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An unjust government

Written By: - Date published: 7:11 pm, June 24th, 2013 - 17 comments
Categories: uncategorized - Tags: ,

So the Ministry of Health has relented to some caregivers and is paying them something… but not others. Margaret Spencer has given up her life to look after her adult son, but gets no compensation for it. If she gave her son over to strangers to look after, not only would the MoH have to pay his accommodation, professional caregivers would get paid around $52,000 and only work 40 hours per week. She works 24/7 for nothing but a sense of responsibility.

It seems outrageous that she has been excluded from pay, but even victory will still not be complete – the Government’s legislation it passed in one day (Budget Day), means she can be paid a maximum of 40 hours at minimum wage.

And worse there is no judicial review of that. This case is in court on judicial review because the MoH had sought an exclusion order to prevent her being paid before the legislation had passed. There will be no judicial review of injustices in the future.

Margaret Spencer made a powerful statement to start the case (scheduled over 3 days in the Auckland High Court) as she fights for the rights of ordinary New Zealanders like her:

“This is not democracy as democracy ensures equality of rights. This is a dictatorship where the Government is trying to gag the courts. This is disrespectful.

“I have been taking care of my son for all of his life and for over 25 years since he has been an adult but the Ministry has not been doing their part towards myself and others like me. It has gone on for too long.”

17 comments on “An unjust government”

  1. Nordy 1

    Well said Ben, and well done Margaret Spencer for making the brave decision to take on the government through the courts.

    It is reprehensible that the government has forced through under urgency a law that prevents a judicial review being taken of decisions under this law.

    To call this situation unjust is being overly polite…..

    • McFlock 1.1

      Indeed.

      It’s one thing for this travesty to happen, and another for the government to just go “yeah, nah, coz we can”.

    • Mary 1.2

      Is the restriction really on judicial review? I thought it was on the ability to take cases to the Human Rights Commission, the Human Rights Review Tribunal and so on, under Part 1A of the HRA – not a restriction on judicial review. Can someone clarify?

      • rosy 1.2.1

        According to the Andrew Geddis post I think National just broke the constitution on Pundit, under section 70E(2) of the bill, when the law comes in:

        no complaint based in whole or in part on a specified allegation [that the policy unlawfully discriminates] may be made to the Human Rights Commission, and no proceedings based in whole or in part on a specified allegation [that the policy unlawfully discriminates] may be commenced or continued in any court or tribunal.

        So it seems that the Human Rights Review Tribunal and the courts are both barred from making a decision about whether the the legislation is discriminatory.

      • McFlock 1.2.2

        I wish.

        “70E Claims of unlawful discrimination in respect of this Act or family care policy precluded

        “(1) In this section, specified allegation means any assertion to the effect that a person’s right to freedom from discrimination on 1 or more of the grounds stated in section 21(1)(b), (h), (i), and (l) of the Human Rights Act 1993, being the right affirmed by section 19 of the New Zealand Bill of Rights Act 1990, has been breached—

        “(a) by this Part; or

        “(b) by a family care policy; or

        “(c) by anything done or omitted to be done in compliance, or intended compliance, with this Part or in compliance, or intended compliance, with a family care policy.

        “(2) 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.

        any court or tribunal”

        edit: lolsnap Rosy :)

        • rosy 1.2.2.1

          Hah, It requires restating many times – it’s an absolutely outrageous piece of legislation.. well, another outrageous piece of legislation that diminishes our democracy that not enough people are being outraged about.

        • Mary 1.2.2.2

          No, I think rosy’s right. It does say “any court” but the restriction relates to “a specified allegation”, i.e. one of the grounds of discrimination listed ion s 21 of the Human Rights Act. Reference to “any court” is about when claims made to the Human rights Commission go beyond the Human Rights Review Tribunal and reach the general courts, as catered for under the Human Rights Act. The restriction isn’t against judicial review. Having said that, though, judicial review wouldn’t necessarily be the avenue you would follow when challenging under those grounds, anyway. Judicial review in these circumstances wouldn’t ordinarily be that helpful.

          • McFlock 1.2.2.2.1

            If the government policy breaches the Human Rights Act by discriminating on the grounds of marital status, disability, age, or family status (which it does), then there is no recourse to either the tribunal or a court.

            They arbitrarily wrote themselves an “ignore human rights with no mechanism or review or correction” law.

