Human Rights Act .

In the original Human rights Act 1993 there were three aspects that were particularly important to the elderly.

* Clause 21 (1) (i ) allowed discrimination on the basis of age in employment against those up to the age of sixteen years and those whose age qualified them for national superannuation - this provision to be modified to be only up to the age of sixteen after 31st January 1999 .

* Clause 151 required the Government to modify its legislation to accord to the Act by the 31st day of December 1999 .
It also stated that the Act would not over-ride existing legislation which discriminated on the new prohibited grounds of disability , age , political opinion , employment status , family status and sexual orientation .

* Clause 152 repealed the exemption on 31st December 1999, this clause anticipating that the Government would identify conflicts in legislation , regulations , government policies and practices and resolve them by 2000.

An index of topics: How was Clause 151 implemented
: Current situation
: Human Rights Amendment 1998 Bill (181)
: Effect of Bill 181 if passed in present form
: Our view of the government approach
: The future situation

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How was Clause 151 implemented

To facilitate the requirements of both Clause 152 and Clause 151 an audit review was required to be given to the Minister of Justice by December 31st 1998 . The government would then have had 1 year to make any administrative or legislative amendments.

The audit review , called " Consistency 2000 " , was carried out by the Human Rights Commission and Government departments.
In 1997 the government reviewed the "Consistency 2000 " project and decided that the review should cease .
On October 23rd 1997 , the Minister of Justice announced Cabinet's decision to introduce legislation in respect of Consistency 2000 and to alter the process .

The decision was as follows ;

Existing or future Acts and regulations will not be overridden by the Human Rights Act . Any possible conflicts with the Act in existing Acts will be addressed as they are amended which means that discrimination will not

be addressed unless current legislation is up for review so that there is no short term way for unlocking unjustified discrimination in Acts or regulations. Government policy and practice must comply with the Human Rights Act from January 1st 2000 ,unless specifically exempted by legislation or regulation and specific legislative exceptions must be justified but regulations are of concern as they are not subject to the same parliamentary processes as Acts . Also legislation will be introduced removing the Human Rights Commission's duty to examine all Acts , regulations , policies and practices and to report to the Minister of Justice by 31st December 1998 and further the Commission will be relieved of its responsibility to complete Consistency 2000 and report to the Minister by 31st December 1998.84

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The current situation is that :

a) Parliament has removed, as the Clause 21 of the Act requires , the age discrimination for those entitled to national superannuation so that termination of their employment is now a matter of arrangement thus fulfilling the requirements of Clause 21 (1) ( i ) .

b) An amendment to the Human Rights Act , Human Rights Amendment 1998 ( 181-1 ), which was introduced into Parliament in 1998 effectively disbands "Consistency 2000 " project .
It exempts the government from conforming to the Human Rights Act . This is all packaged as a revised approach to "Consistency 2000 " project but is in actual fact an amendment which would have allowed the then government to ignore the Human Rights Act .

c) As the government had neither proceeded with the implementation of Clause 151 nor had succeeded in bringing into law the Bill 181-1 it became necessary legally to extend the time for Clause 152 . Accordingly a further bill 315 was introduced and passed moving the compliance date to December 2002

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Aspects of the Human Rights Amendment 1998 Bill (181)

This bill passed its first reading but was not presented for second reading basically because the then government did not have sufficient numbers to pass the second reading
The main features of the revised approach which are incorporated in this amendment bill are as follows

the human rights Commission will be relieved of its statutory duty to report on inconsistencies .
there will be a clear statement that the Human Rights Act 1993 will not override other legislation or regulations .
legislation and regulations will be considered for any inconsistencies with Human rights Act as they come up for review
Government policies and practices will be required to comply with the HRA unless they have a specific exemption
Chief executives will be responsible to identify and resolve compliance issues
existing process for taking human rights into account in policy and legislative development are to be strengthened

In short the government can ignore the requirements of its own legislation but what is of real concern is that
a) regulations are not subject to the same parliamentary process as Acts and
b) there is not the mandatory oversight of the expert independent Human Rights Commission .

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What will be the result of this amendment if it is actually passed in its present form?

