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* Clause 152 repealed the exemption on 31st December 1999, this clause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.
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- An index of topics
- How was Clause 151 implemented
- Current situation
- Human Rights Amendment 1998 Bill
- Effect of Bill 181 if passed in
- Our view of the government approach
- The future situation
How was Clause 151 implemented
To facilitate the requirements of both Clause 152 and Clause 151 an audit
required to be given to the Minister of Justice by December 31st
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
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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 .
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
- 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 .
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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
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.
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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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