Commission welcomes High Court decision that the Ministry of Health acted unlawfully

The Human Rights Commission welcomes yesterday’s High Court decision upholding the rights of disabled people and their families to seek compensation for discrimination under the Ministry of Health's former policy of not paying family carers to provide disability support services to disabled family members, notwithstanding rushed budget day legislation.

The Ministry of Health argued in Spencer v Attorney-General that the New Zealand Public Health and Disability Amendment Act 2013 validated its former policy, declared unlawful by the courts, and removed the rights of disabled people and their families to seek compensation for discrimination under it. The High Court rejected the Ministry of Health's argument as "plainly inconsistent" with the right to justice. To achieve the purposes of the Act it was "not necessary to take away from individuals rights they have by reason of the Tribunal's finding that the policy operated by the Ministry was unlawful," the High Court said.

The Commission has previously expressed concern about the New Zealand Public Health and Disability Amendment Act 2013, passed under urgency in a single sitting day despite the Attorney-General's advice that it was inconsistent with the New Zealand Bill of Rights Act 1990. It welcomes the High Court decision as reaffirming the importance of the right to be free from discrimination and the right to access the courts.

"The High Court decision represents an importance advance for the rule of law in New Zealand and for the human rights of disabled people and their families. It is a victory for Mrs Spencer and the many others who were similarly affected by the Ministry of Health's discriminatory policy," Chief Human Rights Commissioner David Rutherford said.

The Commission now hopes that the clarity afforded by the High Court decision will allow Mrs Spencer and others affected to have their claims for compensation heard by the courts. "The High Court noted that the Ministry of Health has been aware of the challenge to the lawfulness of its policy for more than a decade," Mr Rutherford said. "Resolution for all those affected by the Ministry's discriminatory policy is well overdue."

The Commission remains concerned that the new Act prohibits disabled people and their families from challenging the Ministry of Health's new family care policy, which came into force on 1 October.

The Commission appeared as an intervener in Spencer v Attorney-General as part of its function as an advocate for human rights and on the ground that the proceeding raised human rights issues of general principle and wide importance.

ENDS

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