Ministry of Health v Atkinson HC Auckland CIV-2010-404-000287
[2011] NZHC 202
•11 March 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2010-404-000287
UNDER PART 1A HUMAN RIGHTS ACT 1993
BETWEEN MINISTRY OF HEALTH Appellant
ANDPETER ATKINSON (ON BEHALF OF THE ESTATE OF SUSAN ATKINSON & EIGHT OTHERS)
Respondents
Hearing: 7 March 2011
Counsel: M Coleman and R Hoare for Appellant
F Joychild and D Peirse for Respondents
Judgment: 11 March 2011
JUDGMENT OF ASHER J (Leave to appeal)
This judgment was delivered by me on Friday, 11 March 2011 at 2pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Law, PO Box 2858, Wellington 6140
F Joychild, PO Box 47947, Ponsonby, Auckland 1144D Peirse, Human Rights Commission, PO Box 6751, Wellesley Street, Auckland 1141
MINISTRY OF HEALTH V PETER ATKINSON (ON BEHALF OF THE ESTATE OF SUSAN ATKINSON & EIGHT OTHERS) HC AK CIV-2010-404-000287 11 March 2011
Introduction
[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 Atkinson[1] under s 124 of the Human Rights Act 1993. Section 124(1) provides that any party to any proceedings before the High Court under that Act may with the leave of the High Court appeal to the Court of Appeal against any determination of the High Court on a question of law arising in those proceedings.
[1] Ministry of Health v Atkinson HC Auckland CIV-2010-404-287, 17 December 2010.
[2] There are 11 questions of law set out in the amended notice of application for leave to appeal. References to BORA are to the New Zealand Bill of Rights Act
1990. The questions are:
Section 19 BORA
1. Did the Court err in finding that the policy breached s 19 of the New
Zealand Bill of Rights Act 1990 (BORA) by:
1.1Failing to select a comparator that properly takes account of the context in which the claim arises, in particular the nature of the services at issue and the framework in which the policy operates, and therefore wrongly finding that claimant and comparator were in comparable circumstances?
1.2Finding that the assessment of discriminatory impact does not involve a consideration of the purpose of the right, and therefore that the disadvantage arising in this case met the s 19 BORA discriminatory impact requirement?
Section 5 BORA
2. In light of the respondents’ concession that the policy met the “prescribed by law” requirement for s 5 purposes, did the Court err by going 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 on factual findings not supported by the evidence and/or contrary to other factual findings?
4. Did the Court err by placing weight on a withdrawn draft policy document lacking in any governmental or other authority?
5. Did the Court err by requiring of government a standard of proof that was too onerous in its justification of the policy under s 5 BORA?
6. Did the Court err in holding that less deference to government was required throughout the s 5 BORA analysis by virtue of the process under which the policy had been developed and reviewed and the perceived lack of formal endorsement at the Cabinet or Ministerial level?
7. Did the Court err by failing to accord proper deference to the policy choice of government given:
7.1The acknowledged expertise of the Ministry on an issue that involves complex policy choices and the allocation of scarce resources;
7.2 The lack of contrary expert evidence;
7.3 The issue is one on which experts can reasonably differ; and
7.4Less weighty reasons are required to justify discrimination on grounds 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 “minimal impairment” step of the s 5 BORA analysis by:
10.1Failing to consider whether the policy fell within a range of reasonable alternatives open to government;
10.2Finding that the policy was not reasonably necessary because the Ministry could assess, train, counsel, monitor and impose conditions on each individual family caregiver; and
10.3Failing to consider whether its proposed less rights infringing alternative 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 to balance the deleterious consequences of the policy against the importance of its objectives?
I will refer to these as the detailed questions.
[3] The respondents consent to leave being granted in relation to detailed questions 1.2, 6, 7, 9, 10 and 11 accepting they raise questions of law of general or public importance that ought to be submitted to the Court of Appeal.
[4] In a later memorandum the Ministry suggested that the 11 detailed questions could be encapsulated in three more general questions, namely:
(a) Did the Court correctly state and apply the test for a breach of s 19 of the 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 not supported 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 10 specific findings and inferences. As the third detailed question and the third general question 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 associated with 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 with under 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 ...; and
10. The finding that the policy was uncertain in nature ...
Approach
[6] The Ministry has already amended the proposed questions and suggested further changes during the course of oral submissions. The respondents have also changed their position on one of the proposed questions. The developments in the positions of the parties are perfectly understandable. There were numerous issues of fact and law that had to be considered in the course of a lengthy judgment. I have no doubt that the appellant will wish to further refine the questions.
