Attorney-General on Behalf of The Ministry of Health v Margaret Spencer

• Jurisdiction: New Zealand
• Judge: Harrison J
• Judgment Date: 04 May 2015
• Neutral Citation: [2015] NZCA 143
• Date: 04 May 2015
• Court: Court of Appeal
• Docket Number: CA736/2013

[2015] NZCA 143

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Harrison, French and Cooper JJ

CA736/2013

BETWEEN

Attorney-General on behalf of the Ministry of Health

Appellant

and

Margaret Spencer

First Respondent

And

Human Rights Review Tribunal

Second Respondent

Counsel:

M R Heron QC and U R Jagose for Appellant

J A Farmer QC, S L Robertson, H L Quinlan and M A Sissons for First Respondent

Second Respondent abides decision of the Court

A S Butler and O Gascoigne for Human Rights Commission as Intervener

Appeal by the Ministry of Health against a High Court decision relating to an application for disability support allowance by a mother who was the carer of her 46 year old Downs Syndrome son — in a previous decision, Ministry of Health v Atkinson, the Court of Appeal (CA) had upheld the Human Rights Review Tribunal's declaration that a policy that refused disability support to parents of adult disabled children (the Atkinson policy) was discriminatory on the grounds of family status contrary to the Human Rights Act 1993 — Tribunal had suspended for an indefinite period the effect of its declaration from the date it was made — HC held that (1) suspension order was invalid, (2) the Ministry acted unlawfully by refusing to consider the respondent's application for a disability support allowance and that (3) pt 4A New Zealand Public Health and Disability Act 2000 (NZPHDA) (as amended following Atkinson), did not preclude the respondent from applying to the Tribunal to be joined as a plaintiff in the Atkinson proceedings — whether the declaration was only effective as a dispute resolution mechanism between the parties — whether the suspension order was lawful — whether s70D(2) pt 4A NZPHDA (Any family care policy that the Crown or any DHB had immediately before the commencement of this Part continues in effect) validated the Atkinson policy both prospectively and retrospectively.

Held: 1. Scope of declaration: There was no doubt about the status of the Atkinson declaration. A breach of pt 1A was defined as: “an act or omission” which was inconsistent with s 19 NZBORA. For the purposes of the s2(1) HRA, an act included a “policy [or] practice”. A practice or policy was one which by its terms applied generally, not just to the particular parties. The — policy fell squarely within this definition and was found to be unlawful

The Ministry was a party to the Atkinson proceedings. On the premise that the Tribunal was of competent jurisdiction the Ministry was bound by the Tribunal's declaration that it had committed a breach of pt 1A HRA by adopting the Atkinson policy, estopping it in any subsequent litigation from denying or disputing the declaration on its merits. The Ministry applied the Atkinson policy to S's application for a disability support allowance. There was neither an arguable difference between the applications by S and the Atkinson plaintiffs nor a principled basis for the Ministry to deny that the Tribunal's declaration bound it equally in S's case. The HC's decision in Atkinson in 2010 not only bound the Ministry and the Atkinson plaintiffs through the doctrine of res judicata. It also indirectly bound S through the doctrine of precedent.

Moreover the effect of the HC and CA decisions was that the Atkinson policy was in breach of pt 1A and unlawful, both at the time of the declaration and retrospectively from its inception. Subject to the interpretation of pt 4A NZPHDA, any available argument about the scope of the Tribunal's declaration had been overtaken by a common acceptance that the Atkinson policy was unlawful.

The Tribunal's function was not limited to providing an “inter partes” dispute resolution mechanism. There was nothing in the text or context of the HRA to support this. It had been held that held for the purposes of s 88B Judicature Act 1908 that the Tribunal was an inferior court. A tribunal was an inferior court where: (1) the members were appointed by the State; (2) the decision maker fulfilled a public function; (3) the body had power to enforce orders that it made; and (4) the statutory provisions (here the HRA) referred to proceedings before the body as “judicial proceedings” ( Daimler AG v Sany Group Co Ltd). All four criteria were satisfied here.

