New Zealand Public Health and Disability Amendment Bill (No 2)

It was clear in the court decisions with regard to the Atkinson case that the court believed that there had been a failure in the process that the Crown, since the court case was lodged in 2001, had undertaken in the development of the family care policies of the various institutions of the Crown that operated such policies, namely the Ministry of Health and the district health boards. So, as a result of the court decision and the Government’s decision not to appeal the Court of Appeal decision, it was very important that we undertook a publicly defensible process in respect of the development of the legislation. The core procedures of that are here in the New Zealand Public Health and Disability Amendment Bill (No 2).

That involved the Government setting up a technical advisory group in order to provide sector input into the development of the consultation process and the options for consultation. A very wide public consultation process was run in 2012, and feedback was incorporated into this policy. There were 12 regional workshops, two hui, and one Pacific focus group, with a total of 273 people attending these consultation meetings. There was also a meeting with the plaintiffs and with the Consumer Consortium. In addition to the face-to-face meetings, 619 written submissions were received, and the Ministry of Health worked closely with the other agencies in support of developing this policy.

Members have asked why the policy is aimed specifically at disabled people in high and very high needs situations. Well, the Government has to meet the costs of paying family carers of disabled people receiving health-funded support from within the existing health and disability funding. Targeting the policy to people in very high and high needs situations enables that funding to be targeted at those with greatest need. This is consistent with the views of the carer and disability communities, expressed through the consultation, with 68 percent of all submitters and 71 percent of family carers favouring the payment of family carers and disabled people with high or complex needs, if targeting is to be used. Further, the system that we propose for the payment of disabled people and their families is also a result of combining the various elements supported by people during the consultation.

Clause 4 is the operative clause. What it essentially does is indicate that the Ministry of Health and district health boards can have, and always have had, family care policies. Those family care policies are able to discriminate on the basis of a number of areas in order to facilitate the policy. Government social policy has always discriminated. Indeed, you get the unemployment benefit or the job seeker allowance only if you are unemployed or a job seeker. You get superannuation only if you are of the age of entitlement. You get the child care allowance only if you are of a certain age or are in a certain position. So discrimination has always been innate.

What is clear from the court case is that in order for the Government to be able to operate a fair and reasonable family care policy, we do need to have the ability to discriminate, and we believe that that is a fair basis on which this legislation is being provided. Coupled with that is $92 million over the next 4 years. That is a very significant and fair investment that we are making in the health and disability sector. I pick up on the point that Mrs Delahunty was making; it is a health and disability sector, and we think this will be a very significant investment.

This is the third time that any country in the world has agreed to pay family carers’ wages for caring for other family members. No countries in the world do what this Parliament is about to do, other than the Netherlands and Sweden. So this is a very significant move. Previous Governments have ruled this out—previous Governments have ruled this out—as recently as April 2008.

Clause 4 of the bill is the operative clause. It will enable the district health boards and the ministry to establish family care policies, as indeed they always have, and to have the ability to put in place what the Government wants to happen, in order to support the families of those caring for some of our most vulnerable in the community, with the very substantial investment of $92 million over the next 4 years.

I know that one member in this House described $17 million as minuscule. I have to say that in the tight financial times our country has had since the global financial crisis, the investment of $92 million is actually a pretty fair response, and is part of the Government’s solution to the Atkinson court case.

Clause 4 is the major part of the New Zealand Public Health and Disability Amendment Bill (No 2). It is the part where we ought to have a lot of information, where we ought to be very clear in this Chamber as to what we are voting on and what the impact is going to be on the many disabled people whom this bill will affect. I was hoping that maybe the Minister of Health would have started to answer some of the questions that have been raised by this side of the Chamber.

We have had the usual speeches from the Government, such as “I move that the question be now put.” We have had very little contribution other than that. We have had one contribution from the Minister for the whole day. We started this debate at 9 o’clock this morning, or thereabouts. The Minister made the contribution that he has to make with the first and second readings, reading out his speech. He has sat mute in that chair until a few moments ago, and did not answer a single question raised by this side of the Chamber. This is our only opportunity to be able to find out how the bill will work. If the Minister cannot answer it—and obviously he is not in the chair any more, so he is not there to answer it—we are going to have to rely on the Minister in the chair, Mr Woodhouse, to answer the questions. Or maybe Dr Hutchison knows the answers to the questions, but I suspect that he is being kept in the dark as well.

Otherwise, tell me this: what are the operational details of this policy? Who does it affect? How do we define a person of “high need” and “very high need”? These are very important questions. Do you know why we cannot get the answers? Because the Minister informed the media yesterday—not Parliament—that they have not worked out the operational details of this bill, and that the operational details of this policy are still being finalised. Information on how and when people can be assessed for eligibility will be available when, do you think? Will it be this afternoon? Could it be on Monday? Could it be in the next month? No, it is in September this year. That is when the operational details of this very important policy, which has been rammed through Parliament with no scrutiny from the public, will be available.

So do we know who will be defined as having high and very high needs? Can the Minister please tell us today who these people are. Are they people with motor neurone disease? Are they people with muscular dystrophy? Are they people with severe physical and neurological disabilities? Are they people who have got a mental illness? Are they people who have got needs for palliative care, who are terminally ill? Who does this bill cover? Why do we not have that information? The operational details are absolutely crucial to knowing what we are passing. The sheep opposite are all going to vote yes, and not one of them can tell us the operational details of this policy. That is shameful—absolutely shameful. Why would we be rushing through a piece of legislation when the work has not been done?

I can tell you how we know the work was not done. The regulatory impact statement arrived on the table of this House today. Most of the important stuff was blanked out, which is very much a sign of a rushed piece of policy work and a rushed piece of legislation. The Minister did not want this part of the bill going out to the public because it is this part of the bill that people would have questioned. They would have asked: “How is it going to work? Which of our family members are affected by this?”. There would have been hard questions for the Minister to answer, and he did not want to face them. I think it is disgraceful that we do not have the operational details of this policy.

