MINISTRY OF HEALTH V PETER ATKINSON (ON BEHALF OF THE ESTATE OF SUSAN ATKINSON & EIGHT OTHERS) HC AK CIV-2010-404-000287

MINISTRY OF HEALTH V PETER ATKINSON (ON BEHALF OF THE ESTATE OF SUSAN ATKINSON & EIGHT OTHERS) HC AK CIV-2010-404-000287 17 December 2010IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2010-404-000287UNDER PART 1A HUMAN RIGHTS ACT 1993BETWEEN MINISTRY OF HEALTHAppellantAND PETER ATKINSON (ON BEHALF OFTHE ESTATE OF SUSAN ATKINSON &EIGHT OTHERS)RespondentsHearing: 13 - 24 September 2010Court: Asher JMs J Grant MNZM (lay member)Ms P Davies (lay member)Counsel: M Coleman, J Foster and R Hoare for AppellantF Joychild and D Peirse for RespondentsJudgment: 17 December 2010 16:00:00JUDGMENT OF ASHER JMS J GRANT MNZM AND MS P DAVIESThis judgment was delivered by me on Friday, 17 December 2010 at 4pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Law office, PO Box 2858, Wellington 6140F Joychild, PO Box 47947, Ponsonby, Auckland 1144D Peirse, Human Rights Commission, PO Box 6751, Wellesley Street, Auckland 1141Table of ContentsPara NoIntroduction [1]The context of the claim [10]Home-based support services [16]Individualised funding [17]Contract board [18]Supported independent living [19]The individual claimsThe respondents [20]Susan, Peter and Imogen Atkinson – first and ninth respondents(Peter Atkinson on behalf of the estate of Susan Atkinson) [25]Gillian Bransgrove (second respondent) [28]Jean Burnett (third respondent) and Stuart Burnett (eighth respondent) [29]Laurence (Nick) Carter (fourth respondent) [33]Peter Humphreys (fifth respondent) [34]Clifford Robinson (sixth respondent) [35]Linda Stoneham (seventh respondent) [36]The statement of claim and statement of reply [37]The Tribunal's decision [44]Relevant statutory provisions and other instruments relating todiscrimination [49]Has there been an act or omission by the Ministry inconsistent with s 19(1)?General approach [61]Background to comparator exercise [75]Submissions as to appropriate comparator [83]Conduct of comparator exercise [85]The comparator exercise in this case [89]The Ministry submission that there is no discriminatory impact [100]New Zealand authority [104]Canadian decisions [110]Our assessment on whether we should examine the nature ofthe discrimination [116]Conclusion on whether there is a breach of s 19 [127]Disadvantage [136]Is the policy a justified limitation under s 5?The approach to the s 5 exercise [140]Deference [143]Tribunal's view of its inquiry function [148]First s 5 question – sufficiently important purpose? [152]Witnesses and submissions on the policy [155]Development of policy or practice [159]Exceptions [184]What is the policy? [187]Reasons for the policy [198]The social contract [203]Are the other objectives are sufficiently important [216]Second s 5 question – Is the limiting measure rationally connectedwith its purpose? [221]Third s 5 question – Is the restriction to the right from discriminationno more than is reasonably necessary?The nature of the limiting measure [231]The balancing exercise [239]Accident Compensation benefits for disabled persons [244]Objective two – promoting equality of outcomes [254]Objective three – to encourage the independence of disabled persons [257]Objective four – avoiding the risk that families will becomefinancially reliant on the income [260]Objective five - support for the development of family relationshipsin the same way as they develop for non-disabled people [261]Objective six - to avoid professionalising or commercialisingfamily relationships [262]Objective seven - to ensure that the delivery and quality of servicespublicly funded can be monitored [264]Objective eight – to be fiscally sustainable [268]Conclusion on whether the right to freedom from discrimination hasbeen impaired as little as possible [281]Fourth s 5 question – is the limit in due proportion to the importanceof the objective? [284]Conclusion on s 5 [287]Result [293]Introduction[1] This is an appeal against a decision of 8 January 2010 of the Human Rights Review Tribunal1 when it issued a declaration that the Ministry of Health's practiceand/or policy of excluding specified family members from payment for the provisionof funded disability support services is inconsistent with s 19 of the New ZealandBill of Rights Act 1990 (―NZBORA). The declaration stated that the practiceand/or policy limits the right to freedom from discrimination, both directly andindirectly, on the grounds of family status and is not, under section 5 of that Act, ajustified limitation. There is to be a further hearing on remedies.[2] The declaration was issued following a hearing in which nine plaintiffs(seven parents with adult disabled children and two adult disabled children) (―therespondents) successfully alleged unlawful discrimination under Part 1A of theHuman Rights Act 1993 (―the HRA) in relation to the practice and/or policy of theMinistry of Health (―the Ministry) of excluding specified family members. Theparents claimed that the practice and/or policy, which for convenience we will refer1 Atkinson & Ors v Ministry of Health [2010] NZHRRT 1.to as ―the policy", excluded them unlawfully from payment for the provision ofdisability services to their disabled children. The adult children claimed that theywere discriminated against and that they were denied any choice of caregiver underthe policy because persons giving that care were in a particular relationship withthem.[3] The Ministry accepted that there was a policy as alleged by the respondents.It was described in the Tribunal decision in the following terms:2parents, spouses and other resident family members of the qualifying persons are excluded from being paid for providing disability supportservices to their adult child, spouse or resident family member who qualifiesfor such support services.[4] The claim did not relate to general carers' allowances, wages or benefits.Nor was it a claim by family members for the amount of the costs of care for aperson in residential care. Rather, the claim related to specific support serviceswhich the Ministry makes available for disabled persons.[5] We are informed that the decision under appeal is the first where the HumanRights Review Tribunal (―the Tribunal) has made a declaration of inconsistencyunder Part 1A of the HRA in relation to Government policy or practice, as opposedto an enactment.3[6] The hearing in the Tribunal took place between September and October 2008.There was three weeks of evidence and a further week of submissions. The hearingbefore us took two weeks dedicated entirely to the presentation of submissions bythe two parties.[7] All the respondents were parents or children of those parents. There were norespondents who were spouses or other resident family members. Thus the factualfocus before the Tribunal and before us was on the policy as it applied to parents andchildren. We will refer to ―family members as a shorthand reference to the longerdescription of ―parents, spouses and resident family members.2 At [6].3 The first declaration was Howard v Attorney-General (No 3) (2008) 8 HRNZ 378 which related to an enactment.[8] This appeal is governed by s 123 of the HRA. Section 123(5) provides that in determining any appeal under the section, the High Court has the powers conferred on the Tribunal by ss 105 and 106 of the Act. The appellant has the onus of satisfying the Court that it should differ from the decision under appeal. Theprinciples set out in Austin Nichols & Co Inc v Stichting Lodestar4 apply and thisCourt must make its own assessment of the issues.[9] We accept the Ministry's submission that this case is not about what thedisability support system should provide. That is a matter for Parliament. Thequestion in this appeal is whether in the context of the disability support servicesframework that is provided by Government, the refusal to fund the contracting offamily members to provide those services is discriminatory.The context of the claim[10] At the time of the hearing before the Tribunal, expenditure by the Ministrywas between $2.5 and $2.8 billion a year. This figure does not include the clinicalservices such as hospital care provided by District Health Boards (―DHBs) orincome support provided by Work and Income through benefits and allowances suchas the domestic purposes benefit for carers, the invalids benefit and disabilityallowance. Disabled persons are eligible for invalids' benefits and this is not at issuein this proceeding.[11] Of the Ministry's expenditure, approximately $840 million is spent ondisability support services. The Ministry estimates that it provides services toapproximately 30,000 disabled persons, not including those who use only theequipment modification services.[12] It is important to note the disability support services for which the Ministry isnot responsible. Generally, disability support services for persons over 65 areprovided by the DHBs. Moreover, the Ministry does not provide disability supportservices for persons whose disability was caused by accident or injury. These4 Austin Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC).services fall under the ambit of the Accident Compensation legislation. It does not provide services for persons with psychiatric, addiction or age-related disabilities as these generally are the responsibility of the DHBs. The Ministry's disability supportservices that are at issue are not entitlement based. Rather, they are support servicestargeted at specific essential care needs of disabled persons.[13] The Ministry uses a ―needs assessment and service coordination process,referred to as ―NASC, to allocate its disability support services. This process iseffectively the gateway through which individuals gain access to the Ministry'sfunded disability support services. The Ministry contracts with 15 NASCorganisations to assess needs and coordinate services. It is emphasised by theMinistry, and not contested by the respondents, that NASCs in the course of theirassessments have no expectation that, families will provide care, or that they willmeet all or most of the disabled persons support needs. The NASC system, which inits current form was ushered in from 1991, represented a move towards a targetedsystem of social assistance based on needs as determined by the Ministry. TheMinistry enters into Crown funding agreements with NASCs and other serviceproviders.[14] Families are normally expected to provide basic family amenities like a bed, access to a shower and toilet, the ability to share in the family meal if one is beingprepared (and is appropriate for the disabled person), or assistance getting to schoolor day activities if others are also heading out to school or work during the day.However, the Ministry has been at pains to emphasise that there is no minimumexpectation of what a family may reasonably be expected to provide. While it willencourage a family to provide support, it will work to fill in any gaps. For instance,if a family is willing to help with personal care at the weekend but unable to do soduring the week, the NASC process would work to fill that gap through home-basedsupport services. However, if the family is able to assist with all of the personal careneeded through the weekend then no support services would be allocated for theweekend. The Ministry has stated that the NASC would probably allocate carersupport and/or respite days so that the family could have a break from caring. Whena disabled person does not want their family to provide their personal care, even ifthe family is able and willing to do so, the NASC will allocate outside services toprovide that support. There is no set amount of dollars paid according to severity ofdisability and the system does not focus on compensation for levels of disability.The idea is to meet support needs on a case by case basis.[15] There are four particular support services that are the subject of theproceeding. In relation to all four of the services at issue, it is common ground thatfamily members cannot be paid for these services. The services are as follows.Home-based support services[16] This service covers two principal types of support. The first is personal carewhich includes assistance with personal hygiene and bathing, dressing andgrooming, toileting, feeding and transfers from bed to wheelchair, and mobilityaround the home and elsewhere. The second type is household managementdesigned to help the disabled person to maintain, organise and control their homeenvironment. This includes cleaning and laundry. These services can be temporary,short term and even for just a night. About 11,000 disabled people in New Zealanduse home-based support services, not including those who receive those services as apart of support for independent living.Individualised funding[17] This is an administrative scheme that allows the disabled person or their agent to hold and manage their own budget for the home-based support services theyhave been assessed as needing. It is not a service as such but a personal entitlementto funds which gives the disabled person more control over who provides services,and some flexibility as to when and how the services are provided. This is arelatively new service, which began in 2008.Contract board[18] Contract board is a service where a disabled person moves in with a familythat is different from the disabled person's own family, and so generally applies tofamily environments that do not feature relatives. The service is primarily for peoplewith an intellectual disability. Contract board families receive a reimbursement package to meet the costs of the individual that boards with them. There are approximately 400 contract board arrangements.Supported independent living[19] Supported independent living provides a range of independent supportservices to the individual disabled person. Its aim is to support persons livingindependently in the community. It covers a range of supports including assisting adisabled person to find and establish appropriate living arrangements and developnew skills and providing personal contacts on an individual basis to assist andsupport the person. There are approximately 2,000 people receiving supportedindependent living services.The individual claimsThe respondents[20] All but two of the respondents are parents. The two respondents who are notparents are Stuart Burnett and Imogen Atkinson. They are adult disabled childrenwhose choice of caregiver was their mother. Their parents are also respondents.Another child, Jessica Raine, is not a respondent in her own right, but was a witnessbefore the Tribunal.[21] Of the respondents four parents have adult children with intellectualdisabilities and very high disability support needs. Three have adult children withphysical disabilities and very high disability support needs. All children are eligiblefor funded disability support.[22] All of the parent respondents would like to be paid from one of the fourservices at issue, but are not able to receive payment because they are familymembers of the disabled person.[23] All but one parent has agreed to training if this is deemed necessary for payment by the Ministry. Most have agreed that they should be subject to audit onthe same basis as non-family providers of disability support services, should theyreceive payment.[24] It is not possible to do justice to the entirety of the evidence of therespondents. However, some aspects of their evidence, which put the claims incontext from the respondents' perspective and have some relevance to the s 5assessment, are now noted.Susan, Peter and Imogen Atkinson – first and ninth respondents (Peter Atkinson onbehalf of the estate of Susan Atkinson)[25] Imogen Atkinson is diagnosed with spastic quadriplegic hypotonic cerebral palsy and suffers from dyslexia and dyspraxia. She has very high disability needs. She is wholly reliant on wheelchair mobility and requires a personal caregiver for allthe activities of daily life, including feeding, dressing, showering, toileting andmenstruation. We set out part of Mrs Atkinson's description of Imogen's needs asan example of what can be involved in the care of a disabled person.In relation to showering Imogen will wash as much of her body as she can with her left hand, she still needs help to shower and dry afterwards. She cannot feel the heels of her feet due to nerve damage from frequent ulcers. Her feet therefore need to be monitored carefully. She requires her meals tobe cut up into small pieces and she can manage a spoon or fork herself butneeds to be monitored carefully because of the risk of choking on her food.Imogen cannot be left alone because she has a very strong ‗startle reflex' andis at risk of losing control of her wheelchair and of falls in some situations.She requires a full-body lift for all transfers, and cannot use a hoist instead.This is because a hoist puts her body into extreme ‗high tone' and shebecomes very rigid. It then take a long time to loosen her up again after thehoist has been used and this requires lots of massage.The needs assessment marked B, carried out by Angela Hanson of TaikuraTrust on 27 February 2004, summarises Imogen's disability support needswell on page 10. She needs ‗Full assistance with all personal cares'.[26] Her mother Susan Atkinson, who is now deceased, provided an affidavitasserting that she had been unable to get satisfactory third party carers to look afterImogen. Detailed examples were given with problems encountered with third partycarers. She and Mr Atkinson allege that they were offered payment for work thatthey did but on the basis of it being ―under the table. They declined to receivepayments on that basis.[27] It was Imogen Atkinson's evidence, and that of her parents, that it wasalways her choice to live at home. It was where she felt comfortable and safe andmost free and independent. She said that her mother was her choice of caregiver.Gillian Bransgrove (second respondent)[28] Ms Bransgrove's daughter Jessie Raine has spina bifida with total paralysisfrom her armpit level down and total bladder and bowel incontinence. She also suffers from spinal curvature and other disabilities. Ms Bransgrove was originallyemployed to provide home-based support services for Jessie. The plan wascontinued for five years. In May 2005, she was advised that she could no longer bepaid because of the Ministry policy. Ms Bransgrove recounted the difficulty ingetting third party caregivers to adequately provide for Jessie's care. Ms Bransgroveis a registered nurse and her daughter filed an affidavit in support of her position.Jean Burnett (third respondent) and Stuart Burnett (eighth respondent)[29] Stuart Burnett suffers from spastic quadriplegia with athletosis and has very high disability support needs including the need to be fed. He has experiencedresidential care, and prefers care from his mother. He stated about residential care:While the resident's basic personal and hygiene needs are met – their other needs as human beings are sometimes neglected, from my observations.They have much less mental stimulation and far fewer opportunities forparticipation. They are mostly cared for by transient caregivers. They seemto lead restricted stifled lives with a loss of control over their own situation.[30] He prefers his ―safe and comfortable home environment and the care of hismother to that of contracted caregivers who, he says, are generally untrained and donot understand his disabilities. He owns half of the house with his mother and wantsto continue living there.[31] Ms Burnett confirms her son's strong desire to remain living in the home.She understands his needs and is able to communicate with him despite his inabilityto verbalise because she can read his body language and hand signals. She believesshe is the best person to care for him and to help him continue to achieve success inhis life. She and Stuart Burnett want individual funding. She was critical of theMinistry's refusal to fund her and had this to say about residential homes:The community stops at the door. People sit there – just sit for hours in theirwheelchairs – wall gazing. The community doesn't come to these peopleand their disabilities prevent them from participating in the communityThere is no family atmosphere at most of these places that I have detected –no community involvement. Just isolation. Casual caregivers, who developno bonds with them.[32] While being cared for by his mother at home, Stuart Burnett earned School Certificate in six subjects and Sixth Form Certificate. He completed a course in computer science and graduated with an advanced certificate in business computing. He is an avid boccia player and has completed nationally and internationally and had roles in the local boccia association.Laurence (Nick) Carter (fourth respondent)[33] Mr Carter's son Sven has serious intellectual disabilities. He is autistic,epileptic and mute. Mr Carter gave evidence of unsatisfactory experiences ofinstitutional care for his son including physical abuse.Peter Humphreys (fifth respondent)[34] Mr Humphreys' daughter Sian was born with Angelman syndrome and hasvery high disability support needs. He gave evidence of the difficulty he had ingetting persons with the appropriate skills to care for his daughter, both in terms oftheir turnover, their physical ability to cope, and their training. Mr Humphreys waspaid between 3 September 2001 and 7 April 2006 to care for her. When paymentswere terminated, he was notified that he could not be paid because of the Ministry'spolicy in relation to family members.Clifford Robinson (sixth respondent)[35] Mr Robinson has two intellectually disabled adult children, Johnny andMarita Robinson. He gave up his job as an engineer when the children were youngand took them out of residential care. He has cared for them himself since then. Hepresently receives the old age pension. The Ministry refused to pay him because hewas a family member. Then in September 2002 the Ministry commenced payinghim $200 per week towards his childrens' care as a temporary measure. This wasrenewed until February 2006 when it was increased to $800 per week. He thoughtthat this was the consequence of the work he was doing. At the hearing, it was put tohim by the Ministry that the $800 per week was being paid to him by mistake andfollowing the hearing this has been reduced back to $200 per week.Linda Stoneham (seventh respondent)[36] Ms Stoneham's daughter Kelly is intellectually disabled. For most of herchildhood, her caregiving was organised by the Intellectually HandicappedCorporation (―IHC). In 2000 Ms Stoneham took her daughter out of care and backhome. In her evidence she observes that she no longer has any legal obligationstowards her non-disabled three children but considers that her obligations to Kellyare ongoing. She asserts that she looks after virtually every aspect of her daughter'sdaily life but is not entitled to be paid for this work.The statement of claim and statement of reply[37] The relevant third amended statement of claim of 14 August 2008 allegedthat the policy of excluding specified family members of people who are eligibleunder its policies for paid disability support services, from payment for the provisionof such services by reason of their family relationship to the eligible person,contravened the provisions of the HRA.