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Hill v IHC NZ Inc [2000] NZCRT 30 (3 November 2000)

Last Updated: 10 July 2010

Decision No, 30/2000

Reference No. CRT 38 & 39/00

Second Defendant

BEFORE THE COMPLAINTS REVIEW TRIBUNAL

S C Bathgate - Chairperson

P McDonald - Member

W A C Abbiss - Member

HEARING on the papers

DECISION

The plaintiffs in these proceedings have alleged that the defendants committed breaches of the Human Rights Act in that they refused to employ the plaintiffs as paid caregivers for their disabled son by reason of their family status as his parents. The remedies sought include declarations of breach and damages. This matter has been the subject of an investigation by the Human Rights Commissioner so that, pursuant to s. 83(4) Human Rights Act 1993, we are satisfied that we have the jurisdiction to hear and determine these proceedings.

At a directions conference held after the filing of the pleadings the parties agreed to provide submissions on the effect of s. 151(2) Human Rights Act 1993. In the event that the actions of the defendants are covered by that provision it was agreed that this proceeding was at an end because this Tribunal lacks the jurisdiction to further hear and determine these proceedings.

BACKGROUND

The plaintiffs are the parents of a 25 year old man who has been under the care of IHC since 1981 in a contract board situation with paid caregivers. When the previous caregiver moved from the area IHC advertised for another caregiver. The plaintiffs applied for the position but were told that they could not be employed in that role because they were family members of the person requiring care. They were told that excluding family members from providing paid care for other family members was a policy of the Health Funding Authority which provides the funding for this care.

THE LAW

Section 151(2) Human Rights Act 1993 provides:

Other enactments and actions not affected:

Except as expressly provided in this Act, nothing in this Act relating to grounds of prohibited discrimination other than those described in paragraphs (a) to (g) of section 21(1) of this Act shall affect anything done by or on behalf of the Government of New Zealand

THE SUBMISSIONS

The plaintiffs submitted that

♦ Section 151(2) covers Ministers of the Crown and their Ministries or Departments but it does not cover Crown entities within the meaning of the Public Finance Act 1989 or any other institutions which play a part in the government of the country.
♦ The funding arms of government (in this case the Health Funding Authority) should only be protected by section 151(2) if they are acting in accordance with legislation or under the direction of a Cabinet Minister.
♦ If the HFA is implementing policy which does not come from legislation or a Minister then it is not covered by s. 151(2).
♦ There is no written policy covering the payment of families as caregivers for other family members.
♦ The HFA has a discretion to enter into service agreements with service providers like IHC. The degree of discretion the HFA has in negotiating these service agreements suggests that it is not acting under the direction of a Minister.
♦ IHC should not escape liability under the Act as an employer operating with a discriminatory policy.

For the first defendant it was submitted that

♦ IHC is an independent contractor to the HFA but the services it performs are performed on behalf of the HFA.
♦ If the HFA has a policy which prevents family members, from being contracted to provide caregiving services to other family members and that policy is implemented on behalf of the government then IHC is implementing that policy on behalf of the government.

For the second defendant it was submitted that

♦ Everything done by it is done on behalf of the Government of New Zealand. It has no independent brief or ability. If it has discriminated against the plaintiffs (not admitted) on the prohibited ground of 'family status' it could only have done so on behalf of the Government

.Family status is a ground of discrimination introduced by the 1993 legislation. It is not covered by paragraphs (a) to (g) of section 21(1) of the 1993 Act

• The effect of s. 151(2) is that nothing in the Human Rights Act relating to family status discrimination shall affect anything done by or on behalf of the Government of New Zealand

♦ The issue for determination is whether the HFA's activities are in the course of the administration of government, or constitute governmental action.

FINDINGS

We are required to determine whether the actions of the defendants in refusing to fund or employ the plaintiffs to be the caregivers of their son are excused by the provisions of s. 151(2) Human Rights Act 1993.

We accept that family status is not a ground covered by s. 21(1)(a) to (g) Human Rights Act 1993. As is noted in the Human Rights text, Brooker's Human Rights Law, family status is one of the new grounds of prohibited discrimination which is not binding on the Government:

Accordingly, it will be lawful, for example, for the Government to introduce an employment programme available only to persons of a particular family status para 1.5.07 1996

This example raises the issue referred to by the plaintiff: does s. 151(2) cover only policy matters arising from legislation or from a Minister of the Crown? The example is clearly an example of a policy initiative by a Minister of the Crown. Can it be extended to cover the actions of a funding agency and an employer dependent for its funding on that agency?

We think the answer lies in the statutory basis of the HFA and its contractual relationship with the Minister of Health and in the wording of s. 151(2).

Section 151(2) is expressed, with reference to that which is not covered by the Act, in very wide terms. It refers to anything done by or on behalf of the Government. This phrase has been variously described by the Court of Appeal[1] as relating to the administration of government or governmental action. This description embraces more than matters of policy found in legislation or initiated by a Minister of the Crown. We think the words anything done cannot be confined in the way argued for by the plaintiff because they contemplate a range of actions and initiatives. Included in that range of actions or initiatives must be the provision or administration of funding for health and disability services. Similarly the words on behalf of the Government suggest that the actions referred to are not restricted to those carried out only as the result of legislation or actions or initiatives of Ministers.

An analysis of the statutory basis of the HFA reveals that it (via its predecessors the Regional Health Authorities) was established by the Health and Disability Service Act 1993 to (inter alia) fund public and personal health and disability services for the people of NZ by means of service agreements or otherwise. The contractual relationship between the HFA and the Minister of Health is recorded annually in a Funding Agreement which reflects the Government's health policy objectives and establishes the HFA's obligation to deliver health services to and for the Government.

It is clear, therefore, that if the HFA cannot be described as acting as the Government it can certainly be accepted as acting on behalf of the Government in respect of the funding of health and disability services. For these reasons we accept that the provision of funding for health and disability services of the kind required by the plaintiff's son is included in the definition of anything done by or on behalf of the Government of New Zealand.

We accept, therefore, that the HFA has the ability to discriminate on the grounds of family status in respect of its activities in the funding of health and disability services. In its submissions the IHC indicated that the HFA maintains a policy that prevents family members from being contracted to provide Residential Contract Board Services to their own family members and that the HFA requires the IHC to implement this policy. We now seek the evidence of the requirement by the HFA of IHC that it so discriminate. This proceeding is adjourned to enable that evidence to be put before the Tribunal. It is required to be filed with the Tribunal and served on the plaintiffs by 1 December 2000. Upon receipt of that evidence the Tribunal will notify the parties of what is next required of them.

PROCEEDING ADJOURNED ACCORDINGLY

DATED at Wellington this 3rd day of November 2000

S C Bathgate

Chairperson

P McDonald

Member

W A C Abbiss

Member

[1] In Quilter v Attorney General [1997] NZCA 207; [1998] 1 NZLR 523 at 539 and 574-5