You might need a moment to let the implications of this sink in. By passing this law, Parliament is telling the judicial branch that it is not allowed to look at a Government policy (not, note, an Act of Parliament) in order to decide whether it is in breach of another piece of legislation enacted by Parliament (the New Zealand Bill of Rights Act 1990). In other words, the judiciary’s primary function – to declare the meaning of law and its application in particular cases – has been nullified. Furthermore, the judiciary’s role as protector of individual citizens in terms of ensuring that they are being treated in accordance with the laws of the land has been removed. While the stakes may be small in the immediate case, this is about as big a deal as it gets in terms of our constitution.
Now, I sort of get why Tony Ryall (the Minister in charge of this bill) wanted to do this. Trying to come up with a policy on who does and doesn’t get money here is probably pretty complicated. And health dollars are a finite resource – everything that is paid over to family caregivers means less services somewhere else. So having the threat of the judiciary coming into this mix and upsetting whatever compromises he comes up with over the next few months when he finalises the family care policies would be a real pain in the backside. You can even argue, as does Attorney General Chris Finlayson in his New Zealand Bill of Rights Act assessment (which I’ll get to in a moment) that the courts were wrong to intervene in the first place.
After the court decisions, the Government decided not to appeal to the Supreme Court and pay family members who care for disabled members of their own family. The Budget provided funding to do this.
I am one of those who have some disquiet that we have introduced a precedent of paying people to care for their own family members, but the courts ruled that if you can pay someone else to be the carer, then the parents should get paid also.
So as Geddis said, working out who qualifies in caring for a family member is complex. How do you define what level of diability etc. But is the Govt’s response appropriate? The Attorney-General said:
Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
And yet this declaration itself was not enough to stop the National Government using its numbers in the House to rush this Bill through all stages of lawmaking and onto the statute books in a single day.
So there you have it – another day in the life of the Government of the nation and the laws made by the Parliament it commands.
I think we could have a good debate about whether this policy should or should not be reviewable by the courts. But the point is we are not getting to have that debate. By passing the bill through all three stages under urgency, it means the debate never got held.
The bill should have gone to select committee, so submissions could be held on whether the law change was reasonable, in exchange for the funding now granted by the Government and Parliament.
National’s use of urgency has been very restrained for the last two years. In fact they have not gone into urgency at all since August 2011, until this month. That is a probably a record. Of course the provision for extending sitting hours helps.
The urgency for the GCSB bill was fine with me, as the urgency applied to the first reading only. It has been referred to a select committee.
Some of the bills passed through all three stages after the Budget were appropriate to do so, such as the petrol tax hike which was announced a long time ago, and excise tax increases never go to select committee (I think). The fix to the Crown Minerals Bill was also arguably okay, as it was just fixing a drafting error.
But I can’t see any reason for this bill not to have gone to select committee. Urgency should not have been used to pass it through all its stages. The clauses to remove the ability of the courts to review the policy should be submitted on and debated – even if it delayed the implementation of the payments to parents as caregivers.