Trevethick v. Ministry of Health (Decision No. 2)

[2007] NZHRRT 21
Download Judgment: English
Country: New Zealand
Region: Oceania
Year: 2007
Court: Human Rights Review Tribunal
Health Topics: Disabilities, Health systems and financing
Human Rights: Freedom from discrimination
Tags: Disabled, Handicapped, Health funding, Health regulation, Physically challenged

This case has comes after Decision No. 1 and before the judgment of the High Court.

The Plaintiff challenged the government’s interpretation of the definition of “disability” in s.21(1)(h) of the Human Rights Act (“HRA”). The New Zealand government distributed different levels of funding to people with the same types of disabilities depending on the cause of the disability (e.g. whether the disability was caused by personal injury or disease). Section 21(1)(h) of the Human Rights Act prohibits discrimination on the basis on disability. Trevethick argued that the definition of disability in s.21(1)(h) should be interpreted broadly to encompass not only physical manifestations of disability but also its causes. Under the plaintiff’s interpretation, differentiation in funding for the same physical disabilities based on their causes would violate the anti-discrimination provision in Section 21(1)(h). The Human Rights Commission intervened in the case, agreeing with the plaintiff’s interpretation of s.21(1)(h).

The Court held that the definition of “disability” in s. 21(1)(h) of the HRA does not include causes of disability as a ground on which discrimination is prohibited. The Court indicated that although it agreed with the plaintiff as a policy matter, the definition of “disability” in s.21(1)(h) was exhaustive and did not encompass causes of disability. To include causes of disabilitywould be a de facto amendment of the statute, and in disagreement with the legislature’s intent to create an exhaustive list of grounds.

The Court also reasoned that the employment discrimination section of the Act set forth that it was only unlawful to discriminate on the grounds listed in section 21 of the Act (setting forth the definition of disability), which was additional evidence that section 21 was comprehensive.

Finally, the Court noted that Plaintiff and the Commission also focused on international conventions and treaties, but the Court could only base its decision on legislation in New Zealand.

“The point of the analysis was to demonstrate that in adopting the third of these options [“an exhaustive list of grounds upon which discrimination is prohibited”], Parliament must be taken to have made a deliberate decision to retain for itself, to the exclusion of the Courts and this Tribunal, the role of extending the grounds of unlawful discrimination.” (Para. 27)

“The definition of disability that is contained in the HRA does not include the cause or causes of disability as a ground or as grounds on which discrimination is prohibited. To interpret it as doing so would, as as the Commission accepts, involve reading words into the legislation which simply are not there. We therefore accept the arguments that were put forward for the Crown.” (Para. 34)

“As we have said, we have no doubt that the very general propositions that were put forward by both the plaintiff and the Commission in favour of a broad, purposive interpretation of disability are valid. In another case the argument about how the legislation ought be interpreted might very well be assisted by reference to all of the materials and conventions that were canvassed in argument. But in this case there is no sufficient platform for the debate. The wording of s.21(1)(h) HRA does not support it. We agree with the Crown that any decision to recognise ideas of causation as grounds on which discrimination is prohibited would amount to an amendment to the HRA that is beyond any proper exercise of our functions.” (Para. 35)

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