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 11 March 2011IN 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: 7 March 2011Counsel: M Coleman and R Hoare for AppellantF Joychild and D Peirse for RespondentsJudgment: 11 March 2011JUDGMENT OF ASHER J(Leave to appeal)This judgment was delivered by me on Friday, 11 March 2011 at 2pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Law, PO Box 2858, Wellington 6140F Joychild, PO Box 47947, Ponsonby, Auckland 1144D Peirse, Human Rights Commission, PO Box 6751, Wellesley Street, Auckland 1141Introduction[1] The Ministry of Health (the Ministry) applies to the Court for leave to appeal the whole of the decision of Ministry of Health v Atkinson1 under s 124 of theHuman Rights Act 1993. Section 124(1) provides that any party to any proceedingsbefore the High Court under that Act may with the leave of the High Court appeal tothe Court of Appeal against any determination of the High Court on a question oflaw arising in those proceedings.[2] There are 11 questions of law set out in the amended notice of application forleave to appeal. References to BORA are to the New Zealand Bill of Rights Act1990. The questions are:Section 19 BORA1. Did the Court err in finding that the policy breached s 19 of the New Zealand Bill of Rights Act 1990 (BORA) by:1.1 Failing to select a comparator that properly takes account of thecontext in which the claim arises, in particular the nature of theservices at issue and the framework in which the policy operates,and therefore wrongly finding that claimant and comparator werein comparable circumstances?1.2 Finding that the assessment of discriminatory impact does notinvolve a consideration of the purpose of the right, and thereforethat the disadvantage arising in this case met the s 19 BORAdiscriminatory impact requirement?Section 5 BORA2. In light of the respondents' concession that the policy met the"prescribed by law" requirement for s 5 purposes, did the Court err bygoing on to find that the policy was not clearly articulated or certain,and to rely on that finding throughout the s 5 BORA analysis?3. Did the Court err by relying throughout the s 5 BORA analysis onfactual findings not supported by the evidence and/or contrary to otherfactual findings?4. Did the Court err by placing weight on a withdrawn draft policydocument lacking in any governmental or other authority?5. Did the Court err by requiring of government a standard of proof thatwas too onerous in its justification of the policy under s 5 BORA?1 Ministry of Health v Atkinson HC Auckland CIV-2010-404-287, 17 December 2010.6. Did the Court err in holding that less deference to government wasrequired throughout the s 5 BORA analysis by virtue of the processunder which the policy had been developed and reviewed and theperceived lack of formal endorsement at the Cabinet or Ministeriallevel?7. Did the Court err by failing to accord proper deference to the policy choice of government given:7.1 The acknowledged expertise of the Ministry on an issue thatinvolves complex policy choices and the allocation of scarceresources;7.2 The lack of contrary expert evidence;7.3 The issue is one on which experts can reasonably differ; and7.4 Less weighty reasons are required to justify discrimination ongrounds of family status?8. Did the Court err in finding that the social contract objective was not a sufficiently important objective for s 5 BORA purposes?9. Did the Court err in finding that the policy was not rationally connected to the equality of outcomes objective?10. Did the Court err in its interpretation and application of the "minimalimpairment" step of the s 5 BORA analysis by:10.1 Failing to consider whether the policy fell within a range ofreasonable alternatives open to government;10.2 Finding that the policy was not reasonably necessary because theMinistry could assess, train, counsel, monitor and imposeconditions on each individual family caregiver; and10.3 Failing to consider whether its proposed less rights infringingalternative would meet each of the Ministry's objectives,including fiscal sustainability, as effectively as the current policy?11. Did the Court err in its interpretation and application of the"proportionate effects" step of the s 5 BORA analysis by failing tobalance the deleterious consequences of the policy against theimportance of its objectives?I will refer to these as the detailed questions.[3] The respondents consent to leave being granted in relation to detailedquestions 1.2, 6, 7, 9, 10 and 11 accepting they raise questions of law of general orpublic importance that ought to be submitted to the Court of Appeal.[4] In a later memorandum the Ministry suggested that the 11 detailed questionscould be encapsulated in three more general questions, namely:(a) Did the Court correctly state and apply the test for a breach of s 19 ofthe BORA?