the Medicare health insurance scheme, DisabilityCare, when in full operation, will provide "long-term, high-quality support for around 410,000 people who have a permanent disability that significantly affects their communication, mobility, self-care or self-management".

It offers a lifetime approach, with funding that is long-term and sustainable, giving both the disabled and their carers "peace of mind". It will allow people to "choose how they get support and have control over when, where and how they receive it. For some, there may be potential to manage their own funding". The disabled will be supported "to live a meaningful life in their community to their full potential".

The explanatory documentation highlights "a core aim ... is to better support families in their caring role and to ensure that role is nurtured".

It sounds like the sort of leadership New Zealand once displayed in its social laboratory years, nay a century ago. What would the great Liberal and Labour social pioneers think of the cripple-bashing that occurred last week?