[38] The respondents pleaded that the Ministry's policies made a distinctionbetween persons who are available and willing providers of disability supportservices to particular persons who are eligible for those services by excluding agroup of such persons. The prohibited ground of discrimination is defined as follows:The defendant makes a distinction between these two groups of persons byexcluding one group of persons but not the other because the excluded groupare particular relatives of the persons eligible for paid disability supportservices or are particular relatives of persons wanting to be provided withpaid disability support services from them.[39] The relief sought was a declaration pursuant to s 92I(3)(a) of the HRA that the Ministry's practice and/or policy of excluding specified family members frompayment was inconsistent with s 19 and various consequential orders.[40] The Ministry admitted the policy of excluding family members from being funded to provide disability support services to an adult child, spouse or resident family member who qualified for funding disability support services. Indeed, it was clarified in submissions that the policy extended also to partners, whether they were resident or not. It was admitted that the Ministry treated care provided through natural support from family members differently to disability support services. The Ministry denied, however, that the care provided through natural support by family members was the same service as that provided as part of a disability support service.[41] In relation to circumstances where some parents, spouses and resident family members had been paid to provide disability support services, it was stated that almost all of the arrangements including those relating to the respondents were entered into without its knowledge and in breach of its policy.[42] The Ministry pleaded ineligibility of family members and others, but in a pleading which captures the essence of its position on discrimination it asserted:Funding from the defendant for paid disability support services is only available where essential disability support needs cannot be met through natural support, which includes, but is not limited to, family members;And:Where family members are not natural supports, those family members can be employed to provide disability support services with funding by the defendant.[43] The Ministry denies the respondents' pleading that they have beendisadvantaged by the policy. It asserts in relation to the parent plaintiffs that they donot provide disability support services, but rather provide care through natural familysupport. Insofar as plaintiffs have been employed, it is stated that this was in breachof the policy. The Ministry pleads that its policy and practice are justified.The Tribunal's decision[44] The Tribunal, having set out the basis of the claim, summarised the case for the respondents. It considered the factual context in considerable depth. It then setout the background to the policy and the framework for the Ministry's disabilitysupport services, and summarised the services that were the subject of theproceedings and the policy in question. The Tribunal also considered the decision ofHill v IHC NZ Inc5 and the policy review work which followed that and noted thatfollowing extensive Ministry review of the policy no ―clear cut position on the topicwas reached.6[45] Reference was made to the policy of the Accident Compensation Corporation(―ACC), which is to allow payments to parents and spouses of those who undertakethe care of injured persons at home. The Tribunal concluded the ACC exampledemonstrated that the payment of non-contracted family members to provide care isan integral part of the ACC strategy of caring for persons disabled by injury in thehome setting.7 It observed that it would appear from the experience of ACC thatthere is insufficient evidence to suggest that excluding the parents of those with non-accidental disability from equivalent payment arrangements is a supportable policyposition. The Tribunal also considered the New Zealand Disability Strategy and5 Hill v IHC NZ Inc (2001) 6 HRNZ 449.6 At [86].7 At [101].determined that on the surface, the policy would seem to be contrary to the objective and the policy of valuing families, whanau and people providing ongoing support.[46] The Tribunal considered the concept of ―natural support put forward by theMinistry as a basis for distinguishing between support it would pay for and support itwould not pay for. It did not regard it as natural for the support required for aninfant or child to be carried on into adolescence and adulthood with the expectationthat this personal care should continue. This was classified as disability supportrather than natural support.8 The Tribunal saw the test of ―reasonableness as thekey to determining the level of personal care that family members could be expectedto provide to a disabled family member.9[47] The Tribunal considered the financial evidence and believed that it wasreasonable to assume that there would be some change to Ministry expenditure as aresult of the change in financial support.10 It concluded that the likely potential costincrement if the policy was cancelled would be at the lower end of the range quotedby Ministry experts ($17 million) rather than the higher end ($593 million). Itconsidered the Ministry's submission that there was a social contract under whichcaring is accepted as a natural part of family life and undertaken as a familial duty.It was unable to discern such a social contract ―having the force contended for.11[48] The Tribunal went on to find that the respondents' proposed comparatorshould be applied and that there had been a disadvantage to the plaintiffs. It heldthat there was prima facie discrimination. It went on to consider whether the policywas justified under s 5 of the NZBORA. It applied R v Hansen12 as interpreted inChild Poverty Action Group Inc v Attorney-General13 and having gone through thevarious steps referred to in that case found that the policy could not be justified in afree and democratic society.8 At [139].9 At [146].10 At [163].11 At [182].12 R v Hansen [2007] 3 NZLR 1.13 Child Poverty Action Group Inc v Attorney-General HRRT Decision No 31/2008, 16 December 2008.Relevant statutory provisions and other instruments relating to discrimination[49] The structure of the HRA and the NZBORA required the claim before theTribunal to be brought under the HRA. Section 20I, the first section in Part 1A ofthe HRA, provides:20I Purpose of this PartThe purpose of this Part is to provide that, in general, an act or omission that is inconsistent with the right to freedom from discrimination affirmed by section 19 of the New Zealand Bill of Rights Act 1990 is in breach of this Part if the act or omission is that of a person or body referred to in section 3 of the New Zealand Bill of Rights Act 1990.[50] The purpose of the relevant part of the Act is therefore to make an act or omission inconsistent with the right to freedom from discrimination a breach of Part 1A of the Act if it is an act or omission of a relevant person or body.[51] Section 20L of the HRA provides:20L Acts or omissions in breach of this Part(1) An act or omission in relation to which this Part applies (including an enactment) is in breach of this Part if it is inconsistent with section 19 of the New Zealand Bill of Rights Act 1990.(2) For the purposes of subsection (1), an act or omission is inconsistent with section 19 of the New Zealand Bill of Rights Act 1990 if the act or omission—(a) limits the right to freedom from discrimination affirmed by that section; and(b) is not, under section 5 of the New Zealand Bill of Rights Act 1990, a justified limitation on that right.(3) To avoid doubt, subsections (1) and (2) apply in relation to an act or omission even if it is authorised or required by an enactment.[52] It can be seen therefore that s 20L(2) sets out the process for determining whether an act or omission is inconsistent with s 19 of the NZBORA.[53] Section 3 of the NZBORA provides:3 ApplicationThis Bill of Rights applies only to acts done—(a) By the legislative, executive, or judicial branches of the government of New Zealand; or(b) By any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.[54] Both parties have accepted that the actions in question of the Ministry ofHealth are actions that fall within s 3.[55] Section 19 of the NZBORA provides:19 Freedom from discrimination(1) Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.(2) Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part 2 of the Human Rights Act 1993 do not constitute discrimination.[56] Thus, s 19 by virtue of the express reference to it in s 20L sets out therelevant right to freedom from discrimination and refers back to the HRA by statingthat the prohibited grounds for discrimination are those in the HRA. Those are setout at s 21 of the HRA under the heading ―Prohibited grounds of discrimination.The relevant prohibited ground of discrimination is at s 21(l) which provides:21 Prohibited grounds of discrimination(l) Family status, which means—(i) Having the responsibility for part-time care or full-time care of children or other dependants; or(ii) Having no responsibility for the care of children or other dependants; or(iii) Being married to, or being in a civil union or de facto relationship with, a particular person; or(iv) Being a relative of a particular person:[57] Finally it is necessary to set out s 5 of the NZBORA which provides:5 Justified limitationsSubject to section 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.[58] Section 20L(2) specifically sets out a two stage consideration of whether anact or omission is discriminatory. First, the act is discriminatory if it limits the rightto freedom from discrimination affirmed by s 19. Thus, the initial step must be aconsideration of s 19 alone and whether there has been such a limit imposed. Thesecond question is whether under s 5 of NZBORA the act or omission is ademonstrably justified limitation on that right. Both parties accepted the two stepapproach. However, within those two steps there were variances between them. Inparticular they differed on the approach to whether there was discrimination, theMinistry urging an evaluative approach incorporating a consideration of whether, ifan act was discriminatory under s 19 in the sense of distinguishing between groups,the act nevertheless had the necessary quality of discrimination. The respondents didnot accept that such an examination of the nature of the discriminatory act wasappropriate.[59] The preamble to the HRA states:An Act to consolidate and amend the Race Relations Act 1971 and the Human Rights Commission Act 1977 and to provide better protection of human rights in New Zealand in general accordance with United Nations Covenants or Conventions on Human Rights.[60] The Convention on the Rights of Persons with Disabilities adopted by the United Nations14 and ratified by New Zealand in 200815 acknowledges the profound14 Convention on the Rights of Persons with Disabilities adopted by the United Nations at the 61stsession in 2006.15 United Nations Treaty Collection – located at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV- 15&chapter=4&lang=en.social disadvantages of persons with disabilities. In its preamble the Convention provides:(x) considering that the family is the natural and fundamental group unit ofsociety and is entitled to protection by society and the State and that personswith disabilities and their family members should receive the necessaryprotection and assistance to enable families to contribute towards the fulland equal enjoyment of the rights of persons with disabilities.(emphasis added)Has there been an act or omission by the Ministry inconsistent with s 19(1)?General approach[61] There has been little case law on s 19 of the NZBORA, given its ambit; far less than in Canada which has similar provisions. Important cases includeMcAlister v Air New Zealand,16 and Quilter v Attorney-General.17[62] Quilter is the appellate decision most directly on point. It considered directlythe purpose and scope of s 19. The issue in that appeal was whether same-sexcouples could marry. The plaintiff couples argued that the absence of a definition of―marriage in the Marriage Act 1955 meant that there was no bar to interpreting thatAct as permitting marriage between same-sex couples and that any other meaningwould not be compatible with s 19.[63] The Court of Appeal ruled first (by a three to two majority) that a prohibition on same-sex marriage did not amount to a prima facie infringement of theappellant's right to be free from discrimination, and secondly (unanimously) giventhat the concept of marriage contemplated by the Marriage Act was the traditional female-male partnership it would not be right to interpret the Act as inconsistent withthe right to be free from discrimination on the grounds of sexual orientation, as thatwould repeal the relevant sections contrary to s 4 of the NZBORA. The judgesfound different routes to reach this conclusion.16 McAlister v Air New Zealand [2010] 1 NZLR 153 (SC).17 Quilter v Attorney-General [1998] 1 NZLR 523 (CA).[64] Thomas J considered discrimination only on the basis of s 19, and because ofwhat he considered to be the clear discrimination on a prohibited ground, did notconsider it necessary to go on and consider s 5. That approach is inconsistent withthe two stage approach dictated by s 20L(2) (enacted after Quilter) and we do notfollow it.[65] The issue of the meaning of discrimination in the NZBORA was directlyaddressed by Tipping J. He noted that it was not defined by the HRA, but that someguidance could be found in s 65 of the HRA.18 That section refers to indirectdiscrimination, conduct which has the ―effect of treating a person or group ofpersons differently on one of the prohibited grounds of discrimination. He stated:19The section does not expressly identify the person or group with whom thenecessary comparison is to be made, but that must be either personsgenerally or another group as treatment is logically relevant to the person orgroup alleging discrimination.The essence of discrimination lies in difference of treatment in comparable circumstances. For discrimination to occur one person or group of persons must be treated differently from another person or group of persons. Of course difference of treatment will not necessarily in itself amount todiscrimination; and not all discrimination will be unlawful. (emphasis added)[66] Gault J observed on the concept of discrimination:20[T]o differentiate is not necessarily to discriminate. It is necessary to distinguish between permissible differentiation and impermissible differentiation amounting to discrimination. This is a definitional question and is to be considered before any issue of the possible application of s 5 of the Bill of Rights Act arises.[67] Keith J in discussing the concept of discrimination observed:21Rather the purpose is only to suggest that applications of the principle of equality or of the prohibition on discrimination will often have to take careful account of the context and competing principles and interests.[68] Richardson P did not discuss the concept of discrimination, and Thomas J didso in the context of assessing the difference in treatment against the ―fundamental18 At p 573.19 Ibid.20 At p 527.21 At p 557.purpose of preventing the infringement of essential human dignity.22 The differentdecisions have been subjected to different commentary in the two leading texts,23and some criticism. The absence of any agreement among the members of the Courton the concept of discrimination is noted by the authors.24[69] The various approaches in Quilter were not considered in depth in the laterSupreme Court decision of McAlister as that decision involved the application of s104 of the Employment Relations Act 2000, which contained a detailed definition ofdiscrimination. There is, therefore, limited appellate guidance on the correctapproach to s 19, and none of the various approaches in Quilter can be treated asconclusive.[70] Before the Tribunal, and in this appeal, it was admitted by the Ministry thatthere was a policy of excluding specified family members from payment for theprovision of services by reason of their family relationship. We do not understandthe Ministry to deny that there was a point of distinction in the treatment of familymembers such as the respondents, as against other persons seeking to be paid.[71] The thrust of the Ministry's submission was that the policy was notdiscriminatory, despite this distinction. The Ministry submitted that the reason for the difference in treatment must be shown to be a prohibited ground of discrimination. It asserted that the reason for the difference in treatment was not based on a prohibited ground, but for other reasons arising from its legitimate policies. The Ministry submitted that it is not discriminatory to treat those who are in different situations differently.[72] The essence of the Ministry's submission was that the respondents were in adifferent situation to other persons who were under the Ministry policy eligible for payment. The Ministry argued that if a comparison was made to a correctly identified comparable group, it could be seen that there was no discrimination. In carrying out that comparison exercise, it submitted that it was necessary to consider22 Egan v Canada (1995) 124 DLR (4th) 609 at 676; Quilter at p 533.23 New Zealand Bill of Rights, Rishworth pp 377–380; Butler & Butler, The New Zealand Bill ofRights Act: A commentary 17.9.22–17.9.23.24 Rishworth at 380; Butler at para 17.9.the four different types of relevant services provided by the Ministry. Ms Coleman, for the Ministry, also submitted that s 19 was aimed at substantive and not formal equality. She submitted that even if there were distinctions made on prohibited grounds, only those distinctions that have the effect of perpetuating group disadvantage or imposing disadvantage on the basis of prejudice or stereotyping are prohibited under s 19. They must not only be based on a prohibited ground, but have a discriminatory impact. Ms Coleman submitted that the distinction made in relation to the policy was not discriminatory. It was a considered and developed policy that had arisen from expert views, and which was in fact designed to assist disabled people and their families.[73] She submitted that a finding that there was a discriminatory policy would have widespread implications for DHBs which provide support to approximately twice as many disabled persons as the Ministry, and operate the same policy. She submitted that any other finding would challenge much of New Zealand's system ofincome support and social assistance, together with other areas such as home schooling, all of which are predicated on treating those within a family unit as a unit.[74] Ms Joychild for the plaintiffs took a very different position on the appropriate comparator group to that of Ms Coleman. Also, as we understood her submission, she did not accept that an evaluative approach to the type of distinguishing actions was necessary, and supported an approach that required any such exercise to be in the second s 5 step.Background to comparator exercise[75] The Ministry admits in its pleading in reply that its policy excludes parents and family members from providing the services in question. The prohibited ground of discrimination on the basis of family status includes discrimination on the grounds of being a relative of a particular person (s 21(l)(iv)). A parent is a relative. It follows that the Ministry policy turns on whether a person is a relative of a particular person. So there is at least a distinction made by the Ministry in its policy between family and non-family members.[76] However, that factor alone does not prove discrimination and take us to the s 5 exercise of whether the discrimination is justified. If all citizens were treated exactly the same we would live in a very different society from today. It is a fundamental tenet of our social structure that people of different ages, abilities andcircumstances are treated differently. Distinctions must be made. It would be unjustto persons with certain disadvantages if that were not so. By treating differentpeople differently we remedy inbuilt inequalities.[77] For instance, the domestic purposes benefit, available only to solo parents,involves a distinction based on family status, being the relationship of the parent to achild and the absence of a type of relationship with another person. Other benefitsvary depending on whether a person lives alone or with a partner, or are determinedby age. If governance is to be effective and provide for the inevitable differencesthat arise between people, distinctions must be made. We are satisfied that it isnecessary for there to be something more than a difference in treatment for a policyto be discriminatory.[78] All reference to equality was deliberately omitted from the NZBORA despitethe fact that the Canadian Charter of Rights and Freedoms (―the Canadian Charter)at s 15(1) expressly records the right of every individual to be equal before and underthe law before stating the right to the protection and benefit of the law withoutdiscrimination. Nevertheless, it is inescapable that the concept of discriminationinvolves the concept of equality, in the sense of not treating like people equally. Forthere to be discrimination not only must one person or group of persons be treateddifferently from another person or group of persons, but there must be similaritiesbetween those differently treated groups that make the different treatment unfair.The key is that the decision must involve the making of a distinction in the treatmentof otherwise like persons on the prohibited ground. The difference in treatment canonly be discriminatory if that difference in treatment is of persons in comparablecircumstances. As Tipping J observed,25 the essence of discrimination lies in thedifference of treatment to persons in ―comparable circumstances.