Scoop Election 08: edited by Gordon Campbell

Gordon Campbell on the government’s trampling on the rights of family carers

May 21st, 2013

Don’t want to be unduly alarmist about this, but we seem to have an outlaw government on our hands – if by that we mean a government willing to suspend the ability of citizens to seek the courts’ protection if and when the government violates freedoms set out in our Bill of Rights. So far this year, even the august likes of Dame Anne Salmond and Sir Geoffrey Palmer have been moved to protest against the curtailment of the rights to protest about oil and mining exploration. Thanks to Energy and Resources Minister Simon Bridges, Voltaire’s famous saying has now been amended to read: “I disapprove of what you say, but I will defend to the death your right to say it – that is, so long as you stay 500 metres away from me while you’re saying it. Or I’ll jail and fine you, big time.”

This has just been a warm up for the government actions over the payment due to the carers for disabled children. Over on Pundit, Otago University law professor Andrew Geddis has done a great job of setting out the background to this latest piece of constitutional banditry. If you haven’t read it already, please do. Ironic indeed then that at yesterday’s post-Cabinet press conference, Prime Minister John Key cited more than once the need for government to strike a “balance” between the family’s responsibility to care for their children, and the state’s responsibility to support them in that work. And that’s ironic because…for years, the Crown fought tooth and nail to avoid paying family carers anything at all for the work they do. That was so right up until the Court of Appeal ruling last year that the government’s stance was a violation of the right of the family carers under the Bill of Rights Act (BORA) not to be discriminated against on the grounds of their family status.

Over the weekend we saw where the new “balance” is now to be struck. Under urgency, the government has rammed through a piece of particularly mean-minded legislation whereby the government and local DHBs would be liable to pay the existing group of family members only the minimum wage for caring for their disabled children – and even then it would seem, only for children over 18 years of age. If this was not outrageous enough, the Bill went further – as Geddis explains – and exempts the authorities from being challenged in court ever again on such matters. Geddis first cites the relevant aspect of the new legislation, before going on to explain its implications:

“[When this law kicks in], no complaint based in whole or in part on a specified allegation [that the policy unlawfully discriminates] may be made to the Human Rights Commission, and no proceedings based in whole or in part on a specified allegation [that the policy unlawfully discriminates] may be commenced or continued in any court or tribunal.”

You might need a moment to let the implications of this sink in. By passing this law, Parliament is telling the judicial branch that it is not allowed to look at a Government policy (not, note, an Act of Parliament) in order to decide whether it is in breach of another piece of legislation enacted by Parliament (the New Zealand Bill of Rights Act 1990). 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.

Yikes. And in case you may be wondering about the legal foundation on which the government has acted…keep on wondering. Because much of the relevant legal advice from the Attorney-General has been rather spectacularly with-held.And with-held not merely from the public, but from the MPs who voted the Bill into law, evidently in the dark when it comes to its legal rationale. With this so called “balance” in mind, I asked Key at yesterday’s press conference…given that the avenue of going to court had now been closed, what avenue did he think a family carer could now pursue, if faced with discrimination by the government, or by their local DHB?

“The avenue of making their feelings publicly known,” Key replied. His government, he added, has allocated $94 million “in additional funding” in this area. Lots of “permutations” could impose a “significant liability” on future governments. In his view, the perceptions where the state’s responsibilities start and stop, and where family responsibilities start and stop, will vary.

You bet. But on the constitutional point…given that the Court of Appeal case last year was won on the grounds that the government’s position infringed BORA, was he confident that the government’s current position would not be vulnerable to the same challenge – given that it also discriminates [on the grounds of family status] against rights that exist under BORA? “We’re as confident as we can be,” Key replied. “And in the end it’s our responsibility as the government to pass the law that we believe reflects what is appropriate.” But if Key was so sure of the government’s constitutionality of its actions, another reporter asked, why had so much of the legal advice been with-held? She got the usual fob-off when the PM is under pressure: don’t ask me, ask the Minister. “You’ll need to take that up with the Attorney-General.”

What is “appropriate” comes down, in the end it seems, to a financial calculation and not a moral one. Paying all groups of family carers, the government believes, would entail what the legislation describes as “unmanageable fiscal costs.” On this point of affordability, Key referred somewhat mysteriously to the Ministry of Health being currently engaged in looking into “another category” of potential claimants, on whom it will be reporting back sometime within the next 12 months. Under the new rules, while family carers looking after their disabled offspring over 18 years of age will be paid, while those looking after their disabled spouses will not. It would be interesting to see the legal argument for that distinction.

