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Stand up for your rights

Disability Partnership Leader, Peter Wilson, returns to take a hard look at the new Paid Family Carers Bill. He wonders whether the Bill reflects how society sees disability and disabled people.

The recent Paid Family Carers Bill has caused a lot of controversy.

The Bill allows a limited number of disabled people with high needs to pay family carers, but leaves many in the cold, including spouses, people with low and medium needs, and parents caring for children. Family members will be paid at the minimum wage. This is generally less than non-family support workers are paid. More worryingly, the Bill removes the right to legally challenge the government on paid family carers’ policy.

The Bill was passed under urgency with no chance for the public to respond, despite the policies not coming into effect until October. The Bill has been slammed by commentators as unconstitutional and mean spirited.

I will leave the constitutional significance of the Bill to the legal experts. For me, the Bill is linked to how society sees disability. Although, attitudes towards disability and disabled people have improved, I cannot help, but feel that the rights and welfare of disabled people are still not fully respected

As justification for the Bill, the Government claims that if payments were extended to all carers and all disabled adults costs would increase to $65 million a year. Estimating the cost of paying family carers is complicated,  there could even be savings if people switch from service providers to paying family members. The government’s previous estimates of cost were criticised by the courts. The Human Rights Tribunal said that “the financial impact was not likely to be great within the disability sector”.  This view was back by the High Court and the Court of Appeal.

Regardless of what the actual costs are, the Government should have discussed possible issues with disabled people and their allies. The Ministry of Health did hold some initial consultation on policy options, but now we have a Bill passed under urgency and policies developed behind closed doors that are immune to human rights complaints.

On paper we have come a long way in our approach to disability and disabled people. In 2007 New Zealand signed the Convention on the Rights of Persons with Disabilities. This Convention outlines key rights, including that the government closely consults with disabled people when designing legalisation that affects disabled people. The Government did not consult with disabled people on this Bill, despite it having a large effect on disabled people.

My big question is why did the Government think it was okay not to consult?  Is it because the rights of the people most affected, disabled people, are not fully respected by wider society. Did the Government think that after the initial outrage, people would just forget about the Bill?

Unfortunately people have to fight for their rights. Despite all the advances in human rights, the nature of politics means politicians are pulled in many directions at once. They have to balance the expectations of different groups, control spending and keep one eye on elections and their own party. Sometimes they will be tempted to compromise the rights of others to solve a difficult policy challenge or save money.

This is a far bigger risk if you are part of a minority, especially a minority whose voice is not often heard. Disability Commissioner Paul Gibson noted that the Bill was highly unusual in removing the right to legally challenge the government’s new family care policies. Is this because society tolerates more easily the rights of disabled people being violated?

I cannot help, but look at the some of the attitudes in wider society to disability and believe that many people still do not fully respect the rights of disabled people.  Simon Buckingham made some interesting points in his blog about the need for people to recognise the rights of disabled people.

Is it time for disabled people and their allies to take a tougher stand on their rights? Have we become complacent with all the ‘paper gains’ in recent years?   

What as individuals and as groups can we do to ensure society respects and recognises the rights of disabled people? We can all play an important role in ensuring the government respects, protects, and fulfils human rights. As the human rights education manual, Human Rights. YES! says

“Just because human rights law exist does not make human rights a reality in people’s lives.  Positives attitudes and good intentions are not enough either.”

The manual also notes that everyone benefits, when people stand up for their rights.

“Because human rights are common to all people, even an effort by a single individual to assert his or her human rights represents an important initiative on behalf of every person.”

Now we want to hear from you. What do you think about the Paid Family Carers Bill and disability rights? More importantly what action do you plan to take?

7 Responses to “Stand up for your rights”

  1. Raewyn Hailes says:

    This is outrageous. Removal of the right to contest decisions and no right of appeal might start with disabled people in this instance. I see it as Government taking away human rights of all people.

  2. Rosemary McDonald says:

    What action?? How many attended the court hearings? How many attended the consultation workshops?
    How many made an individual submission?
    How many have lodged a complaint to the HRC?
    How many have read the HRRT Decision 8th Jan 2010…exhaustively covers ALL the issues, yet written in plain English…a MUST read.
    How many have written to Labour and the Greens to see if they will repeal this if elected?
    How many are going down to the Beehive and expressing how we feel?
    Peter and I have done all the first six, who is going to join us for the seventh???

  3. Gill Bransgrove says:

    As a plaintiff in the OHRP vs MoH payment of carers for disabled family members case, I thought we were getting help for all family members of disabled people.
    We battled long and hard under huge duress and with a lot of humiliation for just that.
    Ie equal pay (same hourly rates and conditions) for equal work, that the government pays anyone else to do.