[79] The question then arises, how is the Court in a principled way to determinewhether there is discrimination when there is a difference in treatment? The25 At p 573.Canadian Courts have developed an approach of carrying out a comparison exercise with others in a like group to the plaintiffs, to test the discriminatory aspect of the policy or provision. That was the approach adopted by the Supreme Court inMcAlister26 in the context of s 104(1)(a) of the Employment Relations Act where a comparison exercise is required. Discrimination is defined in some detail in that section, and there is discrimination if by reason of a prohibited ground of discrimination an employer refuses or omits to offer or afford an employee the same terms of employment as are made available for other employees of the ―same orsubstantially similar qualifications, experience, or skills employed in the same orsubstantially similar circumstances . This section was based on s 15 of theHuman Rights Commission Act 1977, the predecessor to the present HRA. Elias CJmade this comment about the application of comparators in that context:[34] In cases of alleged discrimination the choice of a comparator is often critical. We were referred to a number of decisions from senior courts in different jurisdictions which were said to provide guidance. For the most part, we did not find them especially helpful. Unless there are distinct similarities in the statutory scheme and in the type of discrimination which is being alleged, what is said in another jurisdiction about how to arrive at a comparator is of limited assistance.[80] The Court of Appeal in Quilter did not explicitly carry out a comparatorexercise. However, as Tipping J observed,27 the essence of discrimination lies indifference of treatment to persons in comparable circumstances. We are satisfiedthat the use of a comparator is a helpful exercise in assessing whether there has beendiscrimination. In doing so we note the observation of L'Heureux-Dubé J in Miron vTrudel:28Comparison is only a fruitful exercise when carried out between groups that possess sufficient analogous qualities to make the exercise of the comparison meaningful in respect of the distinction being examined. Thus, in thepresent case, the only appropriate comparison is between married personsand unmarried persons who are in a relationship analogous to marriage (i.e.of some degree of publicly acknowledged permanence and interdependence).In other words, with all things being roughly equal, the latter group is deniedthe equal benefit of the law for essentially one reason: the fact they are notmarried.26 At [34].27 At p 573.28 Miron v Trudel [1995] 2 SCR 418 at [8].[81] As this statement indicates, the carrying out of a comparator exercise can assist because it requires the Court to focus on the exact reason for the difference intreatment. In this regard, it is the process of arriving at the comparator as much asthe comparator itself which is the fruitful exercise. As Priestley J stated in ClaymoreManagement Ltd v Anderson:29There must be a consideration of the effect on a comparative person or group so that the differential of discrimination on a prohibited ground (if there isone) can be assessed. [82] In the absence of any obligation in the relevant sections to carry out acomparison of the type that there is in s 104(1)(a) of the Employment Relations Act,we are reluctant to treat any comparator exercise as the conclusive test fordiscrimination. Rather, the carrying out of a comparator exercise will assist in theprocess of determining whether the difference in treatment is in fact discriminatory.We will treat it as a tool only in that regard, and go on to assess whether there hasbeen discrimination after having carried out that comparator exercise. We have nodoubt that in assessing whether there has been discrimination, a central considerationis the effect on a comparable group. Thus, like the Tribunal, we commence ouranalysis by carrying out a comparison exercise.Submissions as to appropriate comparator[83] The Ministry submitted to the Tribunal that the appropriate comparator was―someone who does not provide natural support and who has not personallyindicated they are unwilling or unable to perform the work. In written submissionsin this Court it was submitted that in respect of home-based services, the propercomparator is someone who is employed to meet gaps in support that families andother natural supports are not able to meet, and is able to give families a break fromcare. In the course of oral submissions there was an emphasis on the comparatorgroup being those who could meet the ―unmet needs of the disabled person.29 Claymore Management Ltd v Anderson [2003] 2 NZLR 537 (HC) at [147].[84] The respondents argued that the appropriate comparator was ―everyone elseable and willing to provide disability support services to the same particularpersons. The Tribunal accepted the respondent's submission.Conduct of the comparator exercise[85] The Chief Justice noted in McAlister30 that under s 19 the Court was left to formulate its own concept of discrimination. This is in contrast to s 104 of the Employment Relations Act which applied in McAlister, which prohibited discrimination on a prohibited group if, by reason of that ground the employer failed or refused to make work available as was available to other employees of ―the sameor substantially similar qualifications, experience, or skills . It was stated inMcAlister31 by the Elias CJ for the majority:The task of a court is to select the comparator which best fits the statutory scheme in relation to the particular ground of discrimination which is in issue, taking full account of all facets of the scheme, including particularly any defences made available to the person against whom discrimination is alleged. A comparator which is appropriate in one setting may produce a completely inapt result in another. It will certainly do so do so if it effectively deprives part of the statutory scheme of its operation.[86] It was further observed by Tipping J:32[T]he most natural and appropriate comparator is likely to be a person in exactly the same circumstances as the complainant but without the feature which is said to have been the prohibited ground.[87] It is necessary in arriving at the appropriate comparator to consider all facetsof the scheme. The characteristics put into the comparator must be those relevant tothe grant or refusal, apart from the personal characteristic that is said to be theground of wrongful discrimination.33[88] It is helpful to consider the approach of the House of Lords in LewishamLondon Borough Council v Malcolm.34 Mr Malcolm had a mental health disability30 At [33].31 At [34].32 At [52].33 Hodge v Canada [2004] 3 SCR 357 at [1].34 Lewisham London Borough Council v Malcolm [2008] 1 AC 1399 (HL).and sublet his tenancy in breach of the Council rules during a psychotic episode. He was ejected from his flat as a consequence. He claimed discrimination on the basisof his disability. Lord Neuberger of Abbotsbury observed that there can be twolinguistically defensible constructions of comparator groups in such a situation. Thequestion was whether the disabled person's treatment should be compared simplywith that of a non-disabled tenant who had done the same thing, or whether thecomparison should be with a tenant who had not sublet at all. Lord Neuberger chosethe narrower construction. While there was a powerful argument in favour of thewider construction given the need to apply an anti-discrimination statute in themanner that was benevolent towards intended beneficiaries, the wider constructionwould have produced a ―highly invasive result.35 As was commented in relation tothat case in McAlister:36What His Lordship was doing was balancing the pros and cons of the adoption of the alternative comparators in the context of the whole of the statutory scheme, including such checks and balances as did, or would in the future, exist. That, it seems to us, is the right approach, best calculated to lead to a nuanced result.The comparator exercise in this case[89] We consider the two proposed comparators taking into account the whole ofthe context in which the disability support services operate.[90] Ms Coleman in her submissions emphasised the fact that at the heart of theMinistry's comparator was the fact those who would be eligible for payment wereonly available to meet the needs of the disabled person that were not met by thefamily and immediate support group, and that family members and the immediatesupport group were not available to meet unmet needs. This involves importing intothe comparator all the assumptions on which the Ministry is arguing its case. At theheart of this proposed comparator is the Ministry's assumption of the applicability ofwhat it calls the social contract37 which means that the disabled person's needs are―met by family members thus making them ineligible. Defining the comparator assomeone who is employed to meet gaps in support that families and other natural35 At [142].36 Elias CJ at [35].37 See [203]–[215].supports are not able to meet, and is able to give families a break from the care, is tobuild into the comparator highly artificial qualifications that incorporate theMinistry's policy decision as to why support should not be made available. It makesthe value judgment that family members meet the needs of their disabled familymembers without payment.[91] However, as the Ministry policy itself recognises, families do not necessarily meet the needs of family members. They will provide paid contract support whenfamilies refuse or are unable to provide it. When family members do providesupport, as in the case of the parent plaintiffs in this case, they sometimes meet allthe needs of the disabled person. Indeed, as a matter of fact at least two of the parentplaintiffs receive no benefits or payments at all, all the disabled child's needs beingmet by family members. They just want to be paid for doing so. The concept of―unmet needs is in this context a concept invented by the Ministry. The comparatorexercise becomes circular and the inevitable answer is favourable to the Ministry.Such an analysis involves the application of the very Ministry philosophy that it issaid is discriminatory. We therefore do not accept that the Ministry's comparatorshould be applied.[92] Further, the Ministry's comparator gives rise to the objection articulated inMcAlister38 that there is no work for the comparator to do. Once the Ministry'sassumptions are built in, the answer is inevitable. There is no discrimination on a prohibited ground, because the prohibited ground is neutralised by the building in ofthe contested assumptions which lead to the Ministry's desired result.[93] The issue arose in the course of presentation of the submissions, whether theappropriate comparator is persons who make themselves available for services todisabled people purely for payment, and not because of love and affection for aparticular person. This is the aspect of the Ministry comparator definition, when itsubmitted that the right comparator is persons ―who do not provide natural support.They are persons who make themselves available for services to disabled people formonetary reward, and not for the ―natural reason of love and affection for thedisabled person.38 Elias CJ at [37].[94] On reflection we consider such a distinction far too simplistic. It involvesaccepting the Ministry's premise that family support of disabled persons is ―naturaland presumably that non-family support is not. We do not accept the premise thatthere is a clear distinction between ―natural and ―non-natural support for thereasons we set out later when we reject the Ministry's submission that there is asocial contract under which it is accepted that family members provide support fordisabled persons through the lifetime of those persons.39 Moreover, while all therespondents in this proceeding are driven by love and affection, it is perfectlyconceivable that a relative who wishes to care for a disabled person could be aperfectly adequate carer, but not in fact be driven by love and affection. It is equallypossible that a paid worker who is not related may be driven by love and affection.The Ministry's comparator requires acceptance of the proposition that parents willsupport their disabled children whatever their age as a truism. We do not think itright to do so. As a matter of fact it is clear that there is no attempt by the Ministryto judge whether the offer of support by a family member is actually driven by―natural reasons of love and affection, or by a wish for payment. The application ofthe policy is automatic, if the applicant is a family member, and the member's actualmotivation is irrelevant.[95] The respondents propose that the group against which the discriminatoryimpact must be assessed is everyone else able and willing to provide disabilitysupport services to the particular persons. The question is, is this the group of ―likepeople to whom those that are subject to the policy can be fairly compared? Thepersons to be compared are those in our community who will do work for theMinistry to support disabled persons, for payment.[96] The evidence showed that the range of background skills, ages, and general circumstances of the respondents is considerable. With some exceptions they haveno formal training in caring for disabled persons. But nor do carers generally whenthey start in this sort of work for the Ministry. It is clear that the doing of the workof a paid carer under any of the four services cannot be described as ―professionalin the sense that it requires a course or degree as a training pre-requisite. The workis open to persons from all backgrounds, and training is not required. There would39 See [203]–[215].seem to be no reason why any competent person of any age or background, of good character properly motivated, could not successfully apply.[97] We are driven to the conclusion that this comparator proposed by theplaintiffs and accepted by the Tribunal is right. It is all persons who are able andwilling to provide disability support services to the Ministry. There should be noqualifications to ―able and willing.[98] This conclusion is consistent with the Canadian British Columbia Human Rights Tribunal decision of Hutchinson v BC (Ministry of Health)40 upheld in theSupreme Court of British Columbia41 where the claim was by a severely disabled 27year old whose 71 year old father was providing all her care, and had done so sincethe daughter was 13. The defendant's assistance programme had a policy in similarterms to that of the Ministry, which did not allow payments to family members likeher father. The Tribunal held that the comparator group to Ms Hutchinson was thedefendant's clients who were not restricted by the blanket prohibition either becausethey did not wish to or need to hire a family member.42 The claim that there wasdiscrimination on the basis of family status was upheld on appeal to the StateSupreme Court.[99] Thus, the comparator exercise indicates that the policy is discriminatory.The Ministry submission that there is no discriminatory impact[100] The Ministry submitted that whatever the result of a comparator exercise there is no discrimination as the policy does not have the effect of perpetuating agroup advantage or imposing a disadvantage on the basis of prejudicial stereotyping.It points to the fact that the policy is not based on actual prejudiced views in thetraditional sense such as racial or religious discrimination, or on any historicalpattern of discrimination. It was submitted that the context in which the claim ismade is important, and that the nature of the prohibited ground in question must befactored into the analysis.40 Hutchinson v BC (Ministry of Health) (2004) BCHRT 58.41 R v Hutchinson (2004) 261 DLR (4th) 171; [2004] BCSC 1536.42 Hutchinson v BC (Ministry of Health) (2004) BCHRT 58 at [101].[101] The Ministry referred to Alberta (Ministry of Human Resources and Employment) v Weller43 which concerned a claim that the ineligibility of a socialassistance recipient for a shelter allowance to assist with payment of rent because hewas living with his mother, was discrimination on the grounds of family status. TheAlberta Court of Appeal stated that the issue was not whether the recipients of socialwelfare had suffered historic disadvantage, but whether Mr Weller had beensubjected to discrimination because of family status. It was stated:44Family status has, on occasion, been the cause of pre-existing disadvantage, for example, illegitimate children and single mothers historically havesuffered discrimination in some instances. However, in this case the familystatus is merely that of being in a parent and child relationship. Being in aparent and child relationship in general has not been subject of historicpatterns of discrimination or prejudicial views.[102] The Ministry submitted that distinctions on the ground of family status do not have the same association with historical disadvantage and marginalisation as other more traditional grounds of discrimination. A number of Canadian cases were reliedon to support the submission that parents of disabled adult children are not adisadvantaged group.45 It emphasised that the Ministry's policy did not involvediscrimination born of prejudice, and family status was not a traditional basis forillegitimate distinctions.[103] If the Ministry is right, then it is necessary to adopt what is sometimes calleda ―purposive approach to whether there is discrimination. Can the policy orenactment be regarded as not discriminatory, even if there is prima facie a distinctionmade between like persons, and on a prohibited ground? There is support for thisapproach in some New Zealand dicta and commentaries, and as submitted by theMinistry, in Canadian decisions.43 Alberta (Ministry of Human Resources and Employment) v Weller 273 DLR 4th ed 116, leave to appeal to Supreme Court denied: Director of the Human Rights and Citizenship Commission vAlberta (Ministry of Human Resources and Employment) 432 AR 395 SCC.44 At [53].45 Newfoundland v Newfoundland (1995) 127 DLR (4th) 694 at [65]; Hutchinson v British Columbia (2004) BCHRT 58 at [142]; Wynberg v Ontario (2006) 269 DLR (4th) 435; and Harris v Canada [2009] 4 FCR 330 at [62].New Zealand authority[104] Thomas J in Quilter quoted the Canadian decision of Egan v Canada inasserting that46 ―[t]he existence of discrimination or otherwise can only bedetermined or otherwise by ‗assessing the prejudicial effect of the distinctionagainstthe fundamental purposes of preventing the infringement of essentialhuman dignity'. (emphasis added) He was of the view that the exclusion of personsfrom marriage on the grounds of sexual orientation was very clearly discriminatory.He appeared to have no doubt that the provision infringed essential human dignity.He decided that a s 5 exercise could make no difference.47 So he did not turn to s 5in considering the policy issues relating to difference in treatment.[105] Gault J in Quilter, although he took the opposite view to that of Thomas J asto whether there was discrimination, concluding that there was not, also appeared toconsider that a purposive approach to whether there was discrimination should beadopted. He observed:48It is necessary to distinguish between permissible differentiation andimpermissible differentiation amounting to discrimination. This is adefinitional question and is to be considered before any issue of the possibleapplication of s 5 of the Bill of Rights Act arises. Discrimination generallyis understood to involve differentiation by reference to a particularcharacteristic (classification) which characteristic does not justify thedifference. Justification for differences frequently will be found in socialpolicy resting on community values.(emphasis added)[106] However, the other three Judges did not, at least expressly, adopt such anapproach in the sense of considering whether the difference in treatment was anaffront to human dignity, or justified on community values. Tipping J in particularcentred his analysis on whether there was a difference in treatment between personswho were in comparable circumstances,49 and did not seek to analyse further issuesof human dignity and community values. Also Richardson P and Keith J, whilerequiring more than a difference in treatment, focussed rather on difference of46 At p 532.47 At p 540.48 At p 527.49 At p 573.treatment in comparable circumstances. There was no purposive assessment of the nature of the discrimination.[107] We do not regard the majority in Quilter, therefore, as requiring us to embarkon a subjective analysis of the nature of the discrimination, to see if there is a breachof s 19. We do not overlook Tipping J's observation that the spirit of the Bill ofRights and Human Rights Act ―suggests a broad and purposive approach to theseproblems.50 However, this remark was made in the context of him referring to theimpact of the conduct, rather than the nature of it. He observed later that he wouldprefer to define the right to be free from discrimination with the purpose of anti-discrimination laws in mind ―and then consider whether any suggested limitation isjustified or otherwise lawful rather than circumscribe the content of the right at theoutset.51 He observed:52if restrictions which may be legitimate or justified in some circumstancesare built into the right itself the risk is that they will apply in other circumstances when they are not legitimised or justified.