The Minister himself, in his very short contribution on the bill after the many hours we have been debating it, mentioned the technical advisory group. Well, the technical advisory group was a very narrow group indeed. In fact, we heard from the people who do the caring—people from Carers New Zealand. I raised earlier on, I think in my second reading speech, the question of whether any of the members opposite met with Carers New Zealand. Did they know Carers New Zealand? Had they met with Carers New Zealand? Did they know anything about the organisation, which works with thousands of carers across New Zealand and has got a very good handle on what is going on?

Well, you would have thought that it would have quite a major impact on the technical advisory group. In fact, it had very little—very little—impact at all, because the Government did not have any engagement with the carers in the policy design or the systems that were to be used. It got one person on the technical advisory group, and do you know what her role was? Her role was to respond to a series of questions from the Ministry of Health. That was her role. How could that be considered as input into policy development, to ring her up and say “What do you think about this?” Where is the real input that you would expect from carers in New Zealand? That is the sort of feedback that we have been getting since we started to debate this bill. The truth comes out eventually. Even when a Minister wants to ram through a piece of legislation, and wants to restrict debate to keep it tight so that people cannot really see what is going on—feed them manure—eventually, it comes out.

Members of this House have been receiving the same emails that I have been receiving, so we have moved a number of typescript amendments to this particular part of the bill, clause 4. I think some of them really go to the heart of what people have been saying. One in particular is—and my very good colleague Ruth Dyson has moved these amendments—that we amend clause 4 with a new section 70D(3)(c) and insert: “Any lower rates set may not be lower than the minimum adult rate of wages payable to workers set under section 4 the Minimum Wage Act 1983.”

I challenge any member there to stand up and tell this Committee, the people of New Zealand, and those who care for the most disabled people in our society, that they should not be paid a rate similar to other carers in New Zealand. Stand up and say that their worth, their work, is not valued enough to pay them a similar rate to other carers. The ministry, in its report, said that they ought to be paid around $16 an hour. This Government has said they will be paid $13.75. These people are not working just a 40-hour week—although that is what they are going to be paid for—they are working 7 days a week, 24 hours a day, except for the brief times that they get some respite care.

I say to the members opposite: do not vote to pay them only the minimum wage; vote to have them have a fair wage—a fair wage—for looking after their family members. I will be absolutely astounded if the members can go out of this House, go back to their constituencies, and say that the carers of the most disabled people in New Zealand are worth the minimum wage only—“Don’t worry that you do a 24-hour-a-day, 7-day-a-week job; you are worth only that, and you’re damn lucky to get it because we didn’t really want to give it to you anyway.”

If you read the Minister’s own press statement, you get the flavour of where he comes from. He says that most New Zealanders expect families to look after their children. Well, most New Zealanders do, but there are, Mrs Tolley, some children who are adults who do need more looking after because they have very high needs and they are disabled. Why would we treat them in this way? I would have to ask Mrs Tolley—who has been smirking and laughing over there because it is not very important to her; she is busy chasing police who are eating hamburgers at a cut price, rather than the real issues—why we would treat these people differently.

I say to the members opposite that there are a number of amendments. They should get out of their seats, get a copy of them, have a read, and maybe show some of their own internal fortitude and vote for what is right, not what they have written down on their research notes, and not what they have been told to say and vote for. This, I believe, has been a shameful process, and the Minister is not even in the chair now.

I am pleased to be taking a call on Part 4, which is the substantive part of the New Zealand Public Health and Disability Amendment Bill (No 2). I want to just start by looking at new section 70A(1), the new section that is being inserted after section 70 of the primary legislation. But before I do that, can I just say that I am really puzzled as to why on earth the Minister of Health has signed off on a proposal to insert family care policies as an amendment to this particular part of the primary legislation. If you look at the New Zealand Public Health and Disability Act, which we certainly were doing in more detail in the last debate, section 70 is just further provisions. This has been an add-on—you know, just throw it in where we think we have got a bit of a space between two other provisions. I think it is a further undermining of the status of family caregivers that is being reflected in this amendment.

In the purpose of this part, where new Part 4A is being inserted, it does not say that the purpose of this Act is to ensure recognition for family caregivers who took a case to court and who won, not only at the Human Rights Review Tribunal but also at the High Court and then the Court of Appeal. It does not say anything about how they and other unpaid family caregivers can get proper recognition of the work that they do, instead of somebody else, a stranger, being paid to do it—no, it does not say that at all. I would have thought that would be the primary purpose of the legislation: to give a bit of justice to the people who are family caregivers, who currently are not getting paid but are doing the work. But, oh no, this is different. What it says is: “The purpose of this Part is to keep the funding of support services provided by persons to their family members within sustainable limits in order to give effect to the restraint imposed by section 3(2) and to affirm the principle that, in the context of funding of support services, families generally have primary responsibility for the well-being of their family members.” That is a bit of a “Listen, High Court and Court of Appeal, I am the ‘Minister of Everything’ and I can do what I like!”.

Leaving aside the fact that these families took that case through the Human Rights Review Tribunal to the High Court and won at the Court of Appeal, the Minister is saying “I don’t care.” The principle, in the context of the funding of the support services, is that families generally have primary responsibility for the well-being of their family members. Actually, the High Court and the Court of Appeal said that the family members should get paid for that part of their work. This does not reflect those findings at all, and I think it is a slap in the face to the judges, actually, and, more important, to the families, including the disabled people themselves.

As was alluded to by my colleague the Hon Annette King, I have moved a number of amendments to this section. I think there are 10 on the Table at the moment to this part, and I will be speaking to them at various stages of the debate, but I do not want to do that in the context of this presentation, because what I am more concerned about at the moment is the actual wording of the original legislation itself. I do not think that it is an indication at all of the importance of this issue, of the sensitivity of the issue, let alone of the fact that this policy issue has been heard by courts in this land. It does not recognise that at all. It excludes people under this family care policy. It excludes people for no good reason at all. It does not say that this is an incremental policy: we are doing it as funds allow, and we would like to look at the highest needs area first. There is no analysis at all, and I say to the Minister that he should be ashamed of himself.

