Andrew Geddis: We owe it to ourselves to be outraged

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Citizens must speak up to protect the constitution when the Government fails to do so, says Andrew Geddis.

Attorney-General Chris Finlayson's warning that new family care legislation is inconsistent with the Bill of Rights Act didn't stop the Government. Photo / NZPA
Attorney-General Chris Finlayson's warning that new family care legislation is inconsistent with the Bill of Rights Act didn't stop the Government. Photo / NZPA

Given our constitution's unwritten and often opaque nature, it is easy to take it for granted. That makes it all the more important to take notice when one of the fundamental pillars of that arrangement starts getting chipped away at.

The National Government did just that last Friday, in the guise of a law stripping people of their right to go to court to challenge the legality of its actions.

This law was passed as part of a great rush of non-stop, frenetic law-making following the Budget. Enacted in but a single day, the legislation is intended to sort out the problem of paying family to look after severely disabled people.

That problem goes back a bit, so some scene setting is necessary.

Historically, district health boards refused to pay family members who chose to stay home as caregivers for their severely disabled loved ones. DHBs would, however, pay for outside caregivers to do so.

This rankled at least some family members; why should their labour (lovingly given though it was) be taken for granted, while a stranger doing the job could get paid for it?

So in 2010, some family caregivers went to the Human Rights Review Tribunal and challenged this policy on the grounds that it unlawfully discriminated on the basis of family status, which breaches the caregivers' rights under the New Zealand Bill of Rights Act. They won, and then won again in both the High Court and the Court of Appeal.

Finally, the Government gave up and recognised it was legally obliged to create a policy to pay family caregivers. Its response took two forms.

First, the Government passed legislation that gives a statutory underpinning to its new "family care policy" setting out who will (and who won't) be paid.

At the moment, that family care policy says only those relatives caring for persons aged 18 or older will be paid, but spouses looking after each other will not be. Furthermore, the payment rate for family carers will be at the minimum wage, which is less than externally contracted carers get.

So, the policy still has gaps, and even those family members whom it covers do not get paid the same as strangers doing the same work. Which has led some family caregivers to threaten to challenge the policy on the basis that it still unlawfully discriminates against them.

Well, how real was that threat? This is where things start getting a bit concerning.

Any discussion of the legal risks produced by the legislation was removed from the publicly available information about it. So not only do I not know the risk that the courts would overturn the new policy as unlawful, neither did the MPs who were asked to debate it and vote on whether to pass it.

Pause and think about that fact for a moment.

Matters then get even worse. How, you might ask, could you create a family care policy that does not risk later being overturned by the courts? The obvious answer would seem to be to make sure that the policy is not unlawfully discriminatory.

But the Government thinks there is a far, far better way to respond. In the legislation it had Parliament enact, it simply told the Human Rights Review Tribunal and the courts that they are not allowed to look at the Government's family care policy and decide whether or not it is unlawfully discriminatory.

You may need another moment to let the implications of this sink in. This legislation tells the judicial branch it is not allowed to look at the Government's decisions now and in the future as to who will be paid to see whether these unlawfully breach the New Zealand Bill of Rights Act.

In other words, the judiciary's primary function _ to declare the meaning of law and its application in particular cases _ has been nullified. Furthermore, 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 has been removed.

While the stakes may be small in the immediate case, this is about as big a deal as it gets in terms of our constitution.

For what has happened here is, as far as I know, unprecedented in recent constitutional history. And the Government's decision to take this action came in spite of Attorney-General Chris Finlayson warning that the legislation is inconsistent with the Bill of Rights Act's right to justice.

That did not stop the National Government rushing this bill through all stages of law-making and on to the statute books in but a single day, with no opportunity for public discussion or outside criticism.

As I said at the outset, it is easy to take our nation's constitution for granted. We also are lucky that we have governments that, on the whole, try to do the right thing by that constitution.

But if we do not speak up when they fail to do so, then we risk damaging something that is very important to us all.

Andrew Geddis is a professor at the University of Otago's Faculty of Law.

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- NZ Herald

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