Ministry of Health v Peter Atkinson (on Behalf of The Estate of Susan Atkinson)

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeO'Regan P,Glazebrook,Ellen France,Harrison,White JJ
Judgment Date14 May 2012
Neutral Citation[2012] NZCA 184
Docket NumberCA205/2011
Date14 May 2012

[2012] NZCA 184



O'Regan P, Glazebrook, Ellen France, Harrison and White JJ


Ministry Of Health
Peter Atkinson (On Behalf Of The Estate Of Susan Atkinson)
First Respondent
Gillian Bransgrove
Second Respondent
Jean Burnett
Third Respondent
Laurence Carter Fourth
Peter Humphreys
Fifth Respondent
Clifford Robinson
Sixth Respondent
Lynda Stoneham
Seventh Respondent
Stuart Burnett
Eighth Respondent
Imogen Atkinson
Ninth Respondent

C R Gwyn, M G Coleman and R J Hoare for Appellant

F M Joychild, D L Peirse and J M Ryan for Respondents

A S Butler, S A Bell and O C Gascoigne for the Human Rights Commission as Intervener

Appeal from a High Court's decision that appellant's policy of excluding family members from payment for providing various disability support services to their children breached s19 New Zealand Bill of Rights Act 1990 (“NZBORA”) (freedom from discrimination) — Ministry argued that its scheme only filled in gaps not provided by natural supports (including family) of disabled person — comparison with s15 Canadian Charter of Right and Freedoms (equality rights) — meaning of “discrimination” — what was the appropriate comparator group — whether NZ should adopt Canadian approach to determining discrimination whereby differential treatment had to be based on prejudice, stereotyping, historical disadvantage or had particularly severe effects — whether policy was a justified limit under s5 NZBORA (justified limitation).

The issues on appeal were: what was the appropriate comparator group; whether NZ should adopt the Canadian approach to determining discrimination whereby differential treatment had to be based on prejudice, stereotyping, historical disadvantage or had particularly severe effects; and whether the policy was a justified limit under s5 NZBORA (justified limitation).

Held: The first step under the s19 NZBORA analysis was to inquire whether there had been differential treatment between persons in comparable situations. This raised an issue about who was the appropriate comparator group. The appropriate comparator was those persons who were able and willing to provide disability support services to the Ministry. The Ministry's approach to the comparator had made a value judgment that family members met the needs of their disabled family members without payment. This was not necessarily the case. The notion that the scheme was filling in gaps was artificial and was a concept invented by the Ministry.

The meaning of “discrimination” had to be determined in light of the text and purpose of the NZBORA as required by s5 Interpretation Act 1999 (“IA”) (ascertaining meaning of legislation). Differential treatment of a person or group in comparable circumstances would be discriminatory if, when viewed in context, it imposed a material disadvantage on the person or group differentiated against. The disadvantage had to be material. The reasons for this conclusion were:

•the Ministry's approach was inconsistent with the statutory scheme and purpose of the NZBORA and the legislative history of s19 NZBORA. It required engrafting various factors onto the statutory scheme. There was nothing in the wording of s20L HRA or s19 NZBORA that warranted such an addition.

•differentiation was an important concept in the NZ scheme. There were a number of sections in the HRA which focused on differentiation in treatment.

•the word “discrimination” in s19 NZBORA was not qualified in any way. While plainly the word meant more than differentiation, a comparison could be made with other rights in the NZBORA which included a qualification in the statement of the rights themselves.

•the Ministry's approach was not consistent with the purpose of s19 NZBORA, which was to give substance to the principle of equality. That purpose was best achieved by an approach in which matters of justification were dealt with at the s5 NZBORA stage rather than the s19 NZBORA stage.

•there were differences between the NZ and Canadian provisions which explained why the Canadian approach was not necessarily appropriate for NZ. Section 15 of the Charter was open-ended in terms of the grounds that could be covered. This suggested a more cautious approach to when something amounting to differentiation would be discriminatory. The New Zealand scheme contained its own mechanisms to reduce concerns about possible floodgates arguments, which appeared to have been influential in Canada. Further in the NZ scheme, there was no requirement to demonstrate historic disadvantage, which was one of the factors referred to in Canadian jurisprudence.