There is no analysis at all of the link between the level of impairment of the individual person and the need of the family for additional support. That could be quite at odds. They could be quite unrelated to each other, actually. We are assuming that the need of the disabled person is reflected in the financial recognition that is deserved, in the Minister’s terminology, by the family. I do not see that automatic co-relationship at all; in fact, it could be quite the opposite. We could have some very, very, very high-income families who have very high-need family members, for whom this payment would make not a jot of difference. We could have very, very, very low-income families who have quite low-level needs, for whom this payment would make all the difference in terms of their ability to have a bit more security and opportunity in their lives. We could have very low-income families for whom this miserly payment could make a huge amount of difference between their ability to do things in their lives and their current inability to do that, but their family member might have quite low needs but still require quite a lot of support. So the link between the impairment of the disabled person and the ability of the family member to need or do better with this payment is not secured, at all.

I tried earlier to have some consultation injected into this policy, because for me it is quite an important principle that if you are making legislative change that has an impact on somebody, then that somebody should be involved in the preparation of that policy. The Minister tried to talk about how much consultation was done, but it is actually a lot of spin. When you talk to the family members involved, they say they had no idea at all not just that this policy would exclude large numbers of families who care for and support the disabled members of their own family but that such a massive exclusion would take place, let alone the fact that those families who are excluded from being paid for caring for their family member are also having extinguished their right to take a case of discrimination imposed by the Government to the Human Rights Review Tribunal so that they could have a fair hearing. That right is being extinguished by this legislation.

Why would the Minister do that? Why would the Minister pretend in his spin that this is looking at the families most in need to start with, and that of course this policy will be rolled out, while at the same time extinguishing those families’ rights to take this to the Human Rights Review Tribunal?

I am not surprised that the Attorney-General found that that extinguishment of rights was not appropriate. I am surprised that the Attorney-General has not taken a call so far in this debate. Generally, when you have a breach of the New Zealand Bill of Rights Act provisions, you would see the Attorney-General in the House making some explanation for it, or at least drawing it to the attention of the House in person, rather than just getting a very late report that was tabled without any explanation at all. Of course we all went to the Table and had a look at it, because it was fairly clear that these provisions do breach the New Zealand Bill of Rights Act, but we have had no explanation of it, at all. We have heard nothing from the Minister to justify the fact that this legislation not only excludes those family members from getting payment for the work that they do, despite the case in both the High Court and the Court of Appeal saying that they should get paid for it, but also extinguishes their right to take further legal action.

As I indicated earlier, I have got a number of amendments. Some of them involve consultation, which I think is important. Some of them involve the rates of pay, because it is not at all clear to anyone in the Chamber from what the Minister has said, because it was such a pathetically lightweight contribution, why the Minister thinks that the work that a family member does is worth less financially than the work that a stranger or a person from down the road does.

The Minister has consistently refused to answer the questions, and I heard one of my colleagues say that, you know, the Minister might not know the answer. He might not know what the operational solutions are going to be to this legislation. What I think every single member of this Parliament will want to know, before we leave for home on Sunday morning, is when we go down to our electorate offices on Monday, what we are going to say to family members who ask: “Will I be getting paid for caring for my son”—or daughter or parent or spouse—“in October? Will I be paid for that?”, and we have no idea.

This legislation being rammed through all its stages, without any input from the public at all, has got as many unanswered questions as it has answered questions, and that is just not good enough. Families who have been waiting, as the Minister said, for two decades for an answer are now hearing in the media that this legislation is going to be passed. What is their expectation, Mr Chair? Well, I will tell you the answer to that, because I do not think, Mr Chair, that you are going to take a call and answer my question. I think that is about as likely, actually, as the Minister in the chair, the Minister of Immigration, taking a call and answering my question—no chance at all, you know, because the Minister is not up to it, frankly. It is tragic to have—

Namaste, Mr Chairperson. This clause 4 of the New Zealand Public Health and Disability Amendment Bill (No 2) is really where most of the substantive provisions are and there is lots of space for argument and—

💬 Sue Moroney: Debate.

—debate and, indeed, for change. Of course, I am always reminding myself that this, in effect, is the select committee process. So again we expect members opposite to get up and explain—to get up and explain—why they take this particular view and the Minister in the chair to take calls and answer questions. So far we have had nothing—absolutely nothing—which is a travesty.

We know that the Government has brought this bill before the House because of the Human Rights Tribunal decision. That is the only driving force. There is no principled position that the Government has taken—certainly, none that it has explained—as to why this is important and why this Parliament should consider this bill with these provisions at this time in this way. It is clearly borne out of necessity, sandwiched in the middle of a post-Budget parliamentary session in urgency, and that says something about the principles that members opposite and this Government take towards how they treat this particular area and, indeed, this House.

The fact is, as the provisions of new Part 4A in clause 4 show, that it is a complex area, and the problems are complex. But this House is quite smart. We have lovely select committee processes. We have very good advisers, we have very good officials, and Parliament has very good legal advisers, as well, and they are able to help us work through what it is. This problem has been over 20 years in the making, members opposite have been reminding us. They might say that Labour did nothing in 9 years, but for 11 of those 20 years they have been in power, and they have done nothing as well. I am not crowing about that, but the fact is that that demonstrates only the complexity of the problem. The real issue is that the time has come to solve this problem, and this Government’s process to do that is flawed, as I have been arguing. The provisions under Part 4A are flawed, because they have not had the advantage of a full and open debate. Indeed, we have not even had the advantage of seeing the regulatory impact statement unredacted—as written. Parliament ought to have the right to see the regulatory impact statement in its entirety, but that does not happen under this Government because it does not care about the democratic process, so we cannot fully debate it.

Let us go to section 70A(1). Here we have probably the most important principle that is identified and written out. As I said earlier, in my reading this is the first time it has been stated in this way. I may be wrong, but I said this to the Minister of Health when debating an earlier part of this bill. He did not take a call to say I was wrong, so I simply take that to be the case. Members opposite may have a different view or some other information. If they do, I would ask them to share it with us. But the principle in section 70A(1) says: “in the context of the funding of support services, families generally have primary responsibility for the well-being of their family members.” That is the principle. That is stated so boldly, and it is almost glib to mention it. When I practised as a practitioner in the field in the early years, there was a principle like this that every conservative held, and whenever you tried to do something as a practitioner that required State support for the most vulnerable, this is the principle that they would chuck out. We would fight with head office in those days, case after case, where sensible decisions could not be made about very vulnerable families because somebody in Wellington had adopted this principle and said: “No, the State cannot be helping people like this, because it is the families’ responsibility.”