Effects on current policy

When funding health and disability support services , the Government endeavours , in accordance with the objectives of the Health and Disability Services Act 1993 , to allocate services to groups of people , on the basis of their perceived health needs and ability to benefit from those services . In determining the needs of particular groups consideration is given to a range of factors , some of which may reflect grounds of discrimination under the Human Rights Act such as disability or age .
Thus , government funded health and disability support services allow the use of access and priority criteria and other allocation mechanisms that distinguish between groups of people on the grounds of disability , sex , age , employment status and family status .
If the legislation is passed then this discrimination will continue

Use of present concessionary cards and asset and income testing

The use of community service cards , high user health cards and prescription subsidy cards to determine service priority , charges and access , and the use of income and asset testing to determine the DSS Residential Care Subsidy , are specifically authorised by other statutes or regulations.
Thus these Acts or regulations provide clear legislative authority for government to differentiate on grounds of disability , age , sex , employment status and family status in targeting government funded health and disability services.

An escape clause to limit future liability

The amendment also exempts unqualified fiscal risks that could in the future penalise the Crown or providors if they were found in breach of the original Human Rights Act .

Policies that will not be affected

Policies such as Maori provider development , mental health gain priority , specific services for Pacific Islands people and ethnic minorities or refugees are clearly permitted under section 73 which allows measures to ensure equality

Health treatment according to age

The Health Funding Authority has issued a paper " How shall we prioritise health and disability services ?"- this advances , the paper states , the cause of evidence-based , principled decision making . In effect it is rationing on the basis of health outcomes using the QALYS , the Quality Adjusted Life Years approach . The aged are disadvantaged by this approach as it is considered that younger people are more likely to benefit by health intervention than older people so that age is discriminated against .
If the amendment is passed this approach would be legal thus enshrining this principle .

In areas other than health , disability support service educational development and vocational assessments use prohibited grounds of age and marital status . Back to index

Our view of the government approach to the Human Rights Act

We have always been of the opinion that the Human Rights Act passed here in New Zealand was for overseas consumption so that politicians may dance on the International stage while denying their own countrymen the protection available through the Act . Laws conflicting with the Human Rights Act continued to be passed since 1993 and nothing has been done to bring existing legislation into line

There are many fringe groups involved in the Human Rights areas but inevitably all groups become involved as like the inevitability of taxes so there is the inevitability of growing old and then becoming subject to the discrimination associated with old age in major areas.

Specific areas of discrimination

The Social Security Amendment (No 3 ) Act contains clauses allowing the appropriation of peoples property based on age to pay for long term geriatric care .
The Social Welfare Reform Bill contains , Clause 44 Certain Grounds of discrimination in Human Rights Act 1993 , not to apply so that rather than try and conform the Government chose to ignore its own legislation
This Clause 44 aims to protect the Department from claims against Human Rights Act mainly to protect decisions made pursuant to a Ministerial direction , welfare program, or any document that would be covered by Clause 22(1) of Official Information Act which refers to right of access to the internal rules and policies affecting decisions - this effectively excludes the Dept. from being taken to task arising from any information obtained under the Official Information Act. concerning their policies.
There is also the current legislation that supports income and asset testing for Rest Home care - when this was introduced , access to Rest Homes was on a voluntary basis and provided an alternative lifestyle so that it was reasonable that contribution to the overall cost where it was the residents choice should be expected . Presently however entry to Rest Homes is now based on assessment of need and this need is generally the result of old age so the regime is now totally discriminatory .
There are many other instances of deliberate discrimination in the present laws and our understanding was that the Clause 151 of the Human Rights Act was included to allow the bureaucracy time to bring forward the necessary changes .

We consider this attempt by government to be a flagrant infringement of our members and the citizens of New Zealand's rights and only legitimises the excesses of any future government of whatever political leaning .

In the Human Rights Act itself there are many stated exemptions to the Act so that the statement that New Zealand Superannuation being age based would have to be abolished is pure political speak as the necessary exemption could easily be drawn up. Back to index

What is the Future situation ?

There has been no media attention to the Human Rights Amendment Bill ( No2) which was presented to the House August 1999 . This Bill , 315-2, does not replace the ill fated Bill 181-1 which was never presented for the scheduled October 1998 second reading because the government did not have the numbers to pass the legislation which exempted any Act or regulation from conforming to the Human Rights Act .

Bill 181-1 can be brought forward for a second reading any time but that is unlikely with the change of government.

This new Bill 315-1 allows the government two more years , until December 2002 , to get its laws changed to conform and also reinstates the Consistency 2000 project with some extra funding . There are many of our laws that are discriminatory so this new Bill should be welcomed by all not the least those that are currently affected by such laws .

It will be interesting to see how the new government handles the more difficult aspects such as the Asset and Income testing for long term residential and hospital care .

So all the current discriminatory laws and regulations remain as they are awaiting attention from the current government.

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