[108] In Rishworth, The New Zealand Bill of Rights53 the Canadian approach isnoted to be likely to result in a denial of the protection of a right in a variety ofcircumstances in which complaints might reasonably be made. However, the learnedauthors do advocate a purposive interpretation of the right. In Butler & Butler, TheNew Zealand Bill of Rights Act: A Commentary54 a purposive approach is notsupported. Reservations are expressed about an evaluative consideration of thenature of the discrimination. Rather, a two-step approach at the s 19 stage isadvocated. The first stage is whether the impugned act treats two comparable groupsdifferently by reason of one of the prohibited grounds of discrimination, and thesecond is whether the different treatment involves disadvantage to the disfavouredgroup.5550 At p 575.51 At p 576.52 Ibid.53 Rishworth et al The New Zealand Bill of Rights at p 385.54 At 17.9.22–17.9.23.55 Butler & Butler, The New Zealand Bill of Rights Act: A commentary at 17.9.40.[109] The Tribunal in its decision did not engage in a purposive analysis of whetherthere was discrimination. Nor did the Tribunal in Child Poverty Action Group vAttorney-General Human Rights Review Tribunal.56Canadian decisions[110] The Canadian cases relied on by the Ministry showed the Courts carrying out a substantive analysis of whether there has indeed been discrimination. Fourvolumes containing 29 Canadian decisions were produced, and there were also somefurther decisions that were relied on. In addition, a number of United Kingdomdecisions were referred to.[111] The respondents urged caution in considering the Canadian decisions. Theypointed out that there are significant differences in the wording of the relevantprovisions. The equivalent of s 19 of the NZBORA is s 15 of the Canadian Charter .Section 15 provides:Every individual is equal before the law and under the law and has the right to the equal protection and equal benefit of the law without discriminationand in particular, without discrimination based on race, national or ethnicorigin, colour, religion, sex, age or mental or physical disability.[112] As noted,57 there is no equality guarantee in s 19 of the NZBORA as there is in s 15 of the Canadian Charter. The wording of s 1 of the Canadian Charter is much closer to the wording of the equivalent NZBORA provision at s 5. Section 1provides:The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.[113] In the Canadian Charter there is a non-exclusive list of prohibited grounds of discrimination set out within the section itself. In s 19 of the NZBORA there is no such statement. Rather, the HRA states that acts or omissions inconsistent with s 19 are in breach of Part 1A of that Act. Section 21 then goes on to set out the56 Child Poverty Action Group v Attorney-General Human Rights Review Tribunal HRRT 16 December 2008 at [116]–[142].57 At [78].prohibited grounds of discrimination in considerable detail in a definitive list.Family status is expressly referred to under s 21(1)(l) as a prohibited ground ofdiscrimination, whereas there is no explicit reference to family status in s 15(1) ofthe Canadian Charter. However, the Canadian courts have treated family status as aprohibited ground of discrimination by analogy.[114] We recognise the differences in the New Zealand and Canadian provisions.In particular, we note that in New Zealand there is no equality guarantee such as theequality guarantee in s 15 of the Canadian Charter. That omission was a deliberateaction by the drafters of the bill.58[115] In support of its submission that discrimination under s 19 required theperpetuation of group disadvantage or opposing disadvantage on the basis ofprejudice or stereotyping, the Ministry relied on the leading decision of Andrews vLaw Society of British Columbia59 and other Canadian cases.60 In Law v Canada theSupreme Court held unanimously that the protection of the right to freedom fromdiscrimination was limited to distinctions that undermine human dignity.Iacobucci J explained human dignity as follows:61Human dignity means that an individual or group feels self-respect and self- worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premised uponpersonal traits or circumstances which do not relate to individual needs,capacities, or merits. It is enhanced by laws which are sensitive to the needs,capacities and merits of different individuals, taking into account the contextunderlying their differences. Human dignity is harmed when individuals andgroups are marginalised, ignored, or devalued, and is enhanced when lawsrecognise the full place of all individuals and groups within Canadiansociety.58 A Bill of Rights for New Zealand: A White Paper, para 10.82.59 Andrews v Law Society of British Columbia [1989] 1 SCR 143 at 174.60 Miron v Trudel [1995] 2 SCR 418; Battlefords and District Co-operative v Gibbs [1996] 3 SCR566 at [37]; Nova Scotia (Workers' Compensation Board) v Martin [2003] 2 SCR 504 at [1], [5],[86] and [88]; Gosselin v Quebec [2002] 4 SCR 429 at [22]; Law v Canada (Minister ofEmployment and Immigration) [1999] 1 SCR 497.61 Law v Canada [1999] 1 SCR 497 at [53].Our assessment on whether we should examine the nature of the discrimination[116] In the Bill of Rights for New Zealand White Paper it was observed:62The word ‗discrimination' in this article [s 19] can be understood in twosenses – an entirely neutral sense synonyms with ‗distinction', or aninvidious sense with the implication of something unjustified, unreasonableor irrelevant. However, the result would seem to be much the same on eitherinterpretation because of the application of Article 3 [now s 5] whichauthorises reasonable limitations prescribed by law on the rights guaranteedby the Bill.[117] This statement indicates that the debate on whether the discriminatoryconduct is ―invidious is best left to the s 5 ―justified limitations second stage.While not every distinction is discriminatory and there must be different treatment oflike persons or groups, the evaluation of the type of different treatment of likepersons is to be left to the s 5 exercise.[118] It is also observed in para 10.82 in explaining why the phrase ―equalprotection of the law was not included in s 19, that such a phrase was open anduncertain and would:enable the courts to enter into many areas which would be seen in NewZealand as ones of substantive policy. A multitude of statutes treat different categories of persons in different ways. The equal protection provision inthe United States has been interpreted as giving the courts power to decidewhether there is a ‗rational basis' for any particular legislative classificationor distinction[119] We take this to indicate a lack of enthusiasm for judicial attempts to analysediscriminatory acts at the s 19 stage in terms of social policy.[120] Section 20L(2) of the HRA gives an indication. It specifies a two-stageapproach, first a consideration of discrimination and secondly, if there isdiscrimination, a consideration of whether s 5 applies. Section 21 of the HRA setsout ―prohibited grounds of discrimination without qualification. No evaluativeprocess is indicated. It goes against its unqualified language for there to be anenquiry into the quality and nature of the prohibited discrimination at the s 19 stage,after a prima facie breach is established.62 A Bill of Rights for New Zealand: A White Paper [1985] 1 AJHR A6, para 10.78.[121] In McAlister the Supreme Court, having found following a comparator exercise that there was discrimination, did not go further and consider policy aspectsbut rather referred the case back to the Employment Court for a consideration ofwhether Air New Zealand had a defence under s 30 of the Employment RelationsAct. There was no evaluation of the qualities of the discriminatory conduct, thatbeing left for the further hearing, akin to a s 5 hearing.[122] Essentially the Ministry is asking the Court to make a value judgment aboutthe type of discrimination at the s 19 stage, and that judgment will have a suddendeath outcome as to the success or failure of the appeal. We do not think itappropriate for such a judgment to be made at the first s 19 stage. In the Canadiandecisions relied on there is no distinct two-stage approach mandated by thelegislation, as there is in s 20L(2).[123] While the concept of discrimination on the basis of family status set out as aprohibited ground of discrimination in s 21 is not one of the historical types ofprejudice or stereotyping normally associated with discrimination, Parliament hasincluded it. The Ministry submission, if accepted, would require us to add to theprohibited grounds of discrimination at s 21(1)(l) the qualification that prejudice orstereotyping or some other pejorative feature must be present. We do not considerthat such the addition of such qualifications to the prohibited ground ofdiscrimination was the intention of Parliament. We consider it best to assessarguments of this type in the s 5 exercise, if it arises.[124] We do not agree that family status should be treated as a ground ofdiscrimination that is less discriminatory than more traditional types ofdiscrimination. We should not distinguish between a type of discrimination once itis proved in s 21 of the HRA. Family status is a prohibited ground of discriminationwith the other more traditional grounds. We are not prepared to discount ourconsideration of whether the policy is discriminatory, because it is not one of thosetraditional grounds.[125] We have not been able to find any support for the Ministry's submission thatwe should analyse the nature of the discrimination at this point other than the dicta inthe decisions of Gault and Thomas JJ in Quilter. Tipping J in Quilter referred to thes 19 exercise as involving ―prima facie discrimination on a prohibited ground anddid not go further.63[126] We note that the International Covenant on Civil and Political Rights to which New Zealand is a signatory64 includes an obligation to ensure protection ofrights for individuals ―without distinction of any kind . This would not seem toallow a value judgment analysis of whether the kind of discrimination is prohibited, when discrimination on a prohibited ground is found. We accept that someconsideration of the qualitative nature of the discrimination is unavoidable but weconsider that best done in the flexible balancing context of s 5, rather than in therigid discriminatory or non-discriminatory context of s 19. Thus we will not attemptan assessment of whether the different treatment is justified in terms of social policyand social values at this point.Conclusion on whether there is a breach of s 19[127] We have found that the essence of discrimination lies in the treating of persons in comparable circumstances differently. We have found that those who are in comparable circumstances to the parent plaintiffs are persons who are able and willing to provide any of the four disability support services. The respondent parentsfall within this group. They are persons who are able and willing to provide supportservices to disabled persons. But they are not treated in the same way as those otherpersons. When they apply to be contracted to provide home support services, theyfind they are not eligible to be contracted. The reason for this is a prohibited groundof discrimination. It is their family relationship with the disabled persons. Morespecifically, it is because they are the parents of disabled children. If they did nothave this family relationship, they would be eligible. We have no doubt that theywould have shown themselves to be able and willing to do the work.63 At p 576.64 United Nations Treaty Collection – located at http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV- 4&chapter=4&lang=en[128] Thus, a distinction is made between like persons (all those willing to providesupport services for disabled persons) on the grounds of a prohibited ground ofdiscrimination, namely family status. It is an undeniable fact that if a parent and anon-relative both sought to be paid for work for a disabled person, and if they wereboth equal in all respects including qualifications, experience and skills, theapplicant who was related would fail by reason of the relationship, and for thatreason only.[129] We are satisfied, therefore, that the respondents are persons who in relation tothose in comparable circumstances, are distinguished in their treatment by theMinistry because of a prohibited ground of discrimination. Like persons are nottreated alike because of a prohibited ground. We are satisfied, therefore, that there isdiscrimination. The right of the respondent parents to freedom from discriminationunder s 19 is, subject to s 5 considerations, being infringed.[130] The two respondent children are also discriminated against. They have a more limited range of choice of carer than others in comparable circumstances. This is because of their family status, namely their relationship with their parents. That relationship precludes them from being able to consider the full range of those able and willing to provide services to them. While other claimants who are not so related can be supported by the full range of the group of those able and willing to provide services, these respondents cannot because they have a particular family status; they are related to persons in that group. And by virtue of that relationship they cannot receive benefits from paid workers, who appear to be best able to provide that support. They are left in the position where that support, if it is made available, is unpaid.[131] This finding of discrimination is consistent with the conclusion reached in the Canadian decision of R v Hutchinson.65 Although there were differences in the typeof proceeding in that case, which only impacted on the particular plaintiffs, thefinding there that the policy had an adverse impact on the dignity and personalautonomy of the plaintiff is significant. It is the only Canadian decision we areaware of which considered the discriminatory impact of a no family members policy65 R v Hutchinson [2004] BCSC 1536.in relation to disability benefits. The approach and conclusion are consistent withthose of the Tribunal in this case.[132] The discrimination applies most clearly in the administration of home-based support services and the service of supported independent living. These are services where the Ministry, through service organisations, contracts persons to provide support for disabled persons. When the policy is applied to the administration of these services, it is discriminatory.[133] It does not appear to apply directly to the individualised funding service (if it can be called a service) as this gives a disabled person a personal entitlement to funds, and there is no Ministry contract with the provider. So the policy may not bite. However, if it is a term of the funding that no family members can be employed, that is a discriminatory policy, and disadvantages the family member.[134] As to contract board, we are by no means certain that there is a discriminatory aspect to the administration of this service. This is because it is a service specifically designed to provide support to a disabled person who is livingwith a family that is different from that person's own family. If that is so, the appropriate comparator is not all persons able and willing to provide the service. It is to a more narrow group of persons who by definition are not family members.[135] We did not have detailed submissions on this issue, and do not have sufficient information to express a specific conclusion in relation to contract board. We have considered seeking further submissions, but in the end do not do so. The Ministry does not deny that it has the policy and that it applies it to at least the two services of home-based support services and supported independent living. At this stage, all that is at issue is the general declaration as to whether the policy is discriminatory. While that context of its application is relevant to this, the fact that its application by the Ministry is uncontested means that a more precise service by service analysis is not at this stage necessary.Disadvantage[136] Discrimination under s 19 does not arise in a vacuum. It is necessary if discrimination is to be established for disadvantage to be shown by the claimant.There must be a discriminatory impact.66[137] This point can be dealt with shortly. There is no doubt that each of therespondents has been disadvantaged. The parent respondents have shown that theywish to do the work for the Ministry providers and are available to do so, but thatthey have not received paid work because of the discriminatory policy. The servicewhich they are clearly cut out from is home-based support services, although theymay have also been discriminated against in relation to individualised funding andsupported independent living. The disabled children respondents have not been ableto enjoy access to the unlimited range of contractors that other disabled persons notseeking help from family members can access.[138] The fact that the disadvantage evinces itself for the parents in monetary termsrather than in relation to available services, is not a basis for holding it not to bediscriminatory. The disadvantage can be a monetary disadvantage.[139] So the policy limits the right to freedom from discrimination affirmed by s 19. We now turn to s 5, the second step prescribed by s 20L(2).Is the policy a justified limitation under s 5?The approach to the s 5 exercise[140] In R v Hansen the Supreme Court considered whether the reverse onus ofproof in s 6(6) of the Misuse of Drugs Act 1975, which was accepted to be a limit onthe guaranteed right under s 25(c) of the NZBORA, could be justified under s 5.Four of the Judges adopted the test used by the Supreme Court of Canada in66 Quilter v Attorney-General [1998] 1 NZLR 523 at 575 (CA).R v Oakes67 and summarised in the later Canadian decision of R v Chaulk68 asfollows:1. The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right or freedom; it must relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important.2. Assuming that a sufficiently important objective has been established, the means chosen to achieve the objective must pass a proportionality test; that is to say they must:(a) be ‗rationally connected' to the objective and not be arbitrary,unfair or based on irrational considerations;(b) impair the right or freedom in question as ‗little as possible'; and(c) be such that their effects on the limitation of rights and freedomsare proportional to the objective.[141] Tipping J in R v Hansen considered the R v Oakes approach and provided thisadapted summary:69This approach can be said to raise the following issues:(a) does the limiting measure serve a purpose sufficiently important to justify curtailment of the right or freedom?(b) (i) is the limiting measure rationally connected with its purpose?(ii) does the limiting measure impair the right or freedom no more than is reasonably necessary for sufficient achievement of its purpose?(iii) is the limit in due proportion to the importance of the objective?[142] We propose to consider the limiting measure under these four overlappingheadings. In doing so we must be careful not to lose the overall sense of themeaning of s 5 and the broad balancing process that is required.67 R v Oakes [1986] 1 SCR 103 (Blanchard, Tipping, McGrath and Anderson JJ).68 R v Chaulk [1990] 3 SCR 1303 at 1135–1136.69 R v Hansen at [104].Deference[143] The Tribunal and this Court may not substitute their own judgment for that of the legislature or Government decision-maker. The Tribunal and this Court shouldnot decide what is an ideal system and then check whether the Ministry's systemmeets that expectation. Rather, the Tribunal must limit its focus to reviewingwhether the policy constitutes a breach of s 19 and, when it comes to the balancingof considerations under s 5, whether the decision-makers' action or policy can bejustified.[144] If discrimination has been established under s 19, then in considering whetherthe policy can be justified under s 5 the onus is unambiguously placed on the policy-maker by that section to demonstrate why it is justified. However, the Tribunal andthis Court must show restraint and caution when considering matters of policy.Courts must allow the decisionmaker some degree of discretion and judgment.70Lord Hope in R v Director of Public Prosecutions; ex parte Kebilene71 noted that inconsidering human rights, questions of balance between competing interests andissues of proportionality arise. He observed:72In this area difficult choices may have to be made by the executive or thelegislature between the rights of the individual and the needs of society. Insome circumstances it will be appropriate for the Courts to recognise thatthere is an area of judgment within which the judiciary will defer, ondemocratic grounds, to a considered opinion of the elected body or personwhose act or decision is said to be incompatible with the convention.[145] Tipping J observed in Hansen:73The Court's function is not immutably to substitute its own view for that ofthe legislature. In this way and to this extent the Court's function is one of review. It is not one of directly substituting the Court's own judgment. 70 R v Hansen at [117].71 R v Director of Public Prosecutions; ex parte Kebilene [2000] 2 AC 326 at 380–381.72 Quoted with approval in R (SB) v Governors of Denbigh High School [2007] 1 AC 100 at [63] per Lord Hoffman; and R v Hansen at [118] per Tipping J.73 At [123]–[124].[146] It must be acknowledged that experienced administrators will have anunderstanding of and feel for issues that the Court can never achieve. As wascommented in JTI-MacDonald Corp:74Again, a certain measure of deference may be appropriate, where the problem Parliament is tackling is a complex social problem. There may be many ways to approach a particular problem and no certainty to which willbe the most effective. It may in the calm of the courtroom be possible toimagine a solution that impairs the right of the State less than the solutionParliament has adopted. But one must also ask whether the alternativewould be as reasonably effective when weighed against the means chosen byParliament.