But when a Government, as it does in this particular bill, takes the responsibility of writing that in a clause—in section 70A(1)—then it has the express responsibility to explain what it is, what it actually means, and it is not explained. And what is the context? How is anybody to interpret this? These things get interpreted by lawyers and judges in all kinds of ways. So what is the guidance that this debate is giving to anybody in the future who might look at Hansard to see what Parliament intended to do with this particular provision? There is no explanation. There is no context. There are no caveats—

This will no doubt be my last—the fourth—call. I want to bring the issue back to the silent heart of the issue: a group of people who sometimes have been ignored in the whole debate. We are now on to clause 4 of the New Zealand Public Health and Disability Amendment Bill (No 2).

I would like to quote from a young man who wrote to me during this long and painful saga over not just today but the last 17 to 18 years. He sent me his picture and he said he is an adolescent living at home with his parents, because that is where he wants to be, and he has multiple disabilities. He wrote: “I love being at home, and this is where I want to live. If my parents cannot look after me because they do not receive the appropriate support, it is pretty obvious that I would have to live at the [X] centre”—and I am not naming it—“and have no future. I don’t want to live there. I am so happy at home with my parents and helpers and my friends visiting me. It is not acceptable for me to be living at that centre. But I want to be independent. I enjoy music and acting and recording my own music. I want to get married and be a dad. If I continue to accept that things take time, I will have a lot of success in my life.”

He is a young man whose parents are really struggling because they cannot be paid. We are not at all sure that the bill will allow them to be, because they were not part of the original case. They have had great difficulty getting the Ministry of Health to recognise their issues. Despite the fact that he is in the group of highest need, he is not necessarily going to get accepted. That is why he wrote to me, because he wanted me to have this piece of paper when I went to work on this issue. He asked me to keep working on the issue for him.

For him, being put into respite care or into care to give his parents, who are exhausted and broke, a break means being with elderly people. He is a teenager. He was 14 when he first started writing to me. I do not know what active imagination it might take, but it is not very good for him to be there—it is not very good. I personally have spent quite a lot of time in elder-care homes with my mother, who had dementia. It is certainly a challenge, but it is certainly worse, I think, if you are young and have nowhere else to be, because you are at such a different stage of life. This young man’s parents are not able to be paid and are constantly in battles over the 24-hour care package whereby his mother has to teach all the carers how to care for him appropriately and they do not get respite, because they do not want him to go through this. I am bringing this young man into the room because he should have a future as a citizen under this bill, and I do not think this bill gives him and many others sufficient future.

You can say “$92 million” as many times as you like, but when you are talking about it over 4 years that breaks down to $23 million, and then when you are talking about 1,600 families that breaks down to $14,000 or less per household who might actually benefit from this. Again, what kind of active imagination does it take to think what it might be like to be living on that? When you read the frequently asked questions associated with this bill—about the bits that are not in black, that have not been blacked out—there are questions about how it may affect people’s benefits, if they actually get any financial help through this bill.

We are getting texts and email messages today from a lot of worried people. One that came was asking: “If you still haven’t got to the third reading, can’t we stop the Royal assent?”. Can we not stop this? This is what people on Facebook are talking about this afternoon. They are saying: “Please, Parliament, while you have got a chance, stop it now.” It is interesting because I do not think the Government might have anticipated that this bill would cause this kind of furore. After all, it is just a group of marginalised people who fought for 20 years and have been successfully blocked for 20 years. But they won in court and they forced the Government to do something. Now a lot of people around the country are saying: “Can’t we stop this, because it’s not right? We want something better for everybody.”

It is a very interesting issue when you receive messages from other people who work, for example, with people with Asperger’s syndrome and autism. They are thinking, listening to this, that there may well be a risk to their relationship with the Human Rights Commission. They are worried, after what has been done to the family carers in terms of the inability to complain being legislated for, who is next. Who else is going to be blocked? Who else is going to be told by the Minister of Health or anybody else that they cannot complain? Is this a new trend? Is this going to threaten the people who are the most vulnerable in their ability to go to the Human Rights Commission?

If you look at new section 70A and move right through new sections 70A to 70E, we have some very, very serious issues around this. Looking at new sections 70A to 70E, in new Part 4A, I just want to point out that the first sentence says: “The purpose of this Part is to keep the funding of support services provided … to their family members within sustainable limits …”. Sustainable to whom? [Bell rung]

The CHAIRPERSON (Lindsay Tisch): I call Catherine Delahunty.

I will not take a full call, but I do want to finish my sentence. Sustainable to whom? Sustainable to the health budget, but not sustainable if you are the people on the receiving end. When we have got a problem like that, that is when we start a real negotiation with the people affected. That is when we do not do what we have done up till now. That is why the Green Party members in our third reading speeches will be talking about alternative solutions to this punitive and miserable and mean-spirited approach, which should be illegal because it is highly discriminatory. Thank you.

Clause 4 is the part of the New Zealand Public Health and Disability Amendment Bill (No 2) that actually gets to the detail—or the part that we would hope would get to the detail—of what the changes actually are, and, of course, this will need some substantial level of debate. In lieu of a select committee process, due to the Government’s decision to rush all parts of this legislation through in urgency, new Part 4A in clause 4 is what we really need to understand the detail of. I think, as colleagues have already pointed out, that if we leave this parliamentary session and this bill is passed, what will members of Parliament be reporting to constituents? We really do not have the amount of detail that we need. The whole point of the Committee stage, with the officials in the room—particularly when there is not going to be a select committee process—is that the Minister in the chair would actually use the advice from the officials to answer the questions that are being raised by this side of the Committee. So far the questions that we have raised have not been answered. Many of them have not been answered.

I want to talk about new section 70D in clause 4—and, yes, as my colleague the Hon Ruth Dyson pointed out, it is called 70D because it is the tail end of a very large Act, the New Zealand Public Health and Disability Act. It is getting towards the tail end of it, under something that is kind of loosely known as “miscellaneous provisions”—that is, we shove everything there that is not really substantive and is not really substantial. That is where these amendments are going. This substantial change is so important to those seven families who have been battling this issue for two decades. Again, I just want to take the opportunity to congratulate those families on their tenacity. It has not been easy. I know that at least one of those families is from Hamilton, because they have come to see me to talk about the issue. They have battled for this. Here we are, under urgency, going through all stages of the bill, without the completeness of the detail.

