On any number of counts, the New Zealand Public Health and Disability Amendment Bill represents a particularly sorry piece of law-making.
Both its content and the manner in which it made its way through Parliament warrant the strongest criticism. The bill, which allots $23 million annually to people who care for disabled adult family members, was passed under urgency, denying public input through select committee hearings. To add insult, official advice from the Health Ministry on the legislation was heavily censored, with whole sections of the 28-page document blacked out.
The legislation's contents see the Government again exercising its impulse to clear the decks when it comes across a situation that is out of the ordinary. In the process, constitutional niceties are dispensed with. The courts can be over-ridden and the checks and balances that should circumscribe Parliament are removed.
In this instance, the Government is responding to a Court of Appeal decision that its policy of not paying family carers to provide support services to disabled family members constituted unjustifiable discrimination on the basis of family status.
The legislation limits the liability of the Government. Payments of the minimum wage are limited to adults assessed as having high or very high needs. It is estimated that the cost would jump to $65 million a year if payments were extended to all carers and all disabled adults.
In the normal course of events, those rendered ineligible by the legislation would surely mount a legal challenge to see if the Government's policy complied with the verdict of the Court of Appeal. But under the legislation people can no longer bring unlawful discrimination complaints about the new law or any family care policy to the Human Rights Commission or take court proceedings. In the words of the Chief Human Rights Commissioner, David Rutherford, "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."
Unsurprisingly, the Attorney-General, Chris Finlayson, found that the clause in the legislation which prevents carers from making a legal challenge breached the Bill of Rights Act because it limited the right to seek a judicial review. Not extending payments to all family carers could also be a breach of the Bill of Rights Act, he said. The Government, intent on limiting future claims, ploughed on regardless.
It's not a good look for the Government to be in conflict with its Attorney-General. Nor is it a good look for legislation to be rushed through under urgency, which should be used sparingly. Hurried legislation is seldom good legislation.
John Key has defended the Government's position however; Stuff reports:
Prime Minister John Key is defending new legislation that prevents people taking legal action against the Government, saying it is constitutional and necessary.
A bill legislating for the payment of family members looking after disabled adults was adopted by Parliament under urgency at the weekend.
It followed a Court of Appeal ruling against the Ministry of Health policy excluding family members from payment.
Critics say a clause in the bill preventing family members taking further legal action is unconstitutional.
Concerns have also been raised about the bill's regulatory impact statement, much of which is blacked out because it is "legally privileged".
Green Party MP Catherine Delahunty said Parliament had failed the families and the bill perpetuated existing discriminations.
But Mr Key believed the clause was legal, constitutional and necessary. It highlighted "a really challenging issue about where you draw the line between family responsibility and where the state should play a role".
It is good that the Government has addressed this issue, which has been festering for almost ten years. However the manner in which it has been addressed is far from ideal in our ever-humble opinion.
Oppositions seldom get voted in. Changes in government are generally as a result of a voter backlash against the incumbent government. And an issue such as this can often be the catalyst for change.
We hope that this is not the case for the John Key-led Government, but it is treading a knife-edge at the moment in terms of the 2014 General Election, and issues such as this ought be better managed. Perception is everything in politics, and governments which are perceived to be arrogant or out of touch eventually get a DCM from the voters. National has some redeeming to do.