[147] We accept the Ministry's submission that even though this policy is not thedirect act of elected representatives, when it comes to a policy for administering thepayment of limited Government resources to those in need, there should bedeference to policy decisions that are made by an expert department. The moreconsidered and refined the decision, the greater the deference. In carrying out thisexercise the Court must consider who has been the decision-maker, and the nature ofthe decision. It is relevant to consider the extent to which the policy has beenendorsed by Parliament or Cabinet, and whether the policy is in fact the result of afirm and final result of a considered process. If it is not the clearly articulatedconsequence of a considered process, but is rather a practice where the Governmentbody itself has not reached a firm policy conclusion, or indeed has doubts about thepractice itself, there may be less deference. A Court considering s 5 issues may insuch circumstances scrutinise the policy objectives more closely.Tribunal's view of its inquiry function[148] We note that the Tribunal observed that it:75does not have the function of judicial review as that is the function of theCourt, but it does have the function of inquiry.We therefore think there is no further purpose in deliberating this point, but, to affirm the inquisitorial role of this Tribunal.74 Canada (Attorney General) v JTI-MacDonald Corp [2007] 2 SCR 610 at [43].75 At [185]–[186].[149] We agree of course that the Tribunal does not have the function of judicial review, in the sense that that phrase is used in the Judicature Amendment Act 1972. However, in these paragraphs the Tribunal may be indicating that it has aninquisitorial role beyond that dictated in ss 105 and 106 of the HRA. Those sectionsprovide that:105 Substantial merits(1) The Tribunal must act according to the substantial merits of the case, without regard to technicalities.(2) In exercising its powers and functions, the Tribunal must act—(a) in accordance with the principles of natural justice; and(b) in a manner that is fair and reasonable; and(c) according to equity and good conscience.106 Evidence in proceedings before Tribunal(1) The Tribunal may—(a) call for evidence and information from the parties or any other person:(b) request or require the parties or any other person to attend the proceedings to give evidence:(c) fully examine any witness:(d) receive as evidence any statement, document, information, or matter that may, in its opinion, assist to deal effectively with the matter before it, whether or not it would be admissible in a court of law.(2) The Tribunal may take evidence on oath, and for that purpose any member or officer of the Tribunal may administer an oath.(3) The Tribunal may permit a person appearing as a witness before it to give evidence by tendering a written statement and, if the Tribunal thinks fit, verifying it by oath.(4) Subject to subsections (1) to (3) of this section, the [Evidence Act 2006] shall apply to the Tribunal in the same manner as if the Tribunal were a Court within the meaning of that Act.[150] The Tribunal can have an inquiring role in the sense of being able to call forevidence and information. However, these sections do not give it an inquisitorialrole in the sense that European Courts have an inquisitorial jurisdiction. It has thetraditional role of a Tribunal in the adversarial system to act as arbiter of the respective cases. Its function under s 94(a) is to consider and adjudicate upon proceedings. The Tribunal's inquisitorial powers are limited to matters of evidence, and not the matters at issue. Its adjudication must be by a structured process, and the guidelines in Oakes and Hansen provide a helpful structure. It must determine the respective arguments following that structure. As McGrath J commented in Brooker v Police:76In undertaking the balancing of the conflicting interests it must be kept firmly in mind that the purpose of the Court is to reach its decision through structured reasoning rather than an impressionistic process.(footnotes omitted)[151] So if the Tribunal was indicating that it had the general obligation toinvestigate the nature of the policy without deference to the Ministry's position, wedisagree. However, it is by no means clear that the Tribunal did mean this, as it thenwent on, quite properly, to follow the Hansen guidelines in its s 5 analysis.First s 5 question – sufficiently important purpose?[152] Whatever the nature of the provision in question, it is necessary to identifythe government objective. Only then can the importance and significance of thatobjective be assessed under s 5. As was observed by the Court of Appeal inMoonen v Film and Literature Board of Review:77The way in which the objective is statutorily achieved must be in reasonable proportion to the importance of the objective. A sledgehammer should not be used to crack a nut. The means used must also have a rational relationship with the objective, and in achieving the objective there must be as little interference as possible with the right or freedom affected. Furthermore, the limitation involved must be justifiable in the light of the objective. Of necessity value judgments will be involved. Ultimately,whether the limitation in issue can or cannot be demonstrably justified in a free and democratic society is a matter of judgment which the Court is obliged to make on behalf of the society which it serves and after considering all the issues which may have a bearing on the individual case, whether they be social, legal, moral, economic, administrative, ethical or otherwise.76 Brooker v Police [2007] 3 NZLR 91 at [132].77 Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 at [18] per Tipping J.(emphasis added)[153] We do not at this first step under s 5 try and assess the ultimate strength ofthe arguments in support of the policy when assessed against those against it. Thatconsideration is best left for the balancing carried out in steps 3 and 4. In this firststep our aim is to identify the objective and its importance in general terms. As wasobserved in Wynberg:78[T]he Court must consider the objectives that underlie the age limit inconjunction with the overall aims of the program. The Supreme Court ofCanada has referred to this as the ―tension of the objectives, recognisingthat all legislation, particularly social benefits legislation, is the product ofcompeting objectives that lead to certain compromises.[154] In order to identify the objective of the policy it is necessary to consider itshistory, and how it is justified from the Ministry's perspective. It is also necessary toconsider its articulation. The definition and bounds of the policy must beunderstood.79 We will assess in this part of our judgment the ―social contract, theupholding of which the Ministry puts forward as a key objective.Witnesses and submissions on the policy[155] Before the Tribunal there was a great deal of detailed evidence about thereason for the policy and the difficulties in employing close family members. Theprinciple deponents were a Miss Rhondda King, the quality manager with the Healthand Disability National Services Directorate, Ministry of Health; Dr Peter Watsonwho is an expert in health while being involved in development issues of youngpersons with disabilities; Mike Gourley who was at the time of the hearing beforethe Tribunal the National President of the National Association of People withDisabilities and who gave evidence from the perspective of someone with animpairment; and Suzanne Win who has extensive experience in the disabilityservices both as a nurse and in a managerial and directoratial capacity. There wasalso the more general evidence of Patricia Davis, the National Operations Managerfor the Disability Services Group and the Health and Disability National Services78 Wynberg v Ontario (2006) 269 DLR (4th) 435 at [165].79 R v Hansen at [203].Directorate and the evidence of Deborah Hughes, the National Service Manager forthe Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.[156] It is necessary to record first the position of counsel on two matters. First, asobserved at the outset, the Ministry's policy is described as a ―practice and/orpolicy in the third amended statement of claim. The practice and/or policy has beencriticised by the respondents as inconsistent, being neither a clear or final policyeither of Cabinet of the Ministry. It is suggested that it is really no more than apractice that is indicative of a work in progress. The Ministry, on the other hand,submitted that there is a clear and definite policy.[157] The second point is that despite its submission as to the nature of the inconsistent and inconclusive nature of the policy, for the purposes of s 5 of NZBORA and for the purposes of this hearing, the respondents accept that the policyand/or practices are ―prescribed by law. They accept therefore that this requirementis met for s 5 purposes.[158] Nevertheless, it submitted that the uncertain nature of the policy and the lackof explicit endorsement are relevant when it comes to the s 5 balancing process.Development of policy or practice[159] We turn to the history of the development of the policy. There was littlebefore the Tribunal setting out how disability support services were provided prior to1991. Disabled persons tended to live in institutions, and such policies as existedhad developed in an ad hoc manner.[160] On 30 July 1991, the Minister of Social Welfare with the Ministers of Health, Education and Housing in a joint statement indicated that Government policy wouldmove away from a universal system of social assistance to a targeted system basedon the genuine needs of the family unit, with better control of Governmentexpenditure as one of its objectives.80 In the following year, 1992, the Governmentreleased its blueprint for the provision of disability support services.81[161] Until 1994 there were Area Health Boards, and then Regional Health Authorities who in the 1990s developed purchasing policies and service specifications. In August 1994, the Government released a further paper.82 This setout the still current disability support services framework in the context of new dealand welfare reforms. The ―new deal set in place the NASC system.[162] The NASCs and other providers of services are contracted to the Ministry to provide needs assessment and coordination services. There are approximately 800service providers which contract with the Ministry to provide services which theMinistry funds. However, in the end the exact history of the formulation of thepolicy is not clear from the documents that are before us and was not clear to theTribunal.83[163] By the year 2000 the structures currently in use involving NASCs had been set up for some time. By then there was undoubtedly a usual practice at least whereby family members were not contracted for home-based support services. Thiswas reflected in the practices recorded in the important Tribunal decision of Hill vIHC NZ Inc.84[164] In Hill v IHC the plaintiffs were the parents of a 27 year old man who hadbeen under the care of IHC for many years in a contract board situation, with paidcaregivers. When the previous caregiver moved from the area the parents applied forthe position of caregiver but were informed that they could not be employed in sucha role because of an implicit policy which required the IHC to ensure that thosecontracted to provide residential contract board services were not family members ofthe persons requiring care. The Tribunal noted that there was no express or writtenpolicy which existed requiring those contracted to not be family members of the80 Social Assistance: Welfare that Works, a statement of government policy on social assistance,30 July 1991.81 Support for independence for people with disabilities – a new deal – 1992.82 The New Zealand framework for service delivery, August 1994.83 Tribunal decision at [59].84 Hill v IHC NZ Inc (2001) 6 HRNZ 449. Note the earlier decision of Hill v IHC NZ (2000)6 HRNZ 213.person requiring care.85 The existence of a policy was not accepted.86 The Tribunal went on to hold that there was in fact such a policy. It held that the decision torefuse to consider the parents' application to be the residential contract boardprovider was not an action saved by the provisions of s 151(2) of the HRA, and that the decision not to consider the plaintiffs as caregivers breached s 22(1)(a) of the HRA (prohibiting discrimination in employment matters).[165] It had been accepted by IHC that if the Tribunal found that the decision toturn down the plaintiffs' application was not an action saved by the provisions of s 151(2) of the HRA, that the policy not to consider the plaintiffs as caregivers breached s 22(1)(a) of the Act.87 The Tribunal made a declaration that the IHC had committed a breach of s 22(1)(a) of the HRA relating to discrimination in employment matters. Because of the concession, the decision did not involve any analysis of whether there was a breach of s 19, and as it transpired there was no consideration of s 5.[166] Ultimately there was no appeal from the Hill decision (the Ministry was not a party). A draft report from the Ministry of Health to the Ministry of Social Development was prepared, which considered the policy issues arising out of theHill decision. That paper which appears to have been released in late 2001 or early 2002 noted that payment to family caregivers had a number of difficult and complex ethical and practical problems,88 and noted a number of public policy reasons to make family members eligible for payment as caregivers on a different basis from other caregivers.89 Further policy work was recommended.[167] In 2002 an inter-department working group on the payment of caregivers was set up. It was to develop policy advice for the Minister and amongst other things to consider the policy implications of the options of allowing or not allowing or restricting or limiting the employment of family members as paid caregivers of85 At [5].86 At [7].87 At [9].88 Ministry of Health Draft Report 2001/2002 at [29], [32]–[60].89 At [61]–[82].persons with disabilities. It was to develop ―clear and consistent criteria to applyacross Government agencies.[168] On 6 November 2002 there was a second draft report from the Ministry of Health which discussed various options for providing some financial recognition for family members including broader eligibility for the domestic purposes benefit for carers, an allowance for carers, broader eligibility for carer support and a wage for caring.90[169] On 11 June 2003 the Office of the Minister for Disability Issues provided a report to the Social Development Committee seeking approval to lead a review of the policy of payments in support for family members following the Hill decision.91[170] On 11 June 2003 there was a Minute of the Cabinet Social DevelopmentCommittee on the ―review of payments to in support of family caregivers of peoplewith disabilities. In the proposed terms of reference that were annexed there wasreference to options to be orientated around:92The status quoEnabling the contractual employment of family members as thecaregivers of people who have disabilities and who would otherwisebe receiving care from other paid caregivers.Government payment of an entitlement (wage or benefit) to family caregivers of people with disabilities, to recognise and support them in the tasks of caring for which they ordinarily have responsibility.Government provision of additional assistance – monetary and/or in- kind – to support family caregivers of people with disabilities.There was to be consultation and a further report.[171] Through February there were further papers and Minutes indicating that thework was in progress. On 15 March 2004 there was a Cabinet Minute headed90 Second draft report 6 November 2002.91 Report to Social Development Committee, 11 June 2003.92 Appendix 1, para B.―payments to in support of family caregivers of disabled people: Governmentobjectives and position statement.93 One of the principles set out was:94Family caregiving of disabled people will not be expected to replace thework of professional support services.[172] Under related objectives it was stated that Government policies for familycaregiving will work to ensure that family caregivers of disabled people areprotected from economic hardship or insecurity arising from their caregiving roleand to ensure that due attention was given to the full range of costs likely to be facedby them.95[173] There were further papers circulated through 2004 from the Ministry ofHealth. The options speculated upon included the option of employing familymembers as caregivers. Treasury officials in a paper of 22 July 2004 are recorded asindicating that funding parameters for such a development would be in the ―fives ofmillions category. An email from Treasury to the Ministry of Social Developmentof 3 November 2004 referred to the need to gather empirical information so that costoptions could be developed.[174] On 11 August 2005 there was a draft paper of the Office of the Minister of Disability Issues issued. It referred to Hill v IHC96 and s 5 of the NZBORA.97 It considered whether the policy was a justified limit on the right to be free from discrimination, identified key aspects which justified the policy and recommended its continuation. The paper discussed the disadvantages and advantages of providing for payment and the lack of empirical information about family caregiving of disabled people.98 There was a further inter-departmental working group meeting on 15 November 2005 and feedback was received.93 Cabinet Minute 15 March 2004.94 At 2.4.95 At 2.5 and 2.7.96 At [1].97 At [4] and [25].98 At [34].[175] There was a revised draft paper on 22 December 2005. That paper99suggested that the policy was not necessary for the preservation of the ―social contract and that family members could be contracted to care for disabled peoplewithin their families and that could be seen as supporting the social contract. A paper of 30 January 2006 records100 that ―the Department of Prime Minister and Cabinet considers the paper's human rights orientation is too strong and that itneeded to be focused around an analysis of what it means to have family members as caregivers and how that could or should be managed.[176] In a letter of 26 April 2006,101 the Minister for Disability Issues advised theChair of the Cabinet Social Development Committee that the work on the review ofpayments in support of family caregivers of disabled people had been in effectsuperseded by the present case. It was proposed that the review process involve onlyone further report back.[177] At this point, therefore, in April 2006 there would seem to have been noconclusions reached by the Minister for Disability Issues or Cabinet as a result of thereview following Hill. The emphasis in the material leans more towards reviewingthe practice of not paying family members, and determination of the issue is clearly awork in progress. In the meantime, on the evidence available the general practice ofthe Ministry was not to pay family members.[178] However, that was not the end of the consideration of the issue, although thepresent case was now in progress. There were further reports through 2006 and areport to the Minister for Disability Issues from the Director of the Office forDisability Issues.102 It was earlier stated in the paper that what the Office wanted toachieve was as follows:103We want carers to be able to provide care to a disabled family member, if they choose to and the disabled person wants them to provide that care, and it is appropriate for them to do so.99 Revised draft paper at [6].100 Office for Disability Issues paper 30 January 2006 at [6].101 Letter of 26 April 2006 at p 1.102 Report of 20 October 2006.103 At [3].[179] It was commented in relation to care by family members:104It has been suggested that the potential framework if it is to be paid could‗open the flood gates'. This is a genuine risk, albeit often overstated. Theevidence suggests that carers rarely access their full entitlements, and thosein receipt of DPB/CSI very rarely perpetrate any fraud.[180] It was considered that further work should be undertaken as part of thedevelopment of the carer strategy to determine the required elements for atransparent and highly auditable process, and to develop guidance on how toevaluate the potential benefits and risks.[181] A draft paper of 8 November 2006 from the Office of the Minister for Disability Issues to the Chair of the Cabinet Social Development Committee soughtagreement to the payment of family caregivers of disabled persons for the provisionof services in specified situations. It specifically recommended that disabilitysupport organisations be able to employ or contract family members, and thatguidelines be developed. This report is generally very sympathetic to providingpayment to family members and critical of arguments to the contrary.[182] In an urgent email two days later, on 10 November 2006, the Director of the Office for Disability Issues recalled the 8 November paper stating that it was an early draft of a paper that had not been through the internal quality assessmentprocesses and did not therefore represent the views of the office or the Ministry ofSocial Development. It asked for any copies to be returned or destroyed.[183] In April 2008 the Cabinet Policy Committee approved a New Zealand carerstrategy and five year action plan. A carers' allowance proposal was discussed.Action would include examining options for allowing a wider group of people withsignificant caring responsibilities the choice of accessing income support, and todevelop a proposal for a carers' allowance.104 At [22].Exceptions[184] The Ministry's paper reveals that 272 exceptions have been made to thepractice. As the Tribunal decision recorded, reasons given were stated as beingcultural, involving client or family choice, the unavailability of carers or of carersskilled enough, geographic isolation and safety factors.105[185] The Ministry does not appear to have any policy on exceptions at all. Certainly none was articulated in submissions. It appears to have taken the view that where payments have been made to family members that has been a mistake. The policy, therefore, seems to be inflexible and is on the face of the evidence, at times,capricious. There is no inbuilt system whereby it can respond to particular supportneeds and family dynamics. Any exceptions appear to be ad hoc. In the end we areleft uncertain as to how and why exceptions occur.[186] The evidence of some of the plaintiffs, in particular Ms Bransgrove,Mr Robinson and Mr Humphreys shows an unpredictable response on the Ministry'spart to the request for payment. They received some payments while Ms Burnett andthe Atkinsons received nothing. In some of the literature there is a reference to―cultural exceptions, but there has been no acceptance by the Ministry of suchexceptions.What is the policy?