So we know that new section 70D is going to cancel arrangements that district health boards may already have in place in terms of paying family carers. That is what I believe new section 70D says—that some district health boards may already have these arrangements in place. I am not sure whether members opposite seem to think that any of them have, but why, then, would they have drafted this new section 70D that says if they have got them in place, then they are cancelled? We need to know the impact of that on the families who may currently have those arrangements in place through their district health board. There may be families who already receive this payment, or a different type of payment—a greater payment, in fact—for taking care of their family members with disabilities. New section 70D actually cancels that arrangement. So these are the reasons why we need if not a select committee process—and I would argue we absolutely need that select committee process so that those families who are having their arrangements cancelled could come and warn us about what that impact is going to be on them. In lieu of that, can we at least have the Minister of Health on his feet, consulting the officials, and answering the questions that have been raised?

I want to refer to Catherine Delahunty’s very good speech earlier, about the young man she was referring to. We do not know whether he will be included or not, whether his family will, in fact, receive a payment under these changes in this clause or not, because we do not know what the definition of “high needs” is. We know what the definition is of the various family members who will meet the criteria. That much is clear—at least, I think it is clear. We know what those definitions are, but we do not know who is defined as being of high need. We know what age group it is going to apply to: only those over 18. We have not had any explanation about why the age of 18 has been chosen or what is going to happen to those under the age of 18 who may already be getting these payments from district health boards under the arrangements that new section 70D cancels. But we do not know, even for those over the age of 18, who will actually qualify for this payment, and we do not know, actually, how much the payment will be. We do not know what the level of payment will be. We know that it will be lawful—it will be made legal—for it to be below what non - family members are paid for caring for exactly the same person, but we do not know how much lower that might be.

The Government has said it will not have the details available until September. That is when the Government says the details of how this will operate will be known. Well, if that is the case, why are we debating this in urgency now? The Government is not even planning to enact it until 1 October, it will not know the details until September, and it has the House in urgency today, going through all stages of the bill, without that level of detail. That is where this is going to go wrong. I think many of us have had experiences in this House where legislation has been rushed through and it has been poorly thought-out, and then we are back within a matter, sometimes, of months, or sometimes it takes a few years, taking up more parliamentary time, going through and fixing up the things that went wrong the first time.

I want to raise an issue that I raised earlier in the debate, because I still have not had an answer from the Minister. It is incredibly important, because this is a fundamental human right we are about to extinguish. This Parliament—well, more properly, that Government—is about to extinguish the right of a very important, quite vulnerable, group of people in our society to actually take a case through the Human Rights Commission about their ability to care for their loved ones. That is what one of the paragraphs of clause 4 is about to do, and yet we have no reference to the Human Rights Act in the legislation that is before us. There is not even a consequential amendment that is happening to the Human Rights Act 1993. Why is that? What is the impact of having the New Zealand Public Health and Disability Act say one thing and the Human Rights Act 1993 say another?

As it stands at the moment, the Human Rights Act would allow all of those families to actually put their case before the Human Rights Commission. That is one of the problems that we have. If we were having a select committee process, then we would actually be able to get some official advice on that. We would be able to find out what the implications were of those two Acts saying something quite different from each other, and I think we would get to a logical conclusion. That is the point of having a select committee process.

But, instead, this document I am holding is what we have. It is not a piece of abstract art, as some might think it is on the TV screen—I am sure that it is what it looks like. This is designed to be the regulatory impact statement. It is supposed to tell us what the impact on regulation is of this piece of legislation. So not only have we not got a select committee process but we have a completely inadequate—I would say, actually, a disgraceful—regulatory impact statement, because most of the information is hidden. Some people thought “Oh, look, it’s a mistake. In their hurry, what’s happened is the Government’s used a highlighter, you know, to highlight some sections, and then they’ve photocopied it, and it’s come out black.” Well, that is not what has happened. It is a deliberate attempt to actually—

The CHAIRPERSON (Lindsay Tisch): Order! We have had the debate on that. We are on clause 4.

The detail of clause 4 might be here in this regulatory impact statement, for all we know. It might be here for all we know, but who will ever know?

As the Opposition spokesperson on women’s affairs, I am concerned to know what the impact is on women, because in this area it is mainly women who are providing this family care—not always, but in the main it is women. Yet we have not enough detail in clause 4 for us to actually even ascertain what that is going to mean. We do not know what the pay rate is going to be, for example. We just do not know what the pay rate is going to be. And because it is going to be mainly women to whom this pay rate actually applies, then that is a major issue that we need to know about. Is that Government even interested in knowing what the gender impact of this legislation is? It does not appear to be at all interested in that. Certainly, this regulatory impact statement tells us nothing about the impact on gender—well, it might, but who would know? It might be hidden under one of these—

New Part 4A, in clause 4, is, of course, the substantial part of this bill, the New Zealand Public Health and Disability Amendment Bill (No 2), and it is the part where the new provisions are being inserted into the principal Act, the New Zealand Public Health and Disability Act 2000. I want to talk particularly in relation to the provisions in new section 70D(3)(c). They are to do with the provisions around payment for those providing services for those family members whom they are looking after.

In the regulatory impact statement—and this is one of the bits that is not blanked out, which is good—

💬 Hon Ruth Dyson: And rare.

—and rare, indeed—there is quite a section about consideration about how people would be paid once this bill was passed. There was a debate about the two main options for how family carers could be paid: as employees or by allowance. I am going to be supporting the amendment to clause 4 in the name of my colleague the Hon Ruth Dyson that replaces new section 70D(3)(c), which, I believe, will do a better job of looking at payment.

