Home | Databases | WorldLII | Search | Feedback New Zealand Human Rights Commission Submissions

New Zealand Public Health and Disability Amendment Bill - Submission to the Health Committee by the Disability Rights Commissioner [2020] NZHRCSub 7 (2 April 2020)

Last Updated: 20 January 2021

2 April 2020


Health Committee Parliament Buildings WELLINGTON


Tēnā koutou katoa,

Submission of the Disability Rights Commissioner on the New Zealand Public Health and Disability Amendment Bill

Thank you for the opportunity to make this written submission on the New Zealand Public Health and Disability Amendment Bill (the Bill). The passage of this Bill through the House holds considerable significance for the rights of disabled people in Aotearoa New Zealand and has my strong support.

Background

The objective of the Bill is to repeal Part 4A of the New Zealand Public Health and Disability Act 2000 (the Act) to ensure consistency with human rights law and the UN Convention on the Rights of Persons with Disabilities (CRPD).¹ As you will all be very much aware, Part 4A was enacted under urgency following the Court of Appeal’s landmark judgment in Ministry of Health v Atkinson.² The Court of Appeal upheld the judgments of the Human Rights Review Tribunal and the High Court which ruled that the Ministry of Health’s policy of not paying family caregivers for care services provided to their adult disabled children constituted unlawful discrimination under the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993.

While Part 4A introduced the Funded Family Care policy (FFC) that provided a system of payment for family carers, it prevented them from seeking redress under the Human Rights Act in respect of any future decision made under the auspices of the FFC policy. This, in itself, constituted significant discrimination through the abrogation of the right of disabled people to seek redress under the Human Right Act.

Further, the urgency with which Parliament enacted Part 4A bypassed the select committee process, preventing disabled people, their families and advocates from participating in the legislative process. In Attorney-General v Spencer, the Court of Appeal observed that the passage and content of Part 4A can be regarded as “draconian” and contrary to constitutional law and convention.³ The United Nations Committee on the Rights of Persons with Disabilities also expressed concern and recommended amendment of the Act in its 2014 periodic report on New Zealand.⁴

¹ Explanatory Note to the Bill

² Ministry of Health v Atkinson [2012] NZCA 184; [2012] 3 NZLR 456

³ Attorney-General v Spencer [2015] NZCA 143; [2015] 3 NZLR 449 at [82] and [84]

⁴ CRPD/C/NZL/CO/1, 31 October 2014 at [9] and [10]

My position on the Bill

The Bill itself is extremely brief, with only two substantive clauses. Clause 4 repeals Part 4A in its entirety, in doing so remediating a human rights breach of considerable proportions and one which has blemished New Zealand’s otherwise healthy international reputation as a leading nation in the field of disability rights.

The second substantive clause, clause 5, addresses aspects of the FFC policy regarding employment conditions that have been highly problematic for disabled people and their families. It does this by deleting the current exclusion of family caregivers from the definition of “employer” under the Care and Support Workers (Pay Equity) Settlement Act 2017. The effect of this is two-fold. Firstly, it provides that payment provisions for family members will now be equitable with others providing similar services, whether funded by the Ministry of Health or District Health Boards. Secondly, by implication, it reflects the broadening of employment arrangements brought in by the new FFC 2020 policy and regulations⁵ which are due to be implemented on 14 April 2020.

While these developments are positive, I note that the Bill has the effect of removing any express mention of FFC from the primary Act. Given the Bill’s intention to ensure consistency with human rights law and the CRPD, the Committee ought to consider whether this intention should be reflected in the primary legislation itself. I note the Court of Appeal’s findings in Chamberlain v Minister of Health⁶, in which the Court observed that:

‘...the Ministry must take into account New Zealand’s obligations deriving from the Convention and reinforced by the Strategy to ensure “the importance of belonging to and participating in our community to reduce social isolation”, to be achieved through the provision of “high quality, available and accessible” services.’

I also note that the capping of maximum payable weekly hours at 40⁷ has the effect of creating a structural inequity as regards the care supports available for disabled people in residential care services as compared to those living at home. The value of disability support ‘packages’ for people who are in residential services would almost certainly amount to more than 40 hours. While I do not propose that an individual family carer is paid for more than a full-time working week, it is important that ancillary funding is available to cover costs associated with care requirements that are incurred by the family outside of these working hours.

It follows that the implementation of the new FFC policy is as crucial as this Bill is in addressing the deficiencies of the outgoing system. It is therefore imperative that this is done in a manner that is as transparent and participatory as possible and involves affected disabled people (directly where possible or through their representative organisations) and, importantly, their families. I note that the Bill’s Regulatory Impact Statement omits to mention families in its list of persons and organisations who are and will be consulted on the new policy settings.⁸

⁵ Funded Family Care Amendment Notice 2020, https://gazette.govt.nz/notice/id/2020-go70

⁶ Chamberlain v Minister of Health [2018] NZCA 8; [2018] 2 NZLR 771 at [76]

⁷ Funded Family Care Amendment Notice 2020, clause 11

⁸ Regulatory Impact Statement p 27

Recommendations

In light of my comments above, I accordingly recommend that the Committee:

1. Consider whether the Bill requires a purpose clause which amends s 3 of the current Act to provides that a purpose of the current Act is to ensure consistency with human rights obligations, including the CRPD.

2. Note in its report on the Bill the importance of ensuring that the development of a new family care policy should include consultation with affected disabled people and their families.

3. Note in its report on the Bill the importance of ensuring that new FFC policy and regulatory instruments fully conform with the state’s human rights obligations, including the CRPD and the objectives of the New Zealand Disability Strategy.

Conclusion

In conclusion, I reiterate my strong support for this Bill and acknowledge the Government’s committed
efforts over the past couple of years that has led to the introduction of the Bill to the House.

I also wish to acknowledge the huge amount of work by disabled people, their families and their representatives and advocates over the past two decades, without which this highly significant legislation would not be possible.

Many thanks for your consideration. I respectfully request the opportunity to appear before the Committee to address the points made in this submission.

Nāku noa, nā,

Paula Tesoriero
Disability Rights Commissioner