Andrew Geddis: Law discriminated against carers of their own

Opinion

For years, family members caring for their disabled relatives fought a long, arduous battle with the government. These family carers were ordinary Kiwis like you and me, to whom fate had delivered a loved one needing life-long care and attention.

If they had been caring for a stranger, the government would pay them. If they refused to care for their relative, the government would pay some stranger to do so instead.

But if they cared for their relative, the government expected them to do it for nothing. In other words, the government relied on their natural feelings of love and commitment to ease the burden on its budget.

The problem was that this policy discriminated against the family carers purely because they were a disabled person's relative. Family members got paid nothing; non-family members got paid a full wage for carrying out the same work.

And the government is prohibited by statute – the Human Rights Act and Bill of Rights Act – from adopting policies that discriminate on the basis of "family status".

In 2012, after a protracted series of legal disputes the government fought the whole way, the Court of Appeal finally told the government that its policy was unlawful. The government then went away to work out some policy that would pay family carers for their work.

At which point you might think the family carers had won. After all, the Court of Appeal had made it clear to the government that the law prohibited it from discriminating against carers just because they were a disabled person's family member.

Surely now the government would create a new policy that paid family carers on the same basis as non-family carers. Anything else would be discriminatory, and thus unlawful.

But that is not what happened. Instead, in 2013 the government did something the Court of Appeal subsequently described as "traditionally regarded as being contrary to sound constitutional law and convention". That statement represents a triumph of judicial understatement.

For, in but a single day, the government introduced into Parliament and had enacted into law Part 4A of the Public Health and Disabilities Act. This law effectively permitted it to pay family carers something, but then stopped them from going back before the courts to complain if the government did so in a discriminatory fashion.

Note this legislation did not expressly say that the government could pay family carers in a discriminatory way. Had it done so, the government would have faced immediate political criticism for its decision to treat these ordinary Kiwis in that way.

Instead, the government was able to portray the law as generously giving payments to family carers. It was only later, when the actual details of those payments became apparent, that it became clear how discriminatory they were.

Only certain family members could get paid for their caring work. And they would be paid the bare minimum wage, a far lower rate than non-family carers.

But as the legislation now stopped family carers from returning to the courts to challenge the new policy, the government effectively was able to ignore the law prohibiting it from acting in a discriminatory way. A legal right not to be discriminated against is worth very little if you have no way to enforce it.

And so the family carers' victory, won after a long and arduous fight, was in effect snatched from them.

This law's enactment was one of the most constitutionally outrageous actions in recent times. The fact it still remains on the books shames us as a society. It should be repealed.

• Andrew Geddis is a professor of law at the University of Otago.