[187] Ms Joychild for the respondents submitted that the policy at issue in this case would be better regarded as a practice. Ms Coleman submitted that it was best described as a policy.[188] This brief review of the considerable body of material available where the issue of providing contract support for family members has been debated, leads us to conclude that there is no clearly articulated policy not to pay family members. Indeed, a consideration of the policy papers alone would tend to indicate an ongoing debate about what the policy should be, rather than a firm decided policy.105 At [90].Throughout the period of this debate, however, the practice of the Ministry has been, with some exceptions, not to contract with family members, and such a practice is articulated on the Ministry's webpage.[189] The closest to a Cabinet decision on the topic is to be seen in the Minute of15 March 2004 where it is stated: ―family caregiving of disabled people will not beexpected to replace the work of professional support services,106 that attentionshould be paid to the full range of costs to be faced by family caregivers107 and thatthe policy should ensure that family caregivers of disabled people have access toknowledge, skills and services required to help them provide care to complementthat of professional support services. These statements may obliquely recognise apractice, but are far from a Cabinet endorsement of any policy of non-payment tofamily members.[190] The statements of the policy have varied. We asked the Ministry to provide us with expressions of the policy prohibition so that we could consider its detailedarticulation. In relation to home-based services we were referred to a statement inthe New Zealand Ministry of Health webpage accessed in 2008 which stated:108DS does not permit payment to/or employment of:[1] Any resident family member, including full-time carer/s.[2] Non-resident spouses/partners.[3] Non-resident parents/guardians.[191] In relation to individualised funding services there was a statement:109Resident family members, spouses, and other full-time carers, cannot be employed or paid to provide personal support services for their disabledfamily member.[192] In relation to contract board service specification it is stated that persons areexcluded ―except by specific case by case negotiation if they are: 110106 At 2.4.107 At 2.7.108 NZ Ministry of Health webpage, 21 September 2008 p 6.109 At 5.6.110 At 4.2.2.Living with family/whanau.Community residential services.Supported independent living.[193] In relation to supported independent living, their guidelines state that itcannot be provided in a person's parental home ―unless it is part of a transition.111[194] In relation to carer support services, the definition was of ―spouses, parents,partners and other full-time carers,112 community residential support services ―theirown family, whanau or guardian113 and in relation to the home and communitysupport sector ―family and/or whanau members who are not employed by a serviceprovider.[195] It can be seen that although all the plaintiffs in this proceeding would fall inthe definition of excluded family members, the extent of the excepted group isunclear. In some instances it can extend to neighbours and whanau and in others itappears to be limited to resident family members and spouses.[196] This history and the lack of precise definition of the policy demonstrate a lack of any developed policy. Indeed, the position is succinctly summarised by the withdrawn draft ODI paper of 8 November 2006 as follows:114Lack of transparent policy development process: Lack of documentationsuggests that current non-payment policy has emerged without ever havingbeen subject to a rigorous or transparent policy development process.[197] We agree with this assessment. However, we accept that there is an ill-defined practice to exclude resident family members from providing any of the fourrelevant services. We accept that those in the Ministry who determine what personsactually receive contracts would regard the practice as a policy that they mustrecognise, although clearly some exceptions have been allowed.111 At 2.3.112 Carer Support Guidelines for Service Coordinators, at 6.5.113 Service Specification – Physical Disabilities, at 7.1.114 At [14].Reasons for the policy[198] It is not possible to do justice to the detailed reasons set out to support thepolicy the Ministry's evidence and submissions. However, key points were set outin a 2002 draft confidential report the Ministry of Health sent to the Ministry ofSocial Development where certain concerns behind the policy were discussed. Wefollow the summary in the Crown submissions in setting these out:1 Concern that payment to family caregivers through a contractedservice provider would confuse the relationship between providerand organisations and families;2 Concern about monitoring the quality of family care giving withoutintruding into family ‗freedom of choice' and privacy;3 Concern about protecting the rights of people with disabilities toexercise freedom of choice as to who their caregivers are to be;4 Concern that payments to family members as caregivers might distort the relationship between family and people with disabilities,in particular the ‗duty of care' by parents for a child with adisability.5 Concern that payments to family members as caregivers might lock adults with disabilities into non-normative living situations.[199] There was a theme of much of the discussion that followed in the paperjustifying policy, that a policy is required to preserve what is called the ―socialcontract.115 For instance, the draft ODI paper of 11 August 2005 noted that thepolicy underlies much of New Zealand's social policy. Any change is likely tooperate as a precedent for family members to fulfil other kinds of familyresponsibilities. That paper observed that changing the policy would conflictdirectly with the object of preserving the social contract, and noted that the caringduties carried out by family members are additional to the kinds of duties that mostfamilies ordinarily face. It is a theme of many of the justifications of the policy thatit will not be possible to properly monitor family caregiving without intrusion intofamily privacy and the distortion of family relationships. There is concern that achange could turn families into institutions rather than domestic units.116115 See [203]–[215] below.116 ODI draft of 11 August 2005 at [36]–[40].[200] Mr Gourley, who spoke from the perspective of an independent person and not on behalf of any organisation, was concerned that paying family members would constrict the autonomy and independence of disabled persons, and limit their ability to move away from the home. Disabled people need to be able to make that move without there being financial pressure, in a sense of the retention of family payments from the Ministry, on them to stay. He did not think it healthy for family supports to become professionalised (in the sense of paid) in the way that those who provide Ministry of Health services are paid.[201] The Ministry in its submissions summarised nine important purposes of thepolicy which somewhat overlap with the objectives set out in the 2002 Ministry ofHealth draft paper. These were:1 To reflect and support the social contract between families and thestate, under which the primary responsibility for providing care tofamily members rests with families;2 To promote equality of outcomes for disabled people;3 To encourage the independence of disabled people;4 To avoid the risk that families will become financially reliant on theincome;5 To support the development of family relationships in the same wayas they develop for non-disabled people;6 To avoid professionalising or commercialising those relationships;7 To ensure that the delivery and quality of publicly funded supportservices can be monitored;8 To avoid imposing unsustainable care burdens on family members; and9 To be fiscally sustainable.[202] We accept this as an accurate summary of the Ministry's purposes. We willnow consider the validity of the first concern, which is to uphold the so-called―social contract.The social contract[203] The social contract has been articulated in various Ministry documentsincluding the 2002 draft report from the Ministry of Health, the ODI draft paper of11 August 2005 and the revised draft paper of 22 December 2005, as a basis forjustifying the policy. Ms Coleman submitted that the question was not whether thereis a social contract as claimed, but whether the government thinks there is. Weaccept that we should not readily substitute our view for the considered opinion ofthe Ministry. We will review the reliance on the social contract, taking into accounthow it is articulated, and we accept Ms Coleman's submission that if there is areasonable basis for the Ministry's perception of the social contract, that we shouldnot replace it with our own view.[204] The social contract as articulated by the Ministry is that it is not normal in New Zealand society for family members to be paid to care for other family members. It was articulated in this way on 1 March 2004 in the revised paper submitted to the Social Development Committee by the ODI:117New Zealand, like most countries, has tended to operate with an implicit social contract under which caring is accepted as a natural part of family lifeand undertaken as a familial duty. There is an underlying, though notformally articulated, principle that people should not receive payment fromthe State to provide care for family members, including disabled familymembers, to whom they owe this ―familial duty.[205] In the 2002 draft report it was observed:118Caring is considered to be a normal and natural part of family life and isundertaken because of the commitment and love family members have foreach other.[206] Evidence of the social contract was given by two witnesses for the Ministry,the Deputy Director-General of Health, Geraldine Woods and Dr Peter Watson.These witnesses, particularly Dr Watson, were challenged in cross-examination inrelation to their perception of the social contract. In its decision the Tribunalobserved that it was unable to specify the actual ingredients of a social contract in117 At [17].118 At [41].New Zealand.119 It noted that the authors of the Cabinet Social Development Committee paper recognised that families caring for disabled people haveresponsibilities over and above those ordinarily faced by families. It noted the ACClegislation in which household family members and other family members are paidfor care.120 The Tribunal was unable to discern the existence of such a socialcontract.[207] Like the Tribunal, we are left unconvinced that a social contract of the type relied on by the Ministry exists in New Zealand. The evidence does not prove it, assuming that such a matter was capable of proof. There is certainly a perception in the community, discernible in the Ministry papers, of a duty on the part of parents to look after their children up to a certain age, in the sense of providing them, within their means, food, shelter and clothing. This concept extends to ensuring that they are educated, and insofar as is possible within the confines of the home, caring for them in the event of illness, or ensuring that they receive proper care. However, it is another matter altogether to suggest that there is such a duty owed by parents to disabled children for the duration of the life of those children, and that the duty or contract extends to caring for them in the disabled state, no matter how severe that disability. While we do not feel qualified to express any final views on familial duties, we note a clear distinction between the orthodox parental duties we have mentioned, and those of the parents of disabled children. This is best demonstrated (as an extreme example) by the level of caring required for Imogen Atkinson.121[208] The Ministry relied on a statement in Alberta (Ministry of Human Resourcesand Employment) v Weller. It was observed in Weller that family status:122[I]s relevant only because it is the basis of the underlying assumption thatrent for shared accommodation is not ordinarily expected to be paid by anadult child without the means to do so. Given that the relationship is non-arms length and is normally associated with love and affection, theproposition is based on commonsense and experience.119 At [176].120 At [178].121 At [25]–[27].122 Alberta (Ministry of Human Resources and Employment) v Weller at [56].[209] There is a great difference between the expectation that a child withoutmeans should not have to pay rent, and the expectation that parents should providecare for their disabled children, no matter how disabled, and into adulthood. Wehave not been able to find an acceptance of a social contract that parents will care fortheir disabled children through their lives in the Canadian decisions.[210] We consider that the draft report of 8 November 2006 of the ODI sent to the Chair of Social Development Committee cogently summarises the distinctionbetween the ordinary care and support of a parent for a child, and the care of a parentfor a disabled person. It states:123This report is not concerned with ‗care and support' that might be consideredordinary, such as where a parent cares for a non-disabled child or a spousecares for a partner while they have the flu. Rather it is concerned with careand support that is extraordinary. This care and support is identified as‗services', that are:Unusual in nature, as in the case of someone with high ‗medical'support needs, such as naso-gastric feeding or who presents withself-injurious or violent behaviour.Require an unusually high or intense level of support, such as in thecase of someone who needs feeding, or regular or frequentsupervision and/or intervention, or who is heavy and needs to belifted frequently.Continue over an extended period of time, as in the case of someone who will require significant levels of assistance with personal caretasks on an ongoing basis.[211] It is observed later in the draft report that the tasks for which payment for family members might be considered, lie ―outside the bounds of any reasonable‗duty of care' as described.124[212] The lack of any social contract extending to the care of disabled family members is indicated by other aspects of the Ministry policy. The Ministry has been at pains to emphasise that it does not require any family member to look after adisabled person. If the family member is not prepared to do so, then the Ministrywill step in and pay for carers. This can be seen as indicating that there can be noexpectation on family members to look after long term disabled children or family123 At [11].124 At [14].members. This is reflected in the evidence of Ms Davis. She stated that there is anexpectation that in general families would provide a reasonable level of support fortheir disabled family member, but where the child is an adult:The State has no expectation that a parent will continue to care for their adult child, and provides residential and supported independent living service tofacilitate independence. Where the family chooses to stay together as a unit,the State will again look to provide the extra support that the family needs tocare for its own members, but again, does not pay a family wages to lookafter its own.[213] Ms Davis appears to accept the distinction between caring for a disabledchild and caring for an adult disabled child. However, no such distinction isreflected in the Ministry policy, where all family members are not paid in relation toall disabled children no matter how old.[214] The lack of any material justifying the existence of such a contract, thedoubts within the Ministry itself, our own review of the Ministry papers, and suchcase law as is available, lead us to the view that there is no reasonable basis to putthe social contract forward as a justification for the policy. Like the Tribunal, we areunable to accept the submission of the Ministry that there is a social contract whichjustifies the policy of not paying family members of disabled people for care. Weagree with the comments in the draft paper of 8 November 2006 that such a socialcontract as might be said to exist, exists in relation to care by parents for childrenand spouses for partners in ordinary circumstances where there is no severe longterm disability. Where the affected family member has a severe long term disabilityit is not possible to assert that there is a contract or duty of care on parents or familymembers. Therefore, insofar as upholding the social contract is put forward as ajustification for the policy under s 5, we reject it as a valid reason.[215] We will return to the implications of our conclusions about the history andnature of the practice or policy and the social contract later in this judgment.Are the other objectives sufficiently important?[216] We consider that the analysis at this first stage enquiry concerning theimportance of the policy is rather abstract. There is no weighing at this first point ofthe four-stage inquiry of competing objectives and effects. We do not considercounter-veiling arguments, or carry out a balancing exercise. The importance isconsidered on a stand-alone basis. Are the identified objectives in themselvesgenuine concerns and sufficiently important in themselves to warrant a curtailmentof the right to be free from discrimination?[217] The other reasons put forward are achieving equality of outcomes, the need toencourage the independence of disabled persons, the problem of families becomingdependent on Ministry payments, difficulties that may arise in monitoring, thedanger of commercialising relationships, and the need to be fiscally sustainable, areall legitimate objectives of a Ministry that provides payments to those who care fordisabled persons. The purpose of the policy is to preserve (in the sense of avoiddamage to) the family unit, to encourage the independence of disabled persons, toensure proper monitoring, to protect family members from impossible burdens, toprotect them from financial dependency on Ministry payments, and use theMinistry's resources in a fiscally sustainable way.[218] With the exception of the social contract and equality of outcomes, which we consider later,125 the remaining objectives are important and credible. They are considered in detail later in this judgment.126 The review of the history of the development of the policy satisfies us that the concerns are genuine. The endorsement of some of them by the former National President of the National Association of People with Disabilities adds to their credibility. The insertion of Government payments for services provided within family relationships is a matter of legitimate concern, as is effective monitoring. We consider these issues later.127It is entirely legitimate for the Ministry to be concerned about fiscal sustainability, and there is a basis for concerns about increased costs if the policy is revoked.128These concerns all strike us as legitimate and significant concerns in a free and democratic society.125 See [254]–[256].126 See [239]–[280].127 See [262]–[267].128 See [268]–[280].[219] It is certainly arguable that individually each reason, if it stood alone, would not be sufficient, with the possible exception of fiscal sustainability, but if they are taken collectively, the limiting measure can be seen as serving purposes of sufficient importance to justify curtailment of the right to freedom from discrimination. With at least 30,000 disabled persons in New Zealand, these principles and the sustainable administration of funds available for disabled persons are obviously a matter of considerable public importance.[220] In this regard we differ from the Tribunal which concluded that the policy did not serve such a sufficiently important purpose. We would agree that if the sole purpose put forward was the upholding of the social contract, then that would not be enough.129 However, the other legitimate considerations that we have outlined were not considered by the Tribunal. In our view those objectives are, as we have said without any consideration or analysis of the counter-arguments and counter- objectives or any balancing, a sufficiently important purpose.Second s 5 question – Is the limiting measure rationally connected with its purpose?[221] The second step was explained in Hutterian Bretheran130 as follows:To establish a rational connection, the Government ―must show a causalconnection between the infringement and the benefits sought on the basis ofreason or logic. The rational connection is aimed at preventing limits frombeing imposed on rights arbitrarily. The Government must show that it isreasonable to suppose that the limit may further the goal, not that it will doso. (citations omitted)[222] It was stated in Chaulk131 that to be rationally connected means to ―not bearbitrary, unfair or based on irrational considerations. A rational connection isconsidered largely on an abstract threshold basis, without equalitative analysis of thearguments.129 See consideration of the social contract at [203]–[215].130 Alberta v Hutterian Bretheran of Wilson Colony (2009) 2 SCR 567 AT [48].131 R v Chaulk [1990] 3 SCR 1303 at 1136.[223] In Hansen the first and second Oakes criteria were described as thresholdissues, and that they do not normally cause the same difficulties as the two remainingproportionality aspects.132[224] In Oakes it was held that there was no rational connection between a reversalof the onus of proof or presumption of innocence by making the position of anyquantity of a narcotic no matter how minimal, a basis for finding on a presumptivebasis possession for supply. That provision did not pass the rational connection testbecause ―possession of a small or negligible quantity of narcotics does not supportthe inference of trafficking.133 Thus, in Hansen, Blanchard and Tipping JJ whofollowed the Oakes approach had little difficulty in finding a rational connection, asthe objectives (achieving the difficult task of convicting those who deal in narcotics)had a rational connection to the provision in question (reversal of the onus of proofwhen certain quantities of narcotics are found).