Gary Taylor: Govt protected from the law

The Human Rights Act 1993 is regulated by the Government-funded Human Rights Review Tribunal that hears and decides cases on discrimination.

I saw a nice little advert on TV last night with Brodie Kane, saying: "I will step forward to stop mental health discrimination; will you?"

Well of course anyone would say yes. It is after all a prohibited ground under Section 21(1)(h) Human Rights Act 1993. This Act is regulated by the Government-funded Human Rights Review Tribunal that hears and decides cases on discrimination.

However, the lawmakers are also the law breakers and when in 2013, Ms Spencer, relying on what was known as the Atkinson case, challenged the Ministry of Health's refusal to pay her for the full care she needed to provide to her disabled son, Paul, she argued that the refusal to pay was discrimination on the basis of family status.

Funding for caregivers other than family members was available but family members living with the disabled person were not entitled to funding.

In Atkinson, the Human Rights Review Tribunal had upheld the complaint finding that the Ministry's policy was unlawful. It reserved its decision on remedies while the appeal process proceeded.

The Government appealed Atkinson to the High Court and lost. The discriminators quickly amended the New Zealand Public Health and Disability Act 2000 by inserting a new part 4A, in an attempt to protect itself into the future and retrospectively and then appealed to five Judges of the Court of Appeal. The appeal still failed because the new wording did not provide the protection expected.

The Tribunal no longer has power to award any form of monetary remedies. It can only provide a declaration that discrimination has occurred. This is a retrospective provision so that existing claims lodged at the time of the amendments passing into law have no entitlement to monetary redress. Protected by its amended law, the Ministry of Health continues to discriminate against families caring for the disabled by providing non-family caregiver funding at the rate of $17.26 per hour and family caregiver funding at the rate of $14.75 per hour (minimum wage).

What redress do these family members have against this blanket discrimination. Nothing, because of the Government's own self-made statutory protection.

So, Brodie, yes of course we would step forward against discrimination but the Government will not.

- Gary Tayler runs a Napier employment law company called Gary Tayler.