Until hauled back by the courts, the government had previously tried to walk away from this direct payment aspect of its social contract with the disabled. The historical reality is that some families of disabled children are doing a job that used to be carried out in state residential facilities – some of which have been closed (with related savings for the government) amid a lot of empty rhetoric about the superiority of home care, within the community. In the Budget, the government made it clear how it really valued that job – as being worthy of only minimum wage rates at most, and then only for those looking after adult family members, and/or the most severely afflicted. In future, anyone aggrieved by this new version of the social contract will be legally forbidden from going to court.

Can the executive really exempt itself from legal challenge in this fashion? This sorry episode is a really good argument for why the NZ Bill of Rights needs to be more deeply entrenched.

ENDS

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    1. 12 Responses to “Gordon Campbell on the government’s trampling on the rights of family carers”

    2. By dan on May 21, 2013 | Reply

      Well, I just sent an email to that other Campbell asking him to cover this. Basically, if we had a constitution, this is John Key wiping his posterior with it. Probably why we need one.

    3. By RJL on May 21, 2013 | Reply

      Dan,

      It’s not really an argument as to why we need a written constitution. Afterall, there is a written BORA that this legislation violates, and that this government doesn’t care about.

      This is an argument that we need a different government…and the sooner the better.

    4. By hilary on May 21, 2013 | Reply

      Dan,
      Just don’t bother with TVNZ, my faith in them dissipated with their 6pm One News broadcast on Saturday which included two of the most blatant PR pieces I’ve ever seen on telly, let alone the news.

      Not to say I am in any way a conspiracy theorist, but the questions raised surrounding a state owned broadcaster airing such propaganda make me very, very uncomfortable

    5. By George on May 21, 2013 | Reply

      It’s a terrible abuse of the Crown’s prerogative! What’s more, it is startling how little coverage this issue has received in the mainstream news. I woke up this morning expecting to read some informed commentary on this issue and was greeted by some rubbish written by By Audrey Young and little else of substance. Maybe an entrenched bill of rights isn’t such an undesirable thing when the only other thing to hold Government to account is an ill-informed and apathetic public.

    6. By Dan on May 21, 2013 | Reply

      Well, I’m not short of arguments for a new government so I’ll give you that. I am actually quite impressed by their consistency; I literally disagree with absolutely everything this government is doing. Bonus asshat points for that I guess.

      A constitution would be a good thing though.

    7. By Delia on May 22, 2013 | Reply

      I am a family carer, and yes I am annoyed at being treated as some kind of annoyance by this govt, but keep on looking after your adult son for absolutely nothing…it does occcur to me that they will do this over and over again whenever the court goes against them. Throw them out.

    8. By david on May 22, 2013 | Reply

      “Don’t want to be unduly alarmist about this, but we seem to have an outlaw government on our hands” – no doubt about that!

    9. By Mike on May 22, 2013 | Reply

      The National Party and all its members are the pits!
      Do none of its MPs have the moral courage to vote against it? NO, so they are all equal in our contempt! And that goes for Dunne too!

      Yet another example of this government picking on the most vulnerable in society. They MUST NOT be allowed to get away with it!!

    10. By Mike on May 22, 2013 | Reply

      Don’t forget ACT’s part in this.

      ” In the past ACT saw itself as a protector of Parliamentary process to some degree and would not, I think, have supported the urgency. Under John Banks, of course, any pretension to other than naked self interest is gone.”

      John Banks you have no moral compass!

    11. By Rick Bryant on May 23, 2013 | Reply

      Yes, they’re the Runaway Right, utterly heedless in pursuit of private privilege over public good. How do we vote them out, though?

    12. By richarquis de sade on May 23, 2013 | Reply

      As I said to friends when discussing it – It’s one thing to have a government that actively ignores the advice of it’s own Attorney General when he advises them that their proposed legislation is dodgy. It’s quite another when that AG subsequently votes for that same legislation he just advised against.

    13. By Rosalind on May 27, 2013 | Reply

      I have mixed feelings about this because although family carers should be paid for looking after their disabled children or relatives, there must also be some sort of assessment of whether they are doing an adequate job, and whether the disabled subject person actually wants that family member to be their caregiver. My mother is doing a neglectful and abusive job of looking after my adult sister who is intellectually disabled, but the Family Court refuses to do anything about that. My sister desperately wants to be free of my mother and would love to try Assisted Living with friends, but the Family Court won’t listen. Therefore although I think caregivers should generally be paid, I don’t think my mother should be paid anything, not when the recipient of her care doesn’t want her care and is eagerly looking forward to her death. Unfortunately it is likely that at my mother’s demise, my eldest sister will be making a bid to be caregiver and will probably use my disabled sister as an unpaid housemaid (=slave) if successful.

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