I think National just broke our constitution

Our constitutional arrangements work on an implicit bargain - the principle of comity - that the Courts and Parliament don't mess with each other's turf. I think that bargain just got broken.

I really don't want to be "that guy" who leaps up at monotonously regular intervals to proclaim that a latest constitutional outrage marks some sort of nadir in governmental practice. But I'm going to have to run that risk by following up a post accusing the National Government generally (and Justice Minister Judith Collins in particular) of manifest bad faith regarding electoral reform with another one claiming that it's just done something that tramples all over a basic foundational principle of our constitutional order.

(But before we get to that, and in the interests of "balance", may I temper any previous criticism of Judith Collins with a bouquet for both her announcement of more money for restorative justice conferences and her recent, somewhat frenetic and sometimes odd activities on twitter. There we go - friends again!)

Back to the latest outrage, however. In the wake of the budget, the Government is pushing through a whole bunch of bills in one great rush of non-stop, orgiastic lawmaking. Most of these measures are to do with the budget. But at least one isn't - tucked away amongst the things apparently requiring Parliament's urgent attention is a proposal to further amend a law that Parliament amended just a mere month ago. Part of this new amendment legislation is intended to extend still further the new offence provisions covering sea-bourne protests against oil exploration and production activities - something I posted on here. Normally this sort of sloppy (and highly questionable) law making would deserve a post of its own, but it's not the real target here.

Because alongside everything else, the Government rushed through - and I mean rushed through ... it got passed right through the House the same day debate on it commenced - a bill intended to sort out the problem of paying family members of severely disabled people to look after them. What is that problem, you ask? Well, it goes back a bit, so some scene setting is necessary.

For the longest time, the Ministry of Health (MoH) would not pay family members who chose to stay home and act as caregivers for their disabled loved ones. They would, however, pay for an outside caregiver to come in and do the job. This rankled at least some family members; why should their labour (lovingly given though it was) be taken for granted and their sacrifices for their family go unrewarded, whilst a stranger coming in to do the job could get paid for it?

So in 2010, some family caregivers went off to the Human Rights Tribunal and challenged the MoH's policies on the grounds that these discriminated against them on the basis of their family status; which in turn breaches their rights under the New Zealand Bill of Rights Act, 1990. They won, but the Government appealed the matter to first the High Court, and then the Court of Appeal ... where the family members won again. And so, finally, the Government caved and recognised it was going to have to come up with some policy that would deal with the problem.

As announced in the budget, that policy takes two forms. First, the Government passed legislation that gives a statutory underpinning to the "family care policy" setting out who will (and who won't) be paid. This statutory underpinning is in section 70C, and will say:

[When the law kicks in], neither the Crown nor a DHB may pay a person for any support services that are, whether before, on, or after that commencement, provided to a family member of the person unless the payment ispermitted by an applicable family care policy ...

With this statutory provision in place, the Government will work out with DHBs over time just who will be eligible to be paid (and how much) under the family care policy. At the moment, it looks like only those relatives caring for persons aged 18 or more will be ... and spouses looking after each other won't be. Furthermore, the payment rate looks to be at the level of the minimum wage, which is less than externally contracted carers would get.

So, it's a policy with a lot of gaps in it (caring for your kids or your spouse still is unpaid labour), and even those family members whom it covers don't get the same pay rate as strangers coming in to care for their loved ones. Which has made some of the family caregivers in question a bit angry.

[T]he outlay over four years has been dismissed as "miserly", and will still discriminate against some relatives, according to one of the parents who took the Ministry of Health to court.

"We took a case for all disabled people," Cliff Robinson of Thames said. "It seems like, after all our years and years of fighting to get a decent scheme, we've got a half- baked one. There will be challenges to this."

Well, what form might such challenges take? Remember section 70C above - it specifically prohibits any caregiver being paid anything unless the family care policy allows it. If the policy says you don't get paid, then Parliament says you can't be paid. But getting around that problem is easy enough ... the family caregivers can just challenge the family care policy itself, on the grounds that it discriminates on the basis of family status. After all, the policy isn't a statutory provision - it's something that the Government (that is, the executive branch) has worked out with DHBs. And the Government cannot make policies as to who will/won't get paid that breach the New Zealand Bill of Rights Act 1990 (unless specifically authorised by Parliament to do so). After all, the courts backed this argument last time, so you'd think the family carers would have a better-than-even chance of winning this time around.

Now, this is where things start getting a bit weird. I assume the above is roughly the advice that was given to the Minister as the Bill was being put together. I say "assume" because all the relevant discussion of legal risks produced by the legislation has been redacted from the publicly available information about it. You can see this for yourself in the Regulatory Impact Statement that must be provided to the House when the Bill is introduced (there's a more arresting visual of it here). So not only can't I say for sure what risk there may have been that the legislation would have had the effect of dumping the Government back in court, neither can the MPs who are being asked to debate it and vote on whether it should be law.

Pause and think about that fact for a moment.

Because, things are about to get even weirder. What's a good way, you might ask, to create a policy on paying family caregivers without running the risk of it being overturned? And the answer I assume you'd give is "make sure that the policy isn't unlawfully discriminatory, so there is no reason for this to happen." If so, you are an idiot. Because there's a far, far better way to respond.

You simply tell the Human Rights Review Tribunal and the courts that they are not allowed to look at the policy and decide whether or not it is unlawfully discriminatory. That's just what the Government is seeking to get Parliament to do under section 70E(2):

[When this law kicks 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.

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.

But what Tony Ryall's doing here is, as far as I know, unprecedented (at least in recent constitutional history). Here's what the Legislation Advisory Committee has to say about attempts to "oust" the jurisdiction of the courts to examine some matter:

Ouster clauses are objectionable because they interfere with the courts' constitutional role as interpreters and expounders of the law. In general, legal obligations are enforceable by the courts. Where judicial review is ousted, it is often argued that the public body whose decisions cannot be reviewed is not subject to the law and therefore has legally unlimited power. ...

[T]he undoubted normative strength of the presumption against ouster clauses means that Parliament should only seek to oust the courts' review jurisdiction in exceptional cases.

And how "exceptional" is the current situation? Well, it's not exceptional enough to stop Attorney General Chris Finlayson declaring the Bill to be inconsistent with the Bill of Rights Act, s.27(b) right to justice:

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'll simply close with a reminder of what Sir Kenneth Keith says about our Constitution in the foreward to the Cabinet Manual, the "bible" of good practice every Minister is expected to know by heart:

A balance has to be struck between majority power and minority right, between the sovereignty of the people exercised through Parliament and the rule of the law, and between the right of elected governments to have their policies enacted into law and the protection of fundamental social and constitutional values. The answer cannot always lie with simple majority decision making. Indeed, those with the authority to make majority decisions often themselves recognise that their authority is limited by understandings of what is basic in our society, by convention, by the Treaty of Waitaingi, by international obligations and by ideas of fairness and justice.