[225] It was in relation to the third and fourth Oakes grounds where Blanchard and Tipping JJ differed. Blanchard J found that s 6(6) did impair the presumption of innocence as little as possible, and to an extent proportional to the significance of the objective.134 Tipping J on the other hand found the restriction on the onus of proof to be greater and was reasonably necessary135 and not in proportion to the importance of the objective.136 McGrath J also concluded in relation to minimal impairment and proportionality that the Crown had not justified the reversal of the onus.[226] We have already indicated that we do not consider the so-called social contract to be a sufficiently important objective. It follows also that it has no rational connection with the policy. The policy goes further than is necessary to support the family ties of normal families, which do not involve anything like the responsibility and demands of caring for a disabled person. We record also that we find no rational connection between the second Ministry objective, ―achieving132 At [121].133 Oakes at [78].134 At [79]–[82].135 At [129].136 At [138].equality of outcome for disabled persons, and the Ministry's policy. As we explainlater,137 we are not satisfied the Ministry policy has any rational connection with equality of outcomes for disabled persons. They should be able to achieve equality of outcomes without the policy.[227] However, while not expressing any view at this point on whether the policy will achieve the desired outcomes, there is no doubt that there is a rational connection between it and other desired outcomes of the Ministry. Not payingfamily members does have a rational connection to at least some of the Ministry'sobjectives including:Avoiding families financial reliance on income;Developing family relationships without the interference of some family members being paid to care for others;Avoiding the professionalisation and commercialisation of family relationships;Ensuring the delivery and auditing of proper control standards;Avoiding unsustainable care burdens; andMaintaining fiscal sustainability.[228] This is because we are satisfied that paying family members can lead to thosefamily members becoming reliant on payments, and can interfere with and lead tothe commercialisation of family arrangements. It can create auditing difficulties andlead to unsustainable care burdens. In regard to the last factor, we note thatbalancing competing demands for social and economic resources within the contextof limited available funds, by allocating those resources in a manner that optimisesthe benefits and outcomes of a social programme, is a requirement of goodgovernment. There is a rational connection between the objectives and the policy.137 See [254]–[256].The need to pay available services in a way that maximises the benefits to disabledpeople, within a limited budget, is recognised in a number of Canadian cases.138[229] We emphasise again that we find this rational connection on a relativelynarrow basis. Ms Joychild for the respondents criticised the various policy reasonsput forward and presented arguments to show that they were not tenable. We arenot, however, at this stage in the consideration process required to carry out aqualitative examination of the Ministry's justification. That will come in the thirdand fourth steps. At this second stage it is sufficient for us to conclude that there is arational connection between a policy of refusing to pay family members for servicesto disabled persons, and avoiding some of the dangers of paying family membersthat have been identified by the Ministry.[230] Obviously we have not reached this conclusion without some regard for the merits, as if the nature of the discrimination was prejudice, such as race, or the policy reasons were clearly unjustifiable, or the policy itself obviously unconnectedto those policy objectives, then no ―rational connection would be established. However, in this appeal the objectives outlined have sufficient credibility, and the policy a sufficient rational connection as a matter of logic, for the second requirement to be seen as met. We appreciate that in this regard also, we vary in our view from that of the Tribunal.Third s 5 question – Is the restriction to the right to freedom fromdiscrimination no more than is reasonably necessary?The nature of the limiting measure[231] It is at this third stage of the s 5 evaluation that we will consider the nature ofthe discrimination and whether it is based on prejudice, as this must be relevant toassessing whether the restriction on freedom from discrimination is no more than isreasonably necessary. In terms of the prohibited grounds of discrimination in s 21 ofthe HRA, certain types of discrimination will be more difficult to justify than others.138 Wynberg at [137], [139], [143] and [169]; Weller at [64]; and Cameron v Nova Scotia (Attorney- General) (1999) 177 DLR (4th) 611 at p 664, leave to appeal to Supreme Court denied [2001] SCR XIII.Discrimination for instance on the basis of colour or race (s 21(1)(c) or (d)) will be most difficult to demonstrably justify. Other types such as age or family status maybe easier to justify. Thus in relation to the right to freedom from discrimination, thenature of the discrimination is relevant for s 5 purposes. As Blanchard J observed inHansen:139As will be seen, any limitation on a guaranteed right should be accepted as demonstrably justified only after the Court has worked through a careful process. In the case of some rights, no limitation could be justified. The overarching rights not to be tortured or tried unfairly, for example, can have no meaningful existence as anything less than absolute protections. By contrast, within the contextually defined concept of fair trial sit some―subsidiary rights And no one would dispute that many of the freedomsenumerated in Part 2, for example freedom of expression, are in practice routinely limited to a greater or lesser extent by other concerns, both within and external to the Bill of Rights, which are demonstrably justified in a free and democratic society.[232] Blanchard J was referring here to guaranteed rights different from the right to freedom of discrimination. However, it can be observed that there will be certainacts of discrimination where it will be most difficult to justify a limitation, and otherswhere it will be much easier to do so. Thus some qualitative analysis of a right mustbe undertaken at the outset.[233] We have already recognised that governments must make distinctionsbetween people if they are to govern effectively.140 Governments must be free totarget social programmes so that those whom they consider should benefit from themdo so, and delineate boundaries between those who will benefit and those who willnot.[234] Also we accept the submission of Ms Coleman for the Ministry (made in thecontext of whether there was s 19 discrimination) that in evaluating the distinctionmade, it is necessary to consider the context. McLachlin CJ in Gosselin v Quebec141illustrated this by reference to a ―men only sign which she observed had verydifferent meanings depending on whether it was on a bathroom or a courtroom door.139 At [65].140 See [76].141 Gosselin v Quebec [2002] 4 SCR 429 at [24].[235] In Law v Canada142 the plaintiff was a surviving spouse under the age of 35who was denied a pension. It was argued that this constituted discrimination ongrounds of age. The Supreme Court determined under s 15 of the Charter (theequivalent of our s 19) that although this clearly disadvantaged young people it didnot have the discriminatory impact because younger adults are not an historicallydisadvantaged group. The distinction was not based on a stereotype.[236] In the Alberta Court of Appeal case of Alberta (Ministry of Human Resources and Employment) v Weller143 the Court observed:144Family status has, on occasion, been the cause of pre-existing disadvantage, for example, illegitimate children and single mothers historically havesuffered discrimination in some instances. However, in this case, the familystatus is merely that of being in a parent and child relationship. Being in aparent and child relationship in general has not been subject to historicpatterns of discrimination or prejudicial views.[237] Also we note that in Newfoundland v Newfoundland145 the Court was not, in the absence of evidence, prepared to find that parents of adult disabled children werean historically disadvantaged group. As a result the claim from a father of a disabledadult son that his employer should not relocate him because it meant that he couldnot provide support to his disabled son at university failed.[238] We consider that these comments and decisions are apposite to New Zealand.Family status does not have the same association with historical disadvantage andmarginalisation as some other grounds of discrimination such as colour or race. Inparticular, there is no documented history of disadvantage or prejudice to the parentsof disabled children. Further, we have no difficulty in concluding that the policydoes not have as its genesis any historic hostility or social prejudice against therelatives of disabled persons. It is not a capricious policy. Rather, the developmentof the policy was based on a variety of concerns including the nature of the ―socialcontract concerns about the affects on the family, monitoring and economicconsiderations. This is relevant in assessing whether the restriction is no more thanis reasonably necessary.142 Law v Canada [1999] 1 SCR 497.143 See [101] above.144 At [54].145 Newfoundland v Newfoundland (1995) 127 DLR (4th ed) 694 at [65].The balancing exercise[239] It is at this step, and the fourth step, that the balancing exercise takes place.We have concluded that there is a breach of s 19 but that the policy serves a purposeof sufficient importance to justify a curtailment and is rationally connected to thepurpose. But this does no more than acknowledge the importance and rationality ofthe Ministry objectives. Does the policy involve the minimum impairment possible?And the closely linked fourth step, is it in proportion to the importance of theobjectives? Here it is necessary to refer back to the history of the development ofthe policy, its nature and rationale. In the absence of any historic prejudice andgiven the efforts made to formulate a policy, we defer to the expertise in theMinistry. But we note that within the Ministry there is debate and no obviousconsensus in the various reports about the policy. It has not been endorsed atCabinet or even ministerial level. It has not been clearly articulated, and is notapplied consistently. There is less deference, therefore, than there would be to anAct of Parliament or regulation, or a policy unambiguously endorsed by Cabinet orthe Minister, or indeed, any consistently applied and clearly formulated policy.[240] In Oakes this aspect was expressed by saying that the party seeking to justifythe act or policy must ―impair the right or freedom in question as ‗little as possible'.Tipping J expressed it as being limiting the right of freedom ―no more than isreasonably necessary for sufficient achievement of its purpose. Tipping Jconsidered the more direct words in Oakes as unreasonably circumscribingParliament's discretion.146[241] In making the assessment of whether there is minimal impairment of the rightto freedom from discrimination, it is necessary to return to the terms of the policyand the objectives. As has been observed,147 the policy has not been defined withprecision, and has not been endorsed in any formal and final way by Cabinet or theMinistry. Exceptions have been allowed and there appears to be debate within theMinistry as to whether it is the right policy, and whether in fact it would be better forfamily members to be paid.146 Hansen at [126].147 At [187]–[197].[242] We will now proceed to examine the reasons put forward for the policy, todetermine whether that response is no more than is reasonably necessary to achievethe objectives. We will go through the Ministry's nine objectives.148 We havealready decided that the first ―social contract is not a valid objective,149 but that theother objectives are legitimate concerns.[243] Before doing so it is necessary to consider the relevance of the ACCexperience, where contract payments are made to family members who care fordisabled persons. That ACC experience is relied on by the respondents to show thatthe Ministry policy is more than is reasonably necessary and disproportionate.Accident Compensation benefits for disabled persons[244] The Tribunal considered the ACC policies150 and noted that over half of theACC's home support services were provided by relatives who were contracted bythe ACC.151 It was noted that the Ministry and the ACC had recently met to producea combined service specification concerning the eligibility for and the delivery ofhome care. No distinction was made on that occasion, between accidental or non-accidental causes.152 The Tribunal noted feedback from ACC staff comparingoutcomes between contracted and non-contracted (family members and informalcarers) in health care. The indications were that there was no discernible differencein quality and rehabilitation outcomes between ACC and the Ministry.153[245] Although no ACC witnesses were called by either side, there was aconsiderable body of evidence before the Tribunal about the conduct of the ACC. Inan ACC's broad issues paper of 21 September 2007 it was recorded that in relationto contracted providers and informal or family caregivers: 154Participants unanimously agreed that there is no discernible difference in quality and rehabilitation outcomes between these two approaches topurchasing home support services. All participants identified that contracted148 See [254]–[280].149 See [228].150 At [93]–[103].151 At [93].152 At [94].153 At [96].154 Ibid.and non-contracted services are complementary and essential to the smooth functioning of the system.[246] The ACC paper also found no conclusive evidence of differences in services,quality or employment outcomes from using contracted or non-contracted services.[247] Ms Coleman for the Ministry pointed out that the joint service specificationdeveloped by the Ministry of Health and ACC applies only to contracted providers.We accept her criticism that the Tribunal's reliance on joint service specifications tosupport its conclusion regarding paying family members may have therefore beenmisplaced or at least too great. We also accept that there must be caution inequating non-contracted providers with family members, as non-contracted providersunder the ACC are either individual disabled persons themselves or their agent whotake responsibility for employing the support workers. She also points out that theevidence shows the ACC experience was not meeting many of the Ministry's keyobjectives for its policy. We accept that the ACC policy is by no means a completesuccess.[248] The Ministry argued that the ACC operates under a different legal framework which is in turn underpinned by a different social contract. We accept that ACC isbased on a compensation model aimed at restoring the position to that whichpertained prior to the injury, so is aimed to restore the pre-accident position. This isa different conceptual basis to that which drives the Ministry's policies to assistdisabled persons. We also accept that ACC payments may tend to be more shortterm than disabled persons.[249] The Ministry relied on the Court of Appeal decision in Trevethick v Ministryof Health.155 In that case, Ms Trevethick complained that the Ministry of Health'sscheme for providing disability support services was not as generous as thatprovided by ACC and therefore she was being discriminated against by reason of thecause of her disability. The Court of Appeal held that Ms Trevethick'sdiscrimination claim was rightly struck out because even if she could establish thather exclusion from ACC by reason of her disability amounted to prima facie155 Trevethick v Ministry of Health [2008] NZCA 397 and [2009] NZAR 18.discrimination, it was clearly justified in terms of s 5 of the NZBORA156 and based its conclusion on the history and philosophy of the ACC scheme that although thepolicy choice might give rise to anomalies, it constituted a justified limit on rights interms of s 5.[250] Trevethick is of limited assistance to the issues in this case. The questionthere was really one of statutory interpretation; whether discrimination on the basisof the cause of disability fell under s 21 of the HRA. The Court held that it did not.The issue here is not about discrimination based on the cause of the disability, butdiscrimination based on family status. There is no doubt about the cause.[251] We accept, nevertheless, that this decision demonstrates the difference inhistory and philosophy of the ACC scheme and the Ministry's policy. We do not,however, agree that the fact that the ACC is paying family members for the care ofdisabled persons can be discounted as irrelevant. It is a policy that has now been inexistence for a number of years. Parliament has not seen fit to change it. The factthat under ACC family members of disabled persons can receive contract payment isin a general sense inconsistent with the Ministry's claim about the ambit of the socialcontract. If there was such a social contract it could be expected that it would figuresomewhere in the debate about ACC payments. It does not appear to do so.[252] More importantly, the ACC policy and practice of contracting with familymembers shows that it is possible to run and monitor a contract system whereby suchmembers care for disabled persons. It tends to show that the Ministry's objectives assummarised by them157 can be managed. This is relevant in assessing whether theright to freedom from discrimination is impaired no more than is reasonablynecessary and will be referred to.[253] The fact that there is uncertainty in the ambit of the policy, a lack ofendorsement at the highest level, and doubts within the Ministry, would all tend toindicate that a rigid policy of not permitting any family members to apply is morethan is required. There are strong countervailing arguments put forward by the156 At [18].157 At [201].plaintiffs as to why the policy is necessary, and why the fears that the Ministry has about the policy are unfounded or exaggerated. We will, at this stage, briefly consider and evaluate the substantive points made in relation to the policy by the parties. Having considered the social contract, we now turn to the Ministry's otherobjectives.Objective two – promoting equality of outcomes[254] The Ministry submitted that the present policy works by the NASC processassessing what gaps disabled people have and then allocating external services tomeet those gaps. The Ministry submitted that by recognising that the level of naturalsupport available differs between payments, the NASC system is able to focus onachieving equality of outcomes for disabled people. It submitted that services areonly allocated where parents, spouses and resident family members have alreadyindicated as part of that process that they are either unwilling or unable to providethe care required.[255] This submission again involves the circular logic that the policy is designed to fill the gaps in family provided care, which rests in turn on the validity of the concept of the social contract. We have rejected that as a valid concept. We do not consider that there is any basis for the proposition that the policy is necessary to promote equality of outcomes. As a matter of fact, the parent respondents are not unwilling or unable to provide the care provided. They are well able to do so, as the evidence shows. They just want to get paid.[256] The ACC experience does not indicate any difference in outcomes, whether caregivers are family members or outside contracted parties. We are not satisfied that it has been shown that the outcome of revoking the policy and contracting family members will be any worse than designing a policy where they can be paid if certain criteria are met. While we do not go as far as concluding, as the Tribunal did,158 that there is the potential for better outcomes for family provided care where this is subject to the NASC process, we accept that there is nothing to suggest a difference in outcomes.158 At [225](c).Objective three – to encourage the independence of disabled persons[257] The Tribunal noted that there was no research presented to it which supportedthe proposition that disabled persons could be discouraged from becomingindependent if family members cared for them.159 We agree that the personal casehistories that were presented to the Tribunal would tend to indicate the contrary. Werecognise, however, that rationally it could be the case that on occasions the presenceof family members as caregivers could discourage disabled persons from becomingindependent. However, if there is any such risk, we would expect it to be able to bemitigated by the appropriate training of family members and rigorous monitoring.[258] We note that in the 8 November 2006 draft report of ODI to the CabinetSocial Development Committee, it was not accepted that the payment of familycaregivers might serve as an incentive to keep the disabled person dependent in orderto attract the wage. This was considered to be rare and it could be mitigated byregular support needs reviews, the establishment of support facilitators and circles ofsupport and the use of an independent disability advocate. It was also observed thatthe risk of a client capture was no greater within a family than it is with an externalservice provider, and that caregiver payments produce no greater disincentive toenter the full time paid workforce and become financially independent than existswith any other part time employment.