But just before I get into the specifics of that, in the regulatory impact statement, where consideration was made of how family carers could be paid, as I said, there was consideration of whether they should be paid as an employee, which would then potentially determine their pay rate, or by allowance. Thankfully—and it is potentially one of the few things in this that we could wholeheartedly agree with—it was agreed that, in fact, the appropriate way to go was to pay people as employees rather than to pay them an allowance or via section 88 notice. The regulatory impact statement does go through that whole debate and talks about why that conclusion was made and, quite rightly, says that “Paying family carers as employees recognises their contribution by giving them status as an employee.”—for example, enabling them to get a formal work record—“It also incorporates mechanisms for assuring service quality and safety ...”. I think that is sensible. But when you look further on at the analysis of that, in the table “Analysis of options for how family carers are paid to provide HCSS” there is a whole column that is blanked out. Of course, I would be very, very interested in knowing what that column contains, and whether it has anything to do with the actual rates of pay, which is the provision we are talking about here.

New section 70D(3)(c) is relating to the actual rates of pay for these family carers. What the bill provides is that “the rates, or ways of setting the rates, of payment for support services provided to family members, which may be”—and this is the important bit—“lower than the rates of payment for comparable support services”—and I underline the word “comparable”—“provided to persons who are not family members:”. In other words, and just to be clear to those listening, this is saying that these employees, these workers, would be paid less than others who are not family members. I think that is a really important point. Why should that be the case? Why should they be paid less for comparable work? By virtue of its being comparable, we can say that the value is the same. Certainly, I think all of us—on this side of the Chamber, anyway—would agree that equal work should receive equal pay. It is a concept that is foreign to members opposite, of course. It is a concept foreign to members of the National Government, because, of course, they have recently passed legislation ensuring that young people who do equal work are paid less, or potentially paid less. So perhaps they want to extend that principle into other provisions.

But for those of us who are looking at what is very, very hard work and very important work in our society—and, as my colleague Sue Moroney said, work that is often done by women—we see that it is already low-paid work. The work of carers in our society is vitally important. Carers are looking after people who, by definition, almost, are vulnerable in some way and who need somebody else to look after them and to help them. It is low paid already. What we are providing for in this bill, what the Government is trying to do, is to say that some carers, carers who are family members, could be paid less.

I move, That the question be now put.

I have to say that the people of Rangitīkei would be very disappointed to hear that Ian McKelvie’s only contribution to the debate this afternoon was to try to shut down that debate. I suppose that is a reflection of this Government’s attitude towards democracy and transparency. I am sure he will be pleased to go back to his electorate and talk to people about the way he voted today and his contribution to today’s debate.

I would like to refer to a couple of the amendments in the name of my colleague the Hon Ruth Dyson. Both refer to new section 70D(3)(c), in clause 4, which refers, of course, to the rates of pay that the carers can receive. One of those amendments is to ensure that the rates of pay may not be lower than the minimum adult rate of wages payable to workers, set under section 4 of the Minimum Wage Act 1983. I think that is a reasonably important principle, actually. Just because people are caring for a member of their family, just because they are actually doing this because it is a 24/7 commitment that they have to someone who lives in their household or is another member of their family, does not mean that they do not get the same rights and privileges that everybody else in New Zealand should receive when they are at work.

An important concept that, I think, we have to ensure is clearly laid out in the legislation is that, at the very least, the minimum wage should be the minimum rate of pay that carers can receive. But I think that that really is not enough. Merely ensuring that they get the minimum wage should not even need to be reinforced by the Opposition. The Government should be making that statement clearly, without the Opposition having to make that point. But what is actually even more important is the other amendment, which also refers to new section 70D(3)(c) and would ensure that the rates, or ways of setting the rates, of payment for support services provided to family members are equal to the rates that they could expect if they were caring for someone who was not a member of their family.

I think the concept of equal pay for equal work is a good one. It is not one that National buys into, unfortunately, which is probably why it is missing from the original legislation. But I think that members should be happy to sign up to this because it is a solid concept that all members should be able to sign up to. I do not understand what it is about having a familial relationship with the person whom you are caring for that somehow changes the nature of the work. It is just as hard, and just as much commitment is required.

Tony Ryall is rolling his eyes and tut-tutting. He does not understand why it is that people who are caring for someone who is a member of their family should not have the ability to get the same rate of pay that they would get if they cared for someone else’s child. Tony Ryall does not understand that. Tony Ryall thinks that those carers should just work for whatever the minimum is that the Government is prepared to give them. He thinks they should be grateful that the Government is even prepared to cover them. In fact, of course, as we know, many people will not be covered by this. This is not the comprehensive response that people were expecting.

So I suppose, in Tony Ryall’s mind, if you are lucky enough to be one of the 1,600 who qualify for this—and goodness knows exactly how the Government is going to determine whether or not a person qualifies to be one of the 1,600—you ought to be grateful. Those people ought to be grateful if they are lucky enough to be one of the chosen 1,600. I suppose that is where Tony Ryall is coming from.

Well, we come from quite a different perspective on this side of the House. We believe that this should have been the comprehensive response. We believe that the approximately 5,400 people who could be covered by this legislation should be covered by this legislation, and we think that the rates of pay that are acceptable in the care sector ought to be given to these families, low as those rates are. I think we all accept that the rates of pay in the health and disability care sector are not what they ought to be, but let us start at least at that starting point.

Continuing on from my last call, when I was rudely curtailed by the bell and I did not get a second call, I was talking then about a principle that really undergirds clause 4 of the bill, the New Zealand Public Health and Disability Amendment Bill (No 2), which is the one about the primary responsibility of the family to care for its own members. I was saying then that there is no context to it, there is no explanation of it, there are no caveats on it, and we do not even know where it comes from. What are the philosophical and ethical origins of that particular belief? We would have thought that the Government might explain it, the Ministers might explain it, and, certainly, at a select committee hearing we would have the opportunity to pursue that a little bit further.

But when that principle is applied in this way to the disability sector, we get the impression that it shows very little awareness of what family members actually go through to care for their seriously disabled family members. Often, families are the only ones who are committed philosophically to that person in that situation for a lifetime because of that familial relationship. They stay there day in and day out, providing enormous support. Members of the Committee debating this bill have given examples of such cases from their own family situations. But this particular new section 70A and what emerges from it show very little awareness of that.

I do not know what the Government is worried about. It is not as if we will now go and produce a whole lot more people with disabilities. These are situations that have occurred, and all that society is doing is responding to that. So, potentially, the principle is about our own responsibilities as a society to our most vulnerable. Somehow, the Government has weaselled out of this particular responsibility on the basis of figures—on the basis of what it will cost.

