Why aren't we talking about family carers?
I've spoken to my contacts within the mainstream media, and none are motivated to run a story on the horrific situation relating to family carers.
Mothers are being told that they will not receive payment to care for their disabled children, unless they are vaccinated. Brothers can't care for their disabled sisters. Wives can't care for their disabled husbands. Family friends can't care for their disabled loved ones. Without being vaccinated.
This isn't about preventing and limiting the risk of the outbreak or spread of COVID-19. These carers won't cease spending time with their loved ones, after they are stripped of their funding.
This is about coercion and punishment.
My heart bleeds. This is where I draw the line, and while we near "D-Day", I am releasing a template letter for family carers (and family nominated carers) to provide to their employers.
TLDR: It is my view that family carers and family nominated carers are only covered under the Vaccinations Order if they are employed for the purposes of assisting the disabled person to work in the community.
Disclosure
I am not an expert at public law. I am not an expert in employment law. This sums it up:
I am a 28-year old advocate, who was thrown into the deep-end in March 2021 when I first gave comment to the media on vaccination-related issues. I have continued to represent in these matters, despite the significant criticism I have received from the people, the profession, and the institutions. I am suffering an autoimmune flare up, and despite being told to reduce my hours, I can't bring myself to step away. The unvaccinated are already significantly underrepresented.
I'm doing my best, but I acknowledge that my best isn't perfect. Sometimes my best isn't enough.
The ironic thing is: I was vaccinated as part of the Group 3 rollout. You could say I am one of the people that mandatory vaccination is designed to protect.
If you want to know my position: I don't want the Government to protect my health. I want the Government to protect my rights. The decisions we make today, will impact the decisions that are made tomorrow.
I can take steps to protect my own health. It is much more difficult to try to protect my rights.
I write these blog posts because I can't represent everyone. I try to give enough information to assist people in representing themselves. However, the more information I provide, the more risk there is to me and my ability to financially support my family. It's a risk I take, because I know what it's like to live on a budget, and have to prioritise your spending. I'm not doing this for the money. I live month-to-month.
Once upon a time, I wouldn't have prioritised legal representation either.
I've since set up a PayPal to allow contributions from those who can afford it, and who want to assist me in continuing to provide these services: much of which is either very low-paid, or completely unpaid.
It's the only way of ensuring access to justice.
If you intend on sending this letter to your employer, please know that if you are a family carer (or family nominated carer) and your employer does want to escalate this to the Employment Relations Authority or Employment Court, with the agreement that "costs lie where they fall", I will represent you pro bono. This means that there will be no cost to you. If I can get support from more senior counsel on a Pro Bono basis, I will also utilise this: not only because you deserve the best representation, but because I need to be mindful of my health. There is also a very good chance you would get non-publication over your identity, which means there is virtually no risk.
Because this is a fairly strict test of statutory interpretation, I should be able to join all claims together: reducing my overall workload.
If you're a legal representative, and you want to tell me that I'm not applying the law correctly, tell me what I can do better ... or do it yourself. It would have been my preference that Unions would have taken a stand. It would have been my preference that senior counsel would have had these matters at the Court by now. I'm doing my best.
In using this letter, you acknowledge that this was done as your own choice, and at your own risk.
The Letter
[DATE]
[EMPLOYER]
[ADDRESS]
[ADDRESS]
[ADDRESS]
Attn: [NAME]
By email: [EMAIL]
COVID-19 Public Health Response (Vaccinations) Order 2021
I am writing to write to you, in good faith, to discuss the applicability of the latest amendments to the COVID-19 Public Health Response (Vaccinations) Order 2021 (“Vaccinations Order”) to my role as a family carer.
I understand that it is your position that the Vaccinations Order now includes all family carers: including those working from their own home, and those working with family members.
In applying the principles of statutory interpretation, I disagree that the latest Vaccinations Order amendment could be interpreted in this way.