(b) Did the Court misapply the test for s 5 of the BORA?(c) Did the Court rely throughout the s 5 BORA analysis on findings notsupported by the evidence and/or contrary to other factual findings?I will refer to these as the general questions.[5] The Ministry broke down the third detailed question into challenges to 10specific findings and inferences. As the third detailed question and the third generalquestion are in similar terms, I treat the breakdown as equally applicable to the latter.The specific findings and inferences are as follows:1. The finding that the policy has no Cabinet/Ministerial endorsement;2. The finding that there is debate within the Ministry as to the validity of the policy;3. The finding that the Ministry could absorb costs at the lower end of NZIER range without affecting other groups;4. The finding that the ACC experience indicates that the risks associatedwith paying family caregivers are manageable;5. The finding that the Ministry has no policy on exceptions and there is uncertainty as to how and why exceptions occur;6. The finding that Treasury emails corroborate the withdrawn policy document and support the Court's view of the fiscal impact (dealt withunder fourth ground);7. The inference that quality monitoring of family caregivers is possible;8. The inference that paying family caregivers is compatible with the NASC system which is responsible for providing services to meet unmet needs;9. The finding that no social contract of the type relied on by the Ministry empirically exists ...; and10. The finding that the policy was uncertain in nature ...Approach[6] The Ministry has already amended the proposed questions and suggestedfurther changes during the course of oral submissions. The respondents have alsochanged their position on one of the proposed questions. The developments in thepositions of the parties are perfectly understandable. There were numerous issues offact and law that had to be considered in the course of a lengthy judgment. I have nodoubt that the appellant will wish to further refine the questions.[7] Given this difficulty, I have considered whether it would be appropriate tosimply grant leave to appeal, without specifying the questions of law. However,s 124(1) says the appeal is against any determination "on a question of law". Iconsider that in this particular case it would be unhelpful not to state at least generalquestions of law in the course of the leave judgment. However, the more detailed thequestions, the greater the danger of artificial constraints on argument that do notrespond to the natural development of submissions, particularly in an appealinvolving novel questions of some complexity and importance. I consider itpreferable to state those questions of law in broad terms, and to leave thedevelopment of argument under the control of the Court of Appeal.[8] The respondents accept that the first and second general questions arequestions of law, but submit that the third general question is not a question of lawbut rather a question of fact.[9] I have no doubt that the first two general questions are questions of law. Ialso record that in my view both legs of the first detailed question are questions oflaw, and in particular that the selection of a comparator is a question of law.[10] As to the detailed questions concerning s 5 of the BORA (questions 2–11), Ialso take the view that detailed questions 2 and 4–11 can all be regarded as questionsof law, although it may not be that they all correctly encapsulate the terms of thejudgment. Whether they do or do not will be a matter for the Court of Appeal.[11] I turn to the third general question, and the breakdown. Ms Coleman for theappellant submitted that the findings referred to were not factual findings, and thatthey could be seen as legal questions. She submitted that they required legalreasoning applied to the interpretation of government policy documents, inferencesarising from a review of government policy which required knowledge of howexecutive government operates, and conclusions based on social science researchand the impact of gaps in that research.[12] Ms Coleman relied on the distinction between legislative facts andadjudicative facts referred to by the Supreme Court in R v Hansen.2 In that caseMcGrath J stated in relation to a question of the admissibility of affidavit evidencebearing on policy:[230] I accept that this Court should be ready to receive material of this kind, without subjecting it to the requirements of the rules of evidence or of admitting new evidence. That will be appropriate when the material goes to the content of law and determination of policy, rather than to determination of facts that are in issue in the particular case. The former class of material covers matters of legislative fact which can usually properly come before the Court through judicial notice. The latter class of material comprises matters of adjudicative fact which must be determined by the Court, usually at trial, and in accordance with rules of evidence. This is the essence of the distinction between legislative facts and adjudicative facts which was made by Professor K C Davis in his seminal analysis of the two classes of material.