[259] Our assessment of the evidence and the ACC experience is that withappropriate training and monitoring this objective can be met without the applicationof the discriminatory policy. Its application is not reasonably necessary to meet thisobjective.Objective four – avoiding the risk that families will become financially reliant on theincome[260] There is some support for this concern, observed in the ACC experience andreferred to by the Tribunal.160 However, we see no reason why this risk could not be159 At [225](d).160 At [225](e).met by a careful initial assessment of those family members with whom contracts aremade, training, and then ongoing support and monitoring. The policy is notreasonably necessary to meet this objective.Objective five – support for the development of family relationships in the same wayas they develop for non-disabled people[261] We are far from convinced that this is a major concern. The Tribunal did notsee it as a rational or convincing link.161 Any such concern should be able to met bya careful assessment of family members with whom contracts are entered, by initialtraining, and by ongoing monitoring. It is not a reason for a blanket discriminatorypolicy.Objective six – to avoid professionalising or commercialising family relationships[262] This is closely aligned to the previous concern. It seems extreme to assumethat where a family member is paid, there is a professionalisation orcommercialisation of family relationships. There is no reason why a familyrelationship cannot survive payments to a family member, as is shown by theexample of the sixth respondent Mr Robinson. He was paid for a period and hisrelationship with Johnny and Marita appears to be unaffected.[263] In any event, again a proper selection process, training, and monitoringshould control any problems in this area.Objective seven – to ensure that the delivery and quality of publicly funded services can be monitored[264] The Tribunal noted that the Ministry of Health and the ACC had plans to extend and develop their current auditing and monitoring processes.162 Given the ACC experience, and comments within the Ministry itself about the ability to audit,we do not see this issue as insurmountable. Indeed, we see a process of proper initialinterviewing and vetting of applicants, then of training, then of careful and sustained161 At [225](f).162 At [225](h).monitoring, as an answer to most of the Ministry's concerns about the consequencesof making payments to family members.[265] We have accepted the Ministry has a legitimate concern to ensure that qualitystandards are met and to properly monitor contractors. There is force in Ms King'sconcern about the difficulties paying family members would present to qualityassurance and evaluation, and the fact that disabled persons might find it difficult tocriticise family members, and feel pressure not to report inadequate care or abuse.As we have already indicated, it is difficult to see why the Ministry could not make ita term and condition of any payment that carers had to agree to be trained andaudited on a professional basis. While it must be the case that when care is beingprovided by non-family members existing family members can provide something ofa check and balance to ensure standards are maintained, there seems to be no reasonwhy adequate and independent audit arrangements could not adequately monitor theservices provided by family members. Most of the respondents indicated awillingness to be audited if that was a requirement. Dr Mary Butler, a healthprofessional called by the respondents, stated:Most families caring for someone with a serious disability with high supportmeans, appreciate accountability in a way unimaginable for the professionalbecause they have to bear the full consequences of any breach of care.[266] Ms Coleman emphasised the difficulty of effective monitoring and urgeddeference to the Ministry's assessment. However, we are unable to discern in theMinistry papers any formal decision that effective monitoring is not possible. Noreal effort appears to have been put into devising a draft selection or monitoringpolicy document, even on a discussion basis only.[267] There is no indication that adequate monitoring is seen as an insuperablehurdle in relation to the ACC policy. There is in relation to ACC a system ofsafeguards where disabled persons or concerned non-resident family members canseek assistance. Part of any audit policy could be to ensure that families do notbecome financially reliant on income and to thoroughly investigate the financialcircumstances of the family before agreeing to payment. It could be a condition ofthe grant of a payment that certain family members continue to work. There couldbe strategies and counselling put in place to ensure that family relationships are notdamaged by payment arrangements. There is no reason why family members, if they were paid, should end up carrying more unsustainable care burdens and being more socially isolated than family members who provide these services without pay presently sustain. Indeed, with proper monitoring there is no reason why the care burden should be unsustainable by family members. It could be a requirement of payment that certain breaks be taken. We do not of course presume to dictate how any selection and audit policy should work, but we are entirely unpersuaded that adequate policies cannot be devised.Objective eight – to be fiscally sustainable[268] It is the general submission of the Ministry that there would be anunacceptable fiscal impact if a policy was not in existence. The Ministry's expertwas Mr Jean-Pierie de Raad. He is the chief executive of the New Zealand Instituteof Economic Research. He summarised the costs of an estimated change at beingbetween $17 million and $593 million over the four services. The figures weregiven as ranges as he stated that it was impossible to predict with accuracy what theresponse of disabled persons and their families would be to a change in policy.[269] He noted first, that a portion of disabled persons who receive disabilitysupport services provided by non-family members will choose to have their servicesprovided instead by family. This would theoretically not cost the Ministry any more.There might even be a saving as the payment for services for family members mightbe lower than that for contracted providers.[270] Secondly, a portion of disabled persons living in the community who receivedisability support from services but also from family members might choose toreceive their support thereafter from paid family members, increasing demand forpaid support.[271] Thirdly, a portion of disabled persons with severe disabilities who receive noservice from the Ministry could choose to have their immediate family paid. This isan area of potential and significant cost estimated by Mr de Raad as involvingincreased costs from $10.4 million, assuming a 10 percent switch, to $258.1 million,assuming a 90 percent switch. A portion of those disabled persons receiving onlyminimal services could seek funding for unpaid care.[272] Finally, a number of disabled people who currently live in residential care could choose to move back to the family home to be cared for by paid family members. This could involve significant increases in costs. In the unlikely event that 50 percent switched, the increased costs would be $243.3 million.[273] The respondents called Dr Brian Easton, an independent economist. He didnot agree with Mr de Raad's evidence. He thought his upper bounds were too high.His conclusion was that if a sum had to be taken into account by the Tribunal in making its decision, in the absence of further evidence, the amount of $32–$64 million should be taken as the maximum net fiscal cost. However, he observed thatthe ―likely out turn would be less.[274] The Tribunal was critical of the Ministry's financial projections, but believedthat it was likely that there would be some change as a result of the policy changing.163 It was unable to put a precise dollar figure on the change, but considered the potential increment to be at the lower end of the range quoted by Mr de Raad. It observed that there would be a number of strategies available to control the exposure to fiscal implications, and one example would be for the Ministry to permit the payment of a parent or spouse to be treated as an exception. The criteria for approval could include the personal and family circumstances of theapplicant, the carer's qualities and preparedness to be trained and the willingness tobe monitored. Approval could be given on a case by case basis. The level of the approval could be influenced by the budgetary allocation available.164 Another control could be through the individualised funding option with each applicant beingassessed as to the applicant's ability to take up the option and the applicant's abilityto administer the payment obligations. The Tribunal expressed its intuitive view that the financial impact was not likely to be great within the disability sector.165163 At [165].164 At [171].165 At [229].[275] The Ministry submissions were critical of this view expressed by the Tribunal. Ms Coleman put forward the observation of the Alberta Court of Appeal in Weller that it is reasonable to assume that family members will want payment if it is available.166 The Ministry submitted that it would be unfair if policies were invalidated simply because there had not been an exhaustive investigation on the cost of the policy being changed.[276] The Ministry papers reveal that there was far from certainty in the Ministry itself about fiscal consequences. The draft 8 November 2006 policy considered the issue of the cost of a change of policy in some detail. It noted a very real risk that paying family caregivers for services that they have traditionally provided for nothing could result in significant increases in expenditure which would need to be addressed by the injection of additional funding. However, it went on to say that its expectation was that this would not be extensive and could be managed in the same way that increases in demand for any service are currently managed. It noted that a payment regime involving intrusion into privacy, and administrative hurdles, could be a disincentive to applying for payment. It observed that New Zealand could follow the United Kingdom where there is a trend towards individualised budget holding, not dissimilar to the approach used by ACC. A disabled person could choose whom they purchase services from who may or may not be a family member, and this would be an incentive for family members to provide unpaid care. It concluded:46 There is potential financial risk for government in agreeing to therecommendations in this paper. Where budget holding is in placeexpenditure is expected to stay within the agreed budget, and willtherefore be cost neutral. In the case of providers employing orcontracting family caregivers, the financial impact does not changewhere services would have been purchased from someone.However, there is a risk that family members currently providingservices for free will seek to be paid for those services. Ourexpectation is that this will not be extensive, and that it can bemanaged in the same way that increases in demand for any serviceare currently managed.[277] Throughout, we have been cautious about placing too much weight on the views expressed in this withdrawn draft paper. The Ministry did not explain its166 Weller at [64].background, or reveal who was involved in drafting it or withdrawing it. However, as we have indicated, we have found it to contain what appears to be a careful and thoughtful analysis. There is some corroboration for the observations in the paper in other Ministry material. In the paper of 22 July 2004, Treasury officials are recordedas indicating that funding parameters for a change of policy would be in the ―fives of millions category. In the 20 October 2006 report to the Minister for Disability Issues from the Director of the Office for Disability Issues, it was commented that the floodgates argument was genuine, albeit often overstated. Nowhere in the Ministry material that we have read is there any hard conclusion about unsustainable extra costs should the policy be changed.[278] We are of the view that more could have been done to provide some data as to the costs. There is no indication that there has been any endeavour to do a sample survey of disabled persons to see what the take up would be of a new policy. As it is, we are short on hard facts in relation to fiscal impact. We note again the need for deference, but it is to be observed that the Ministry and related departments seem to be uncertain as to the significance of any fiscal impact. In general terms it was for the Ministry to make out its claim of an unsustainable fiscal impact. It was for the Ministry to show that costs of paying family members was a significant and valid reason for the discriminatory policy and that its policy was the minimum response. In this regard, we note the statement in Grismer adopted in R v Hutchinson that a Government department seeking to justify a submission of unsustainability or unduehardship should provide ―scientific evidence167. As was made clear inHutchinson168 ―impressionistic evidence of increased expense will not suffice.[279] If changes were initiated cautiously, with training and monitoring requirements, the take up could be relatively modest. We were left unsatisfied that any change would constitute a major extra drain on Government resources. If it did constitute a major drain on Government resources, the policy could be reviewed again. Doing the best we can, our assessment is that the extra cost is at the bottom of the estimate of Mr de Raad of $17–$593 million. That also was the Tribunal's view.We appreciate of course that this alone would be a significant sum. However, in167 R v Hutchinson (2004) BCHRT 58 at [228].168 At [214].relation to a Government Ministry of the size and significance of the Ministry of Health, some modest extra costs should be able to be accommodated without other groups necessarily having to suffer.[280] At times the Ministry's submissions came close to suggesting that in the faceof a decision by a Government department of fiscal unsustainability, a Court should with proper deference accept that the limitation is justified. However, we think that the Act requires the Tribunal to do more than simply accept an assessment put forward by a defendant. Some extra cost will very often be the consequence of a finding of a breach of s 19 by a Government department. Such a consideration, while entirely relevant, is not conclusive. A Court must endeavour to assess cost against the importance of the right, the importance and rational connection of the objectives and carry out a proportionality exercise recognising the need for the minimum impairment. Cost is only a factor to be considered in the mix.Conclusion on whether the right to freedom from discrimination has been impaired as little as possible[281] We have considered whether there is any material in the available research in overseas jurisdictions on family members caring for disabled persons that provides assistance in assessing a reasonably necessary impairment to the right to freedom from discrimination. In the end we do not have any data of sufficient clarity and detail to be of use.[282] The Ministry's objective of running a sound and principled scheme forpayments for the support of disabled persons that is fiscally sustainable could well be met by a policy where family members can claim and be paid, although only on condition that they must go through an interview process, (where some family members will be rejected as unsuitable) a training regime (which some will not complete), and accept various conditions imposed on them in relation to ongoing training and monitoring (which will not be acceptable to all). They would have to accept that their contracts could be terminated if they failed to meet monitoring standards, in the same way as any other independent contractor. It is our tentative view that the ODI recommendation in the draft 8 November 2006 paper thatcontracted service providers be able to employ or contract with family caregivers, and that guidelines be drafted to ensure the consideration of potential benefits and risks in appropriate employment and contracting procedures, is the way forward.[283] For the reasons we have set out, the Ministry has not satisfied us that the limiting measure has impaired the right of freedom no more than was reasonablynecessary for sufficient achievement of the purpose. The single ―no exceptionsblanket prohibition in our view goes too far and cannot be justified.Fourth s 5 question – is the limit in due proportion to the importance of theobjective?[284] This issue is closely linked to the previous issue. In considering whether the impairment was no more than was reasonably necessary we inevitably entered into what was to an extent a proportionality exercise, evaluating the policy response to the objectives of the Ministry. However, a somewhat different approach is dictated by this last issue. It requires the decider to stand back and make a broad assessment. Is the discrimination in due proportion to the importance to the tenable Ministry objectives as outlined?[285] We are not in any way convinced that the blanket prohibition is a proportionate response to the importance of the objective. The objectives are attainable if the policy is cancelled, and a new policy designed which incorporates those goals without banning family members. The previous analysis is the key.169The blanket prohibition is a disproportionate response to the importance of the objectives. There are more moderate ways to meet them. The ACC has managed to find a way to contract with family members to care for disabled persons. We do not presume to dictate the key features of a policy that does not ban family members from being paid caregivers, but nevertheless the development of criteria which govern paid family care would be a starting point, and those criteria could be based on the legitimate Ministry objectives already discussed.170 A selection process, training, monitoring and the retention by the Ministry of a right to cancel for a169 See third s 5 question [231]–[283].170 See [216]–[220].failure to meet the criteria should assist the Ministry to meet its objectives. Another factor which could be relevant is the extent of the disability. Ms Joychild in her submissions noted the possibility of a policy based on exceptions to a general policy. It may well be that a policy of ―tailored exceptions of the type proposed inHutchinson171 taking into account the above mentioned factors could be the way forward, but we express no view on that.[286] Various Ministry personnel in the course of the reports that we have read have expressed the view that a blanket prohibition may not necessary. We accept that it is to be expected that there will be conflicting views within an organisation such as the Ministry as it seeks to work out policy. It would be wrong to place too much weight on individual statements made in the course of that debate. However, the doubts that we have already referred to in the papers about a blanket prohibition, and the fact that there is no final paper or policy, and the discussion documents are all drafts, indicate that a blanket prohibition is disproportionate to the importance of the objectives. We have accepted that the objectives are important, but a complete prohibition is not justifiable. This finding of disproportionality is supported by the ACC experience, where family members are allowed to receive payments for care.172Conclusion on s 5[287] The Ministry has failed to demonstrate that the infringement on the right to freedom from discrimination constituted by the policy is justified in a free and democratic society.[288] We return to the New Zealand Disability Strategy of April 2001 which sets out as an objective that individual needs are to be treated flexibly, that disabled persons are at the centre of service delivery, that there should be an improvement in the support and choices for those who support disabled people, and that family whanau and those who support disabled people are given the opportunity to have input into decisions effecting their disabled family member. It seems to us that the rigid policy put forward by the Ministry in these proceedings is at odds with these171 At [209]–[211].172 See discussion at [244]–[253].flexible objectives, focusing as they do on the needs and wishes of disabled persons and their families. It also does not reflect the acknowledgement in the United Nations ratified Convention on the Rights of Persons with Disabilities, that personswith disabilities and family members should receive the necessary ―protection and assistance to enable families to contribute to the full and actual enjoyment of therights of persons with disabilities. To the contrary, it is a policy which in relation to certain services prohibits assistance to family members.[289] We have disagreed with the Tribunal on aspects of its decision. In particular, we disagree with its conclusion that the policy is not sufficiently important to justify curtailment of the right and not rationally connected with its purpose. We have seen the concerns and conclusions it reached in relation to importance and rational connection as more appropriately considered when examining minimum impairment and proportionality. But in broad terms we have not disagreed with any particular aspect of its reasoning. Our difference with the Tribunal is more in categorisation than the analysis of fact.[290] We agree with the Tribunal's conclusion in the end that the policy is againstthe accepted objectives of the New Zealand Disability Strategy. We conclude that the Tribunal was right to conclude that the policy breached the rights of both disabled parents and disabled children to freedom from discrimination on the basis of family status. The breach of that right is not justified under s 5.[291] We have considered whether some modification of the Tribunal's order isrequired. However, the Tribunal has at this stage just made a declaration. It states that the policy is inconsistent with s 19 of the NZBORA in that it limits the right to freedom from discrimination. Ms Joychild argues that it could have added that the Ministry thereby breached s 20L of the HRA, but there has been no cross-appeal and we do not propose modifying the declaration.[292] We do not consider that the Ministry has acted in bad faith. Given that the formulation of a policy and the administration of it are formidable challenges, the Ministry must be given time to prepare a new policy informed, we hope, by the five year process of participating in these proceedings, and the decade of considerationthat has already taken place. Any remedies that the Tribunal ultimately grants should give the Ministry time to finalise a considered, non-discriminatory policy. However, the details of this are a matter for the Tribunal at the next hearing.Result[293] The appeal is dismissed.[294] Costs are reserved for further submissions, if necessary...Asher J..J Grant MNZM..P Davies