New Zealand Bill of Rights Act 1990
The foundation for interpreting the Vaccinations Order rests in the New Zealand Bill of Rights Act 1990.
The New Zealand Bill of Rights Act 1990 applies to acts done by any body in the performance of a public duty conferred or imposed on that body pursuant to law.[1]
The Vaccination Order clearly imposes duty on the company:[2]
A relevant PCBU must not allow an affected person (other than an exempt person) to carry out certain work unless satisfied that person is vaccinated.
This means that the interpretative provisions of the New Zealand Bill of Rights Act 1990 are applicable, and if the Vaccination Order can be given an interpretation which avoids a limitation on the rights and freedoms contained within the New Zealand Bill of Rights Act 1990, that interpretation shall be preferred to any other meaning.[3]
Right to Refuse Medical Treatment
Your interpretation of the Vaccination Order means I have a choice of either being vaccinated or having my employment terminated, which is a sufficient imposition on my right of freedom to refuse medical treatment.
This was recently confirmed by the High Court.[4]
This means that, if a meaning can be provided to the Vaccination Order which is more consistent with the New Zealand Bill of Rights Act 1990, that meaning ought to be preferred.
Right to be Free from Discrimination
Your interpretation of the Vaccination Order may also give rise to a limitation on the right to be free from discrimination.[5] New Zealand courts have consistently held that the Ministry of Health’s former “blanket ban” on making payments to family members for providing care discriminates against people on the basis of their family status.[6]
This means that if the company's interpretation were applied, this would create a legislative clash between the Vaccinations Order and the New Zealand Public Health and Disability Act 2000, which was amended to address the discriminatory “blanket ban.”
The Vaccinations Order is secondary legislation. It cannot be given a meaning which gives it the effect of overriding or displacing primary legislation.
Employment Relations Act 2000
It is my view that the Employment Relations Act 2000 is a valuable interpretative tool available for employers.
The Employment Relations Act 2000 presupposes that termination of employment should only be available, where no other reasonable alternative exists.[7]
This is what is expected of a fair and reasonable employer.
This means that where an interpretation can be provided, which results in my ongoing employment, this interpretation ought to be preferred: because that would be consistent with the principles of the Employment Relations Act 2000.
Purpose of the Vaccinations Order
The meaning of an enactment must be ascertained from its text and in light of its purpose.[8] These are the two main drivers of statutory interpretation.
The purpose of the Vaccinations Order is to:
… to prevent, and limit the risk of, the outbreak or spread of COVID-19 by requiring certain work to be carried out by affected persons who are vaccinated.
If the company's interpretation were to be applied, it would not have the effect of preventing, and limiting the risk of, the outbreak or spread of COVID-19.
This is due to the nature of the relationship between me and the person who I provide cares for.
I am a family carer. I am nominated by the family to provide cares because of my relationship to the person (who is largely dependent on me).
This means that, irrespective of whether I am vaccinated or unvaccinated, and irrespective of whether I provide paid or unpaid cares, I will continue to be a significant part of this person’s life.
This means that your interpretation of the Vaccination Order cannot be correct: it does not aid in the purpose of the Vaccinations Order.
Interpreting “Care and Support Worker”
The text of the Vaccinations Order defines a care and support worker as “a person employed or engaged to provide care and support services within a home or place of residence.” [9]
Firstly, “care and support services” means services that are funded by the Ministry of Health, a DHB, or ACC and provided to a person for the purpose of: [10]
assisting the person to continue to live in the person’s home or in the community (such as personal care and household management services); or
providing mental health and addiction support services, or vocational and disability support services; or
if the person has a disability, assisting the person to work in the community; or
if the person has an injury covered by the Accident Compensation Act 2001, supporting the person’s rehabilitation from the injury or supporting them to achieve and sustain their maximum level of participation in everyday life
The person I provide cares for has a disability. Therefore, the third category is the only applicable category.