[231] That is not to say that matters of legislative fact should not beappropriately tested in court. [13] The ability of an appellate Court to interfere with findings of legislative factwas discussed by the Supreme Court of Canada in RJR–MacDonald Inc v Canada.3La Forest J observed:4The appellate "non-interference" rule reflects the traditional recognition thata trial judge is better placed than an appellate court to assess and weigh so-called "adjudicative" facts or, in John Hagan's terms, "who did what, where, when, how and with what motive or intent"; see John Hagan, "Can SocialScience Save Us? The Problems and Prospects of Social Science Evidence inConstitutional Litigation" in Robert J. Sharpe, ed., Charter Litigation(1987), at p 215. 2 R v Hansen [2007] 3 NZSC 7, [2007] 3 NZLR 1.3 RJR–MacDonald Inc v Canada [1995] 3 SCR 199.4 At [79].However, the privileged position of the trial judge does not extend to theassessment of "social" or "legislative" facts that arise in the law-makingprocess and require the legislature or a court to assess complex socialscience evidence and to draw general conclusions concerning the effect oflegal rules on human behaviour. [14] The conclusions in the judgment concerning the social contract and theuncertainty of the policy (points 9 and 10 of the breakdown) could be seen asinvolving an assessment of social or legislative facts. They were in their natureconclusory. However, the first eight findings challenged in the breakdown, with thepossible exception of points 4, 7 and 8, were not conclusory assessments of social orlegislative facts. They were in the nature of specific adjudicative findings of factthat are no more than blocks on which the assessment of social or legislative factsrested. The third general question, in its present terms, is not a question of law or anassessment of social or legislative facts. It relates to a challenge to specific factual"findings" derived from the documents and evidence.[15] There is nothing unique about the Human Rights Review Tribunal or theHigh Court making factual findings about the actions of government departments.The Court of Appeal may, depending on its conclusions as to the merits or otheraspects of the appeal, decide to entertain submissions on specific factual points, butthat will be a matter for the Court of Appeal. I am not prepared to refer to the Courtof Appeal a question that is not on its face a question of law in terms of s 124(1) andwhich will require lengthy analysis of many volumes of documents. The hearing inthe High Court lasted a full two weeks and a considerable portion of that was spenton analysis of that evidence. To treat a factual challenge as a question of law, or tointerpret the notion of social and legislative fact in too expansive a manner, wouldset the appeal off on a course where evidence that has already been traversed atlength over two hearings before courts involving lay members will be examined for athird time. I do not think that I should commit the Court of Appeal to that course.[16] However, as I have indicated, in declining leave to appeal on the third generalquestion I accept that some of the matters listed in the breakdown can be regarded asquestions of law. I have in mind, in particular, the finding that no social contract ofthe type relied on by the Ministry empirically exists and the finding that the policywas uncertain in nature. These were alternatively dealt with by the Ministry in theeighth and second detailed questions respectively, and I regard these as falling underthe second general question. So too, points 4, 7 and 8 of the breakdown could beseen as falling under the second general question.[17] With these qualifications I find the third general question is not a question oflaw.Result[18] I grant leave to appeal in relation to the following questions of law:(a) Did the Court correctly state and apply the test for a breach of s 19 ofthe BORA?(b) Did the Court misapply the test for s 5 of the BORA?[19] I decline leave to appeal on the third general question, namely:(c) Did the Court rely throughout the s 5 BORA analysis on findings not supported by the evidence and/or contrary to other factual findings?However, in relation to (c), the qualifications set out in [16] of this judgment apply.[20] As with the substantive judgment, costs are reserved...Asher J