There have been discussions about unmanageable fiscal costs. What are those unmanageable fiscal costs? The figures we have seen are not unmanageable. The Government is of a mind to provide, hopefully, $1 billion of tax cuts and ACC cuts in the next Budget, we believe. That is manageable. Somehow for the most vulnerable it is their families’ responsibility, and the provisions of clause 4 really stand in the way. It actually does show the mean-spirited nature of these provisions. Perhaps the select committee process would have brought people out to actually argue those particular implications of the provisions of clause 4, but we are not able to do that. We live in an interdependent world. We are, as a society, our brother’s keepers, if you like. A decent society does that, and these are the kinds of provisions that do it. The costs are manageable. The numbers are not enormous. No matter how long it has taken, no matter what the history is, this is something we ought to be doing.

On a different point, new section 70A(2)(c) limits the rights of citizens to take complaints to the Human Rights Commission. That right is taken away. It is a very, very serious clause that takes away an important right from our citizens. But, of course, all of that would be obviated if we did indeed provide the kind of care that our most vulnerable required. If we did that, then there would be no need to take away their right to go to the Human Rights Commission. So, again, here we have a problem, and the solution is actually seriously flawed. Again, the provisions of clause 4 warrant that concern quite a bit.

I want to talk a little bit about new section 70B(2). Perhaps there is something quite monocultural about these particular provisions when we talk about the family and we talk about family responsibilities. I draw attention to the definition “aunt or uncle”. Who is an aunt and who is an uncle? The Minister in the chair, the Minister of Health, rolls his eyes, but the Minister will, I hope, take a call and explain the question I am about to ask him. In a Western, European context that is easy to define. But in an Indian context it is not. In a Chinese context it is not. And even in a Māori context it is not.

I move, That the question be now put.

I was just contemplating the judgment that the Court of Appeal made in May last year. What I want to highlight is this definition of the plaintiffs. They are “either family with adult disabled family members or adults with disabilities. The disabled family members have been assessed by the Ministry of Health as requiring support services.” So that group was discriminated against, and we know that there are 5,400 people in that group. And what we now know through this bill is that it will, hopefully, help 1,600 family members. So basically 30 percent of the families that the Court of Appeal highlighted as requiring support are going to be supported.

I will read through clause 4, and just look at the principles that are ingrained in this bill. New section 70A(1) says: “families generally have primary responsibility for the well-being of their family members.” New section 70A(2) says: “permitted by an applicable family care policy or is expressly authorised by or under an enactment:”. And the third part of that, in new section 70A(2)(c), is that it “stops … any complaint to the Human Rights Commission and any proceeding in any court if the complaint or proceeding is, in whole or in part, based on an assertion that a person’s right to freedom from discrimination” has been breached.

The Court of Appeal assessed that 5,400 New Zealanders were being discriminated against. What this legislation is trying to address is 30 percent of those 5,400 New Zealand families. But in doing so the Government is going to say to the 70 percent of New Zealand families that will not be supported: “Hard luck. Sorry about that. In fact, we’re not going to let you use the tools that brought us to this place in the first place.”, which was to go through a court process that started in 2000. Really, that is what this bill is all about.

I guess what we on this side of the Chamber really care about is the 70 percent of New Zealand families who are being discriminated against in spite of the Court of Appeal decision. We on this side of the Chamber think that those 70 percent of New Zealand families have the right to be supported. I guess when you look at it within the context of overarching Government prioritisation, it will give a little bit of money to families and people with disabilities, and we all—the communities, and everyone else out there—should say: “Hey, thanks very much.” So actually, to the Minister in the chair, thank you very much for the 30 percent of New Zealand families of people with disabilities that this bill will assist.

But I guess the challenge is this: what about the other 70 percent? What are we going to do as a Government, as a society, about meeting the needs of the other 70 percent? I guess in meeting the needs of the 30 percent what we have said is we will give them a minimum wage. Is that sufficient? I think, you know, of when I hear the pleadings of my colleague Catherine Delahunty, particularly. She has been into these houses. She has worked with these families. She understands the circumstances that our most vulnerable members of our communities are living in. I think really that is the test of this House. That is the test of the tolerance that we have as a Government, as a society, in helping address the needs of one of our most vulnerable communities in New Zealand.

That is what I really wanted to highlight in my contribution, because I think the select committee process would have enabled a more thorough discussion and analysis about whether or not the needs of 30 percent of the families being met is sufficient. We could have talked about other things: not only giving them a minimum payment but actually, yes, valuing and acknowledging the work that our family members do. The alternative—institutionalised care—as we all know, is so much more expensive. But rather than support families to the degree that they need so that they can live in dignity, they can live with respect, and they can live and can be valued and cared-for members of our community, we think that they should be happy and satisfied.

So, Minister, thank you for going part-way to meeting this community’s needs, but I think we could have done better, and I think that the process of Government would have enabled our communities to have a say so that we could actually hear about the consequences of this bill for their lives. That is what really is a travesty, that we have not allowed the New Zealand people to have a say on this bill. Kia ora.

Thank you very much for the opportunity to speak to clause 4 of this bill. As a number of speakers before me have noted, this is the major part of the New Zealand Public Health and Disability Amendment Bill (No 2). As some people would say, it is where the money is at—or, in this case, is not. The point has been made many, many times around the need for this bill to have gone through a select committee process. We know, hours into this debate, that it has not, and that is unfortunate because one of the things that the public of New Zealand could have given more scrutiny to was the rates at which family members who care for those who are disabled in their families are paid. That could have been looked at closer, because there seems to be an inequity in one of the parts of clause 4, and the Hon Ruth Dyson has put forward an amendment to that effect. It talks about new section 70D(3)(c). I think my colleague Carol Beaumont has already spoken about this.