If Parliament had intended for all categories to include persons with disabilities, it would have expressly provided for it.
I do not assist the person to work in the community, and therefore, I do not provide "care and support services."
Rather, my role is best described as providing “disability support services,” for the purpose of the New Zealand Public Health and Disability Act 2000. In this Act, “disability support services” include services:[11]
provided to people with disabilities for their care or support or to promote their inclusion and participation in society, and independence; or
provided for purposes related or incidental to the care or support of people with disabilities or to the promotion of the inclusion and participation in society, and independence of such people.
This is different than what is provided in the Vaccinations Order.
It is my view that if Parliament had intended to include family carers of people with disabilities as part of the Vaccinations Order, it would have expressly adopted the language of the New Zealand Public Health and Disability Act 2000.
Secondly, the definition of a home or place of residence is broad: including a residential care facility, retirement village, and rest home.[12]
While I appreciate that the exclusion “not being the home or place of residence of a family member” has been removed, it is my view that this was removed as “family member” was not defined in the Vaccinations Order.
The amendments provided employers with the discretion to consider the nature of the role, without considering the ‘title’ of that relationship. This is especially important, considering the language of the Human Rights Act 1993: which refers to a “relative” rather than “family member.”[13]
Conclusion of Interpretation
The Vaccinations Order cannot be interpreted in a way which defines an “affected person” as including family carers and family nominated carers.
In the first instance, your interpretation is not only inconsistent with the purpose of the Vaccinations Order, but also inconsistent with the purpose of the public health response, as provided in the COVID-19 Public Health Response Act 2020.
Secondly, your interpretation gives rise to a potential limitation of the New Zealand Bill of Rights Act 1990, and creates legislative clashes with the Human Rights Act 1993 and the New Zealand Public Health and Disability Act 2000. The Vaccinations Order is secondary legislation, and we must therefore interpret it in a way which does not override the effect of primary legislation.
Thirdly, if Parliament had intended family carers to be “affected person[s]” for the purposes of the Vaccinations Order, it would have expressly adopted the language provided in the New Zealand Public Health and Disability Act 2000.
Lastly, it is consistent with the purposes of the Employment Relations Act 2000 to adopt an interpretation which provides for my ongoing employment: this would be a fair and reasonable approach.
I am not a “care and support worker”, as provided by the Vaccinations Order.
Next Steps
The Vaccinations Order does not create an express duty to terminate the employment of any employee deemed to be an “affected person.”
This means that, if you continue to consider I am an affected person, the obligations of good faith apply; particularly the obligation to be active and constructive in resolving the employment relationship problem. This is untested law, and the most constructive method of resolving the problem would be to escalate the matter to the Employment Relations Authority or the Employment Court. It would be most equitable that the parties agree that costs lie where they fall, to allow this process to occur in both parties’ interests.
In the interim, I request that I be provided with a period of paid special leave.
I look forward to receiving your urgent response.
Footnotes
[1] New Zealand Bill of Rights Act 1990, s3 [2] COVID-19 Public Health Response (Vaccinations) Order 2021, clause 8 [3] New Zealand Bill of Rights Act 1990, s6 [4] GF v Minister of COVID-19 Response and ors [2021] NZHC 2526 [5] New Zealand Bill of Rights Act 1990, s19; see Human Rights Act 1993, s21 (family status) [6] For example Ministry of Health v Spencer [2015] NZCA 143; Ministry of Health v Atkinson and ors [2012] NZCA 184 [7] See, for example, Employment Relations Act 2000, ss 3, 4, 103A and 125 [8] Interpretation Act 1999, s5 [9] COVID-19 Public Health Response (Vaccinations) Order 2021, clause 4 [10] COVID-19 Public Health Response (Vaccinations) Order 2021, clause 4 [11] New Zealand Public Health and Disability Act 2000 [12] COVID-19 Public Health Response (Vaccinations) Order 2021, clause 4 [13] Human Rights Act 1993, s2
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