At a policy level:

•the definition of discrimination should not trivialise the anti discrimination right. However the choice of the comparator group provided some inbuilt safeguards against ridiculous claims.

•stigma would only attach to a finding of unlawful discrimination, and not intermediate findings of discrimination as part of an analysis that culminated in a finding that it was justified.

•the issue of cost in requiring governmental action to be justified could be overstated, and did not provide a reason for considering justification at the s19 stage. Whoever advanced those arguments at the s19 stage would incur cost in doing so anyway.

•the approach advocated by the respondents had the advantage of simplicity and reflected the actual approach adopted in the field and was consistent with New Zealand's international obligations under the International Covenant on Civil and Political Rights.

The respondents had shown they were able and willing to do the work the Ministry providers were available to do. They had not received paid work because of the Ministry policy. This was a material disadvantage. The adult children respondents similarly had been disadvantaged because they were denied access to the range of paid service providers that other disabled persons could access.

The HC had found that policy was not within the range of reasonable alternatives. None of the matters raised by the Ministry (fiscal effects, implications for the social contract and impact on the policy) raised questions of law. The Ministry had the onus of proving the limit came within s5 NZBORA. There had not been any error in the HC's approach to s5 NZBORA. There was no support for the suggestion that there was a social contract to care for disabled children for their lives on a full-time basis subject to respite care.

The concept of a level of deference being granted to government agencies to allow them space to make legitimate choices did not displace the Court's responsibility under s5 NZBORA. Although some of the policy issues had been addressed in recent times, it had not led to any resolution for the respondents. The HC had correctly assessed the policy issues. As a matter of fact, it was harder to defer when the nature of the policy was unclear, which was the practical reality in this situation.

Appeal dismissed.

  • A The Court answers the two questions of law on which the appellant was granted leave to appeal as follows:

    • (i) First question: Did the High Court correctly state and apply the test for a breach of s 19 of the New Zealand Bill of Rights Act 1990?

      Answer: Subject to one qualification which does not affect the outcome, yes.

    • (ii) Second question: Did the High Court misapply the test for s 5 of the New Zealand Bill of Rights Act 1990?

      Answer: No.

  • B The appeal is accordingly dismissed.

  • C No order as to costs.


(Given by Ellen France J)

Table of Contents

Para No



The contextual setting for the claims


The New Zealand Public Health and Disability Act 2000


The policy


The services in issue


The individual claims


The Atkinson family (first and ninth respondents)


Gillian Bransgrove (second respondent)


Jean Burnett and Stuart Burnett (third and eighth respondents)


Laurence (Nick) Carter (fourth respondent)


Peter Humphreys (fifth respondent)


Clifford Robinson (sixth respondent)


Lynda Stoneham (seventh respondent)


The statutory scheme


The judgments below


The test for a breach of s 19


Differentiation on a prohibited ground?


The comparator


Discriminatory treatment?


The Canadian approach




The New Zealand approach




Consistency with the statutory scheme and purpose


Comparison of the statutory schemes


Policy considerations




Application of the test to this case




The approach to s 5


The objectives relied on by the Ministry


Minimal impairment


The applicable principles




Standard of proof


The relevant principles in determining the standard of proof




Level of deference


Overall proportionality/reasonableness


Addendum—prescribed by law?





The current policy of the Ministry of Health (the Ministry) excludes family members from payment for the provision of various disability support services to their children. The nine respondents (seven parents of adult disabled children and two adult disabled children) all of whom are affected by this policy, made a complaint under Part 1A of the Human Rights Act 1993 (the HRA) to the Human Rights Commission (the Commission). The respondents claimed the Ministry's policy comprised unlawful discrimination against them on the basis of their family status. It was alleged...

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