Dear Hon. Minister Tariana Turia,
As the Minister for Disability Issues I would like to raise with you on behalf of Saving Downs our concern about the constitutional implications of the passing of the Public Health and Disability Amendment Bill No.2 last week.
As you will be aware, last Friday the Government passed under urgency the Public Health and Disability Amendment Bill No.2, in response to the High Court and Court of Appeal decisions that the Government had to pay family members who looked after people with disabilities on an equal basis that non family members are paid to do so (because not doing so was discriminatory).
Our view is that the bill:
· Overrides decisions of the Human Rights Review Tribunal, the High Court and the Court of Appeal in basic matters relating to freedom from discrimination on the basis of disability;
· Undermines fair wages by allowing for a lower rate (the minimum wage rather than the appropriate carers wage) to be paid to carers who happen to be family members;
· Removes access for complaints that the policy discriminates on the basis of disability to be taken to the Human Rights Commission and the associated courts; and
· Is unconstitutional in preventing people making claims to the Human Rights Commission, a right that is guaranteed under the Bill of Rights Act, the Human Rights Act and the UN Convention on the Rights of People with Disabilities.
Our understanding is that Attorney-General Chris Finlayson has said in his report to Parliament:
“[Section 70E] appears to limit the right to judicial review because it would prevent a person from challenging the lawfulness of a decision on the basis that it was inconsistent with [the Freedom from Discrimination section] of the Bill of Rights Act… On balance, I have concluded that limitation cannot be justified under s5 of the Bill of Rights Act.”
We view this as a breach of basic civil, human and disability rights. It fundamentally undermines the New Zealand Bill of Rights and the spirit and intention of the UN Convention on the Rights of People with Disabilities, of which New Zealand is a signatory and the New Zealand Disability Strategy.
The removal of access by disabled people and their families to New Zealand courts for complaints that government policy is discriminatory is entirely unacceptable and must be redressed immediately.
This is an entirely unsatisfactory situation which leaves the Down syndrome community in a vulnerable position for further human rights breaches and abuses by the Government.
We ask you to take urgent steps to ensure this Bill is repealed.