- Sam Bookman
A showdown between Parliament and the courts is rarely desirable, especially in a country that lacks a written constitution. Instead, our governmental balance of power has weighed heavily on the side of parliamentary supremacy. In the absence of written constitutional safeguards, it is incumbent on Parliament to exercise its power responsibly, having regard to constitutional conventions. One of the central conventions in the gentlemanly arrangement is the undertaking not to remove the fruits of litigation; Parliament should avoid directly overriding the courts. Yet in its latest budget and accompanying New Zealand Public Health and Disability Amendment Bill (No 2) (“the Bill”), that is precisely what Parliament has done.
Of course, this convention is not always followed. Robert Muldoon (in relation to hydropower dam development) and Helen Clark (in relation to Maori title) both notoriously ignored Court directions. Unlike those instances, it is not so much the brazenness of the present Bill that is of most concern. Rather, it is an insidious and cynical denial of rights fought hard for and won in the Court process, passed under urgency with almost no public scrutiny. Criticism and concern (such as Professor Andrew Geddis’s excellent critique) is well-justified.
The Bill
The Bill sets out a framework for payments to be made to parents of disabled adult children. Fair enough, you might think. It seems sensible to fund and reward this group, who spend a great deal of time devoted to their children. From a fiscal perspective, if they did not then the government would have to pay someone else to do it. Cue the applause for a compassionate government that is committed to disability support.
Yet, the Bill should not be misread as a generous gesture. It is the result of years of costly litigation by a group of parents, culminating in court victories at the Human Rights Review Tribunal, High Court and Court of Appeal. Their rulings found that the previous failure to pay these parents amounted to unjustifiable discrimination under the New Zealand Bill of Rights Act 1990 (BORA). This was because parents were being left unpaid solely on the basis that they were family – had an external carer provided support, they would have been paid. The government was merely complying with a court order from one of New Zealand’s highest courts.
But instead of addressing the substance of the ruling – that parents deserve equal treatment to external carers – the government has signalled that carers will only be paid the minimum wage, and that there will not be a settlement with discriminated families unless they were party to the litigation. Furthermore, parents of children under 18 and spousal carers will not be paid.
Whether this complies with the court findings is doubtful. The ordinary means of testing that proposition would be to file another claim in the Court. Given the new regime is a matter of policy, and not primary legislation, a finding of unlawful discrimination can lead to remedies. However, the government is clearly cognisant of this threat and has legislated for something that is almost unheard of. It has explicitly barred claimants bringing proceedings through the courts on this particular issue.
A new s 70E of the Act sets out that:
On and after the commencement of this Part, no complaint based in whole or in part on a specified allegation may be made to the Human Rights Commission, and no proceedings based in whole or in part on a specified allegation may be commenced or continued in any court or tribunal.
The legislation ties the hands and jurisdiction of both the Human Rights Commission and judiciary, two bodies charged with independently checking legislative powers. In doing so, it removes a remedy of unlawful discrimination. Not only does this undermine the strength of New Zealand’s already feeble human rights framework, but it infringes on the fundamental principle of comity; that Parliament leave the courts to perform their core adjudicative functions. In most countries with written constitutions, this would simply not be permitted.
Furthermore, the enactment is partially retroactive. Claims that are brought before the date of enactment are affected. Instead of having the full range of remedies available, such claimants will only be able to receive declaratory relief. Such relief relies on the goodwill of Parliament to actually lead to a beneficial outcome. On current form, that is clearly not the case.
The fact that this legislation was rushed through under urgency is a flagrant abuse of government power. This is not a minor regulation, or tinkering with an amendment. This is a piece of legislation that strikes at the heart of New Zealand’s constitutional balancing act, and accordingly is deserving of thorough debate and public scrutiny. Burying this deep in the post-Budget legislative agenda is lawmaking at its worst.
