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

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.