    The MOH/NASC assessed disability needs for people with all disability needs, and despite still factoring family in as ‘Natural Supports’, they allocated funding according to individual disability needs. This funding available to anyone else to be paid, should have been payable to all family/whanau too, without further discrimination and exploitation. That types and levels of disabilities are not funded for carer family members in the same way, is further discriminates.

    Choice and safety for the disabled person should have been paramount with legislation made to protect vulnerable people and their families/whanau.

    The Bill recently passed in parliament under urgency, bypassed the usual parliamentary processes of select committees and overriding all the judicial courts decisions and intents has resulted in continued discrimination and exploitation. The autocratic way this bill was passed is horrifying, unjust, undemocratic and a breach of the Bill of Rights, Health and Disability Strategy etc and also the United Nations Convention which NZ signed up to. That the judicial system via the courts has been disregarded is frightening. We should have been able to rely on those in power to do the right thing!

    The remaining 5 parent, and 2 adult children, plaintiffs in this case (and Mrs Spencer in a separate case) still have some redress. We plaintiffs are due to proceed with part 2, of the original claim, on 14 Oct 2013, and the Crown/MoH can appeal this up to the Supreme Court too… so the end is still a long way off.
    The support of CCS Disability Action (including giving evidence) and the help of many others, is much appreciated. Last year, at the Court of Appeal we plaintiffs, our children and a few extras were up against 50-60 MoH & Crown officials!

    I hope all the wise and pragmatic Judges continue to work with the integrity and honesty that they have consistently shown to date. I also hope that their decisions and directives will lead parliamentarians in government to eventually do the right thing, and rectify this Bill.

    Justice delayed is justice denied, but I can only believe that we are paving a way forward for the next generation, so the suffering, discrimination and exploitation will stop.

    However, we need to stand united, have the help of the public, our support agencies and some people in very high places with very big boots!

    Disability (United Nations Convention on the Rights of Persons with Disabilities) Bill

  4. Allyson Hamblett says:

    As this was being debated in Parliament I was talking to Kevin Hague via facebook. He suggested we need the Bill of Rights need strengthen and to become entrenched so it becomes supreme law. We need to make it so that human rights can’t be denied by passing legislation.

    It’s been great that political commentators from the NZ Herald and other media have written about this. This issue cannot be forgotten about, but pressure has to be kept up.

    It should become an election issue.

  5. Rosemary McDonald says:

    I have emailed both Labour and the Greens re; their stance on this issue, now that the hot air has dissipated.

    1. Will they repeal the offending and offensive ammendment to the PHDAct?
    2. Will they accept the decision (Atkinson and Others) and undertake to ensure a fairer distribution of the disability dollar?

    Have not heard back yet…but there again…I am just the unpaid carer of my high tetraplegic partner…what would I know?

  6. What a relief… The NZ Law Society are now backing us!

    Limits imposed by new law alarming
    Thursday, 30 May 2013, 9:29 am
    Press Release: New Zealand Law Society
    MEDIA RELEASE – For immediate use, 30 May 2013
    Limits imposed by new law alarming
    The New Zealand Law Society has written to Attorney-General Christopher Finlayson QC to advise that it is considerably concerned with some of the aspects of the New Zealand Public Health and Disability Amendment Bill (No 2) which was passed through Parliament under urgency in one sitting day.
    Law Society President Chris Moore says a section in the new law limits the right to judicial review. Although the Attorney-General correctly advised Parliament that this could not be justified under the New Zealand Bill of Rights Act 1993, the Bill was passed.
    “Ousting the jurisdiction of the courts is a step Parliament should only consider in truly exceptional cases, where there is compelling reason to do so, and it should be able to be rigorously debated,” he says.
    “There are constitutional implications here of which all New Zealanders should be aware. Not allowing the courts to review decisions made in exercise of a legislative function and refusing to provide reasons for rushing the legislation through is quite alien to the expectations we have of our parliamentary process.”
    Mr Moore says the Law Society has written to the Attorney-General as the appropriate law officer. He says it is important to note that Mr Finlayson quite properly drew Parliament’s attention to some of the problems through his report which was required by section 7 of the New Zealand Bill of Rights Act.
    “In spite of that, it is of considerable concern to the Law Society that this Bill proceeded through Parliament in a single sitting day, under urgency, and without the benefit of select committee scrutiny, public submission or informed debate. No reasons have been given as to why this was necessary.”

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