Of equal concern is the approach taken by the Attorney-General. The BORA sets out a process under s 7 whereby the Attorney-General (currently Hon Christopher Finlayson MP) is to vet Bills for consistency with other BORA provisions. While it is curious that a member of Parliament is tasked with this function – and often votes in favour of legislation, despite inconsistency – Attorneys-General (including Mr Finlayson) normally deliver their reports in an even-handed and respectful manner.
Not so in this case.
Instead of directly assessing the rights impact of the Bill, Finlayson instead seeks to justify the Bill in terms of cost. He claims that the cost of extending payment in a non-discriminatory manner would be too expensive, yet he fails to give a suggestion as to cost and why that cost should not be incurred. Given the extraordinary inconsistencies in the Crown’s cost estimation throughout the Atkinson litigation, such a figure would be of some assistance.
But it does not stop there. Extraordinarily, the s 7 report suggests that the Court of Appeal was substantively incorrect in its reasoning and findings of discrimination. The Attorney-General (at [9] and [12]) notes that “I do not consider courts sufficiently deferred to the Crown’s view” and “I do not agree that the prohibition in the Family Carers case [Atkinson] was discriminatory”. This merits some reflection. A government minister with significant justice sector responsibilities – including the appointment of judges – is using a rights-check procedure in the legislative process to criticise the findings of an appellate Court. The arrogance and intrusion into the judicial realm is breathtaking.
But it doesn’t stop there. Finlayson then uses the report to outline his own jurisprudence on the role of government. According to the report (at [9]), it is not the role of courts to scrutinise legislation when it has wide-ranging cost impacts. Not only does this fly in the face of the underpinnings of judicial review, but it is an extraordinarily simplistic assessment of the judicial role. Few would advocate that courts set the government budget. However, Parliaments – both Labour and National – have legislated the BORA and Human Rights Act 1993 (HRA). For the courts to ignore legislation that establishes a scrutinising role would be judicial negligence. While courts will not enquire into the substantive merits of a particular policy, they will – and should – enquire into whether it breaches legislative rights. This will be especially so when – as was noted in Atkinson – the policy-making process has been plainly deficient. By arguing that the courts should steer clear of any legislative act that involves fiscal concerns, the Attorney-General is (“with respect” as he is careful to note) effectively telling the courts to avoid virtually any government matter: almost all policies have rights considerations.
In making this argument, Finlayson is effectively criticising the findings of the Human Rights Review Tribunal, High Court, Court of Appeal, and undoubtedly the extra-judicial comments of the Chief Justice. Such conduct well oversteps the mark of parliamentary criticism of the judiciary. To bury such criticism in the pages of a s 7 report is bizarre.
Yet, to his credit, even Finlayson acknowledges that the Bill breaches BORA rights – and not just the s 19 rights against discrimination. In removing a judicial pathway to vindication, the Bill goes further in falling foul of s 27. Even in the Attorney-General’s eyes, it is a rights-deficient piece of legislation.
A better approach
This episode is a lost opportunity. Recognising the wrong done to the claimants in Atkinson in a fair-spirited manner would have demonstrated the way in which good policy outcomes can be achieved when each branch of government positively interacts. Perhaps the government, fearful of establishing a precedent of individuals achieving rights-consistent policy outcomes through the courts, was eager to sabotage the process. As Chief Human Rights Commissioner David Rutherford noted, ”This sends a chilling message to anyone seeing litigation as a road to solving issues relating to the protection of their economic and social rights.”
But even if this cynical lens is not applied, there are manifestly more constitutionally appropriate resolutions to this saga. First, the government could simply have legislated in a manner that is rights-consistent. This would have been more costly, but would have achieved a discrimination-free outcome. Secondly, if the government truly found the cost of caring for the disabled unjustifiably expensive, it could have worked toward developing robust and extensively consulted primary legislation, which would have the effect of overriding BORA rights in any event. Such legislation would still be open to declaratory findings of inconsistency, retaining a remedy and opening up the policy to judicial and public scrutiny.
Either option would have been superior to this appalling abuse of parliamentary sovereignty.
Sam Bookman is the co-Editor in Chief of the New Zealand Human Rights Blog.