[7] Given this difficulty, I have considered whether it would be appropriate to simply 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”. I consider that in this particular case it would be unhelpful not to state at least general questions of law in the course of the leave judgment. However, the more detailed the questions, the greater the danger of artificial constraints on argument that do not respond to the natural development of submissions, particularly in an appeal involving novel questions of some complexity and importance. I consider it preferable to state those questions of law in broad terms, and to leave the development of argument under the control of the Court of Appeal.
[8] The respondents accept that the first and second general questions are questions of law, but submit that the third general question is not a question of law but rather a question of fact.
[9] I have no doubt that the first two general questions are questions of law. I also record that in my view both legs of the first detailed question are questions of law, 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), I also take the view that detailed questions 2 and 4–11 can all be regarded as questions of law, although it may not be that they all correctly encapsulate the terms of the judgment. 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 the appellant submitted that the findings referred to were not factual findings, and that they could be seen as legal questions. She submitted that they required legal reasoning applied to the interpretation of government policy documents, inferences arising from a review of government policy which required knowledge of how executive government operates, and conclusions based on social science research and the impact of gaps in that research.
[12] Ms Coleman relied on the distinction between legislative facts and adjudicative facts referred to by the Supreme Court in R v Hansen.[2] In that case McGrath J stated in relation to a question of the admissibility of affidavit evidence bearing on policy:
[2] R v Hansen [2007] 3 NZSC 7, [2007] 3 NZLR 1.
[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 be
appropriately tested in court. …
[13] The ability of an appellate Court to interfere with findings of legislative fact was discussed by the Supreme Court of Canada in RJR–MacDonald Inc v Canada.[3]
[3] RJR–MacDonald Inc v Canada [1995] 3 SCR 199.
La Forest J observed:[4]
[4] At [79].
The appellate “non-interference” rule reflects the traditional recognition that a 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 Social Science Save Us? The Problems and Prospects of Social Science Evidence in Constitutional Litigation” in Robert J. Sharpe, ed., Charter Litigation (1987), at p 215. …
However, the privileged position of the trial judge does not extend to the assessment of “social” or “legislative” facts that arise in the law-making process and require the legislature or a court to assess complex social science evidence and to draw general conclusions concerning the effect of legal rules on human behaviour. …
[14] The conclusions in the judgment concerning the social contract and the uncertainty of the policy (points 9 and 10 of the breakdown) could be seen as involving an assessment of social or legislative facts. They were in their nature conclusory. However, the first eight findings challenged in the breakdown, with the possible exception of points 4, 7 and 8, were not conclusory assessments of social or legislative facts. They were in the nature of specific adjudicative findings of fact that are no more than blocks on which the assessment of social or legislative facts rested. The third general question, in its present terms, is not a question of law or an assessment 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 the High Court making factual findings about the actions of government departments. The Court of Appeal may, depending on its conclusions as to the merits or other aspects of the appeal, decide to entertain submissions on specific factual points, but that will be a matter for the Court of Appeal. I am not prepared to refer to the Court of Appeal a question that is not on its face a question of law in terms of s 124(1) and which will require lengthy analysis of many volumes of documents. The hearing in the High Court lasted a full two weeks and a considerable portion of that was spent on analysis of that evidence. To treat a factual challenge as a question of law, or to interpret the notion of social and legislative fact in too expansive a manner, would set the appeal off on a course where evidence that has already been traversed at length over two hearings before courts involving lay members will be examined for a third 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 general question I accept that some of the matters listed in the breakdown can be regarded as questions of law. I have in mind, in particular, the finding that no social contract of the type relied on by the Ministry empirically exists and the finding that the policy was uncertain in nature. These were alternatively dealt with by the Ministry in the
eighth and second detailed questions respectively, and I regard these as falling under the second general question. So too, points 4, 7 and 8 of the breakdown could be seen as falling under the second general question.
[17] With these qualifications I find the third general question is not a question of law.
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 of the 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.
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Asher J
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