            • Mary 1.2.2.2.1.1

              I think the biggest problem with the legislation is that it shows how weak the protection in the Human Rights Act that relates specifically to government really is. That protection wasn’t necessarily designed to force the government to do anything if the tribunal or court found that what ever the complaint against government was about was found to be discriminatory, but it was designed to guarantee a declaration. Government has replaced a discriminatory practice with discriminatory legislation, which is bad enough. But what’s really repugnant is the removal of the ability to challenge the new policy. This is where the blatant abuse is, and shows the weakness of the protection overall. (Having said this, the legislation, to me anyway, doesn’t remove the right to judicial review, which is what some people are saying. What’s in fact removed is the ability to challenge the carer policy under the same provisions in the Human Rights Act that the group of families successfully used to receive their declaration, this on top of replacing discriminatory policy with discriminatory legislation, of course, preventing even the possibility of a declaration, which is what the whole purpose of making government practices, policies, legislation subject to the Human Rights Act was in the first place.)

              • McFlock

                But it’s not just the human rights act.

                The practise of government policies and laws being able to be challenged and interpreted in the courts goes back hundreds of years, and is a key safeguard against tyranny.

                • Mary

                  The restriction applies to challenges to the new carers policy, which has been implemented by way of legislation, surely? The amendment was made to the New Zealand Public health Act. If what you’re saying is true government would in effect being repealing Part 1A of the Human Rights Act. I’m pretty sure that hasn’t happened. What has happened is still bad enough, of course – it’s just that I don’t think it’s gone as far as you’re saying.

                  • McFlock

                    They have, regarding the provision of support to family carers, in practise repealed 21(1)(b), (h), (i), and (l) of the Human Rights Act 1993.

                    It still exists, but the government can do whatever it wants within those bounds without anyone having recourse to a tribunal or any of the courts. They did the same thing with CERA – the government’s decision is final, no correspondence shall be entered into.

                    Of course, King John tried that line, too.

    • Mary 1.3

      Is it really about preventing judicial review? Is that what the legislation passed under urgency actually says? I think the issue is more about how weak our human rights protections are against discriminatory acts and omissions on the part of government really are, and how open to abuse Part 1A of the Human Rights Act really. The government’s response to the decision of the Court of Appeal is very much at odds with the original intention of Part 1A, I might add.

  2. Treetop 2

    I applaud a person like Margaret Spencer for speaking out and her relentless devotion to her son. At some point Margaret will not be able to care for her son and this must weigh heavily upon her.

    The government are refusing to acknowledge that at times Margaret would have been classified as having done forced or slave labour. About a decade ago I helped a man to get compensation for forced labour during the war as they were taken to Germany and forced to work in a bakery 16 hours a day, 6 days a week (initially with a gun in their face).

    Caring for a disabled adult is a dilemma as all a parent wants to do is to protect their son or daughter, (know that they are safe) for them to reach their full potential and to be well, happy and loved.

    Do they hand their son or daughter over to the state to be heavily medicated and have caregiver after caregiver and the possibilty of all forms of abuse occurring or does a parent keep parenting their son or daughter 24/7 which can be exhausting and stressful?

  3. Rosemary McDonald 3

    As the unpaid, sole carer of my pre-ACC high tetraplegic partner I am ever so slightly interested in this case. Brave Margaret for boldly going where others have gone before. As before, whatever the outcome, the MoH and the Crown law office will appeal. Because they can. And they will.

    These people do not care. They have no sympathy. They are incapable of empathy.

    They have even stooped so low as to make spurious and unfounded allegations about the quality of care family members will provide if paid.

    Though when they are not funding for any care, because family are providing care unpaid, they do not care about the welfare of the disabled person.

    The cabinet discussion documents regarding the new policy and the ammendment to the PHADAct are now available on the Ministry of Health website…a must read for those with any interest in this issue. Tells me nothing I did not already know. The Ministry and the Government see non-ACC disabled as being burdens on the state. They obviously think that enough New Zealanders will share this view..or they would not have risked doing what they did.

    And the government still rides high in the polls.

    So ok, the majority of New Zealanders don’t give a damn about non -ACC disabled being permanently consigned to sub-citizen status, but how will you all react when the government halves what it currently spends per year on prison inmates? ($90,000 pa)

  4. Rosetinted 4

    Caregivers on their own, can feel so hopeless of any real kindly help and concern from our wonderful society, one wonders how we ever got so positive about our kindness, that they might just decide to draw the line and accept the final responsibility of life, death, and take their child’s and then their own. It has happened in Nelson some years ago, during a previous reign of the tight-lipped, anally-retentive National Party’s Jenny Shipley, Ruth Richardson, et al.

    • Rosemary McDonald 4.1

      Rosetinted..”.accept the final responsibility of life, death, and take their child’s and then their own”

      This is what they term…”exhausting natural supports”. Take a look at the criteria for becomming a member of the “1600 club”….potential of family breakdown, stress etc.

      The old ambulance at the bottom of the cliff mentality that seems to dominate the area of non-ACC disability supports.

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