Essentially, what this part of the bill says at the moment is that if you are a family member caring for someone who is disabled in your family, not only is the rate that you will get paid going to be the minimum wage but you can actually, through this paragraph, get paid less than the minimum wage. That is our understanding of the bill. That is something that would have been given some closer scrutiny if this bill had been put to a select committee. The Hon Ruth Dyson has studiously put in this amendment that would amend new section 70D(3)(c) to read “Any lower rates set may not be lower than the minimum adult rate of wages payable to workers set under section 4 of the Minimum Wage Act 1983”—that is to follow the words in new section 70D(3)(c) “persons who are not family members:”. That would make it fairer, we on this side of the Chamber believe, to those who have taken on the real commitment of looking after those people in their family who are disabled—as my colleague Louisa Wall said, fair is fair, to the Minister—and who have been recognised in this bill to get some form of payment, because previously they have not. But we do not believe that has been done in a fair way.

The Hon Annette King said in her first contribution on clause 4 that we will not see the operational details around the changes that are made in this bill until September. That is of great concern to us in the Committee and on this side of the Chamber, given that when this bill will come into effect is 1 October. That is when the Government wants this to start being effective. So we will find out how this works maybe late September, and then the next month things will get moving. That is another concern that we have on this side of the Chamber: that we will not find out how these changes are going to operationally work, how things are going to be done until September, and then a matter of weeks later it will be law and in place. That should have been looked at with closer scrutiny at the select committee. At that select committee I am sure Dr Paul Hutchison—a man who on this side of the Chamber is very well respected, someone who definitely during my time on the Health Committee looked at a whole raft of issues related to health in a thorough manner and in a fair manner—would look at this, and I think he would be concerned that there is a very short period of time between when we find out how this piece of legislation works and when it comes into effect.

I go back to new section 70D(3)(c) in clause 4. Because the regulatory impact statement has been referred to many, many times during this debate, I wanted to have a sift through the regulatory impact statement just to see what kind of impact new section 70D(3)(c), as it stands now, would have in terms of operational details. But, again, it is not pretty. We do not know what it would mean because it seems that the significant—

💬 Hon Annette King: Read it out.

Well, I would love to, but maybe the Minister in the chair, the Minister of Health, could tell us what some of the significant legal issues and risks are arising from the Government’s preferred response, which it has in this bill, especially around new section 70D(3)(c), because we have no idea—

I move, That the question be now put.

The question is that the question be now put. Those of that opinion will say “Aye”—

💬 Iain Lees-Galloway: I raise a point of order, Mr Chairperson. Could you please explain to the Committee how it could possibly be in order to accept a closure motion at this point during the debate on clause 4 of the New Zealand Public Health and Disability Amendment Bill (No 2), which is the substantive part of the bill. All of the substance of the bill is contained in clause 4. This bill is being passed under urgency. There has been no select committee consideration. There has been no opportunity for the public to have a say on this piece of legislation. The regulatory impact statement is one of the most redacted impact statements that this House has ever seen, which has limited the information that members of Parliament have had available to them. We have the Hon Ruth Dyson with 10 amendments. She has had only one call so far and has had a limited opportunity to speak to those amendments. This bill and this clause of this bill have not in any way had sufficient scrutiny by Parliament. I think it is completely out of order to accept a closure motion at this point.

The CHAIRPERSON (Lindsay Tisch): The Committee will decide whether it accepts a closure motion. Just in regard to what the member has mentioned, this debate on clause 4 has gone on for an hour and a quarter. There have been 12 Labour calls. There has been one Government call. The Greens—[Interruption] I am on my feet. The Greens have taken two calls. When we started this debate, the debate on clause 1 was very wide ranging, and many of the points that were made in that debate are now being canvassed in debate on clause 4. On the basis of a debate that took an hour on clause 1—as I said earlier, because it was a wide-ranging debate there—many of the points are being canvassed in debate on clause 4, I have decided to accept the closure motion.

💬 Chris Hipkins: I raise a point of order, Mr Chairperson. I accept the ruling—well, I understand your rationale that you have just outlined to the Committee, but I would stress to you the somewhat extraordinary nature of this debate, in the sense that it is under urgency, it is being pushed through as a Budget measure, it is going through all stages, and members of the Opposition have had this bill for only a very, very short period of time. We were given it literally an hour or two before urgency actually started, so people have not had a chance to go through it in detail. The fact is that there are a significant number of amendments, and the person who is sponsoring the amendments indicates that the Opposition has, to the best of our ability, engaged with the detail within the time that we have had. I am aware that there is a New Zealand First member who does want to have a call on them, who probably had not anticipated that the debate was going to be drawing to a close quite so quickly. We have no ability to vote down a closure motion, as you will be aware. The only protection the Opposition has in these matters is the protection of an impartial and neutral Chairperson. Once this question has been put to the Committee, if it is passed by the Committee, the rights of the minority will be overridden by a majority vote.

The CHAIRPERSON (Lindsay Tisch): I hope the member is not implying that I am not an impartial Chair. That is what the member said, and I am sure he did not mean that. When I accepted the closure motion, everybody at that stage who had wanted a call had been given a call. All right? And there are members who have been sitting in the Chamber for some time who, during the course of the last hour that I have been sitting here, have not gone for a call. Those who wanted calls at the time were given calls. Everyone got a call. It was only when I accepted the closure motion at the end that other members got to their feet. On that basis, I think it has been a fair debate, so I am putting the question.

I raise a point of order, Mr Chairperson. I wanted to raise a point of order just before we leave the Committee of the whole House, to seek your guidance as we go on to the next couple of pieces of legislation that will come before the Committee, under the urgency motion, which are similar to this bill. They are pieces of legislation that will not be going to a select committee. They are bills that were provided to Opposition parties only moments before the urgency motion in one case, and after the urgency motion in the other case. I want to seek your guidance on the approach that Chairs of the Committee of the whole House will take when there is legislation of that nature. Is that something that is taken into account by a Chair, in terms of the length of time spent on particular parts? Is it something that the Chair will recognise?

I thank the member for his comment. The Chair takes into account the range of debate that has happened over the course of the time, and at that stage the Chair will determine whether a question is put and for how long the debate will go. The Chairs realise that of course these bills have not been to a select committee and are being dealt with under urgency, but that is given consideration. I would hope that, overall, we have reflected that in the nature of the debates that we have had. That, I hope, will continue. It certainly will under my chairmanship. I will report this bill without amendment.

Bill reported without amendment.

Report adopted.

Third Reading