2. Suspension order: Even assuming the Tribunal's suspension order was valid, the Ministry appealed to the HC against the Tribunal's declaration. Section 123(2)(b) HRA limited the right of appeal to a decision granting one of the remedies prescribed by s92I (Remedies). In December 2010 the HC dismissed the appeal, thereby confirming the decision. In May 2012 the CA dismissed the Ministry's further appeal. So, even if the suspension order was valid, it ceased to have effect from December 2010. The Ministry could not rely on the suspension order to justify its decision in July 2012 to decline S's application for funding.

Considering the substantive argument, the effect of a suspension order was temporal, not substantive. The Ministry requested the suspension order primarily to give it time to address the logistical effects of the declaration, not because it was asking the Tribunal to reverse the substance of its decision. Rights of appeal were provided for that purpose. The terms of the order were not logically capable of construction either as a statement that the Ministry's discriminatory act was not unlawful or, in the way the argument was advanced, as an affirmation that the policy was lawful or valid. Section 92O(2)(d) did not enable such a course. The Tribunal could only suspend the “effect” of “any remedy granted”. The Tribunal had already found the policy was unlawful: its substance could not be altered by an order purporting to suspend its formal embodiment.

Any temporal deferment had no effect on the underlying substantive finding of invalidity and there was no apparent purpose in deferring a declaration which did not require the Ministry to take any steps in response. It was not the Tribunal's declaration that had the effect of making the policy unlawful: the unlawfulness arose from the breach of the HRA. The Ministry acted unlawfully in July 2012 when declining S's renewed application for a disability support benefit.

• (3) Part 4A NZPHDA: The issues for statutory interpretation were:

• (a) Was the Atkinson policy a “family care policy” as defined in pt 4A?

• (b) Did pt 4A validate the Atkinson policy both prospectively and retrospectively?

• (c) Did s70G NZPHDA (Persons generally not to be paid for providing support services to family members) prevent S from joining and seeking compensation in the Atkinson proceeding before the Tribunal?

Section 70B NZPHDA defined a “family care policy” as any statement in writing that permitted, or had the effect of permitting, persons to be paid, in certain cases, for providing support services to their family members. Section 70E (Claims of unlawful discrimination in respect of this Act or family care policy precluded) limited rights of complaint about pt 4A or a family care policy.

In Atkinson, it was found that there was a blanket, prohibitory policy against payment to parents, spouses and other resident family members. That finding was not appealed, and there was no basis on which to characterise the policy differently to the description given it in Atkinson and by the Minister himself when introducing the 2013 Amendment Act. A no exceptions policy of this nature could not be construed as permitting payment “in certain cases”.

The savings provision, s70G, only applied to payments made to a family member which “were not permitted … by a family care policy”. The Atkinson policy did not permit payment to specified family members under any circumstances. The possibility that Parliament might have assumed its use of the term “family care policy” incorporated the Atkinson policy when enacting a savings provision did not materially assist in construing the statutory definition of a family care policy.

Further if the Ministry was correct that the definition of a “family care policy” included the Atkinson policy, then s70B had the effect of making pt 4A inconsistent with s19 NZBORA. If Parliament intended to limit a right prescribed by NZBORA and actively respond to the Atkinson decisions in a manner inconsistent with the Tribunal's findings, it would be expected to do so clearly and explicitly, not by a sidewind. Clear words were necessary before the court would read legislation as intending to remove rights protected by the NZBORA (s6 NZBORA).

With one exception all of the provisions of pt 4A were prospective, consistent with the principle that enactments in general had prospective effect only. The only one provision of pt 4A that was possibly retrospective simply affirms the authority of the Crown or a DHB to implement family care policies, as defined. The terms of pt 4A in light of their purpose applied only to the prospective funding of disability support services provided by family members. While pt 4A was, Parliament's response to the Atkinson decisions, if the legislature intended as a component of that response to overrule the Atkinson declaration and give the Atkinson policy retrospective authority, it could and should have said so.

It did not follow from concerns expressed by the executive about cost implications that Parliament intended persons in S's position to be denied any redress for unlawful discriminatory acts carried out prior to enacting pt 4A. Parliament had to be presumed to be aware that, if an historical claim was made and sustained, the impact of any monetary remedy was a matter that had to be considered by the Tribunal.

Section 70G(1) did not preclude S from being joined as a plaintiff in the Atkinson proceedings. Section 70G(1) provided that the Atkinson proceedings “may be continued or settled as if [pt 4A] … had not been enacted.” It said nothing about the availability or otherwise of S's right to join those...