We Have Seen This Bill Before. In 2013 They Called It Clarity Too

The Disability Support Services Bill extinguishes legal rights, bars the courts from scrutinising Crown funding decisions, and offloads the cost of care onto families.

I watched the same Government do exactly the same thing in 2013, We should not let it go uncontested,

I remember the day clearly. I was working at Parliament as an intern for Mojo Mathers MP.

It was, without question, the darkest day of my time there, and there were a few!

The National Government of the day passed the New Zealand Public Health and Disability Amendment Act 2013, and buried within it was a clause that has stayed with me ever since. It read, in part, that the legislation:

…stops (subject to certain savings) any complaint to the Human Rights Commission and any proceeding in any court if the complaint or proceeding is, in whole or in part, based on an assertion that a person’s right to freedom from discrimination on any of the grounds of marital status, disability, age, or family status (affirmed by section 19 of the New Zealand Bill of Rights Act 1990) has been breached…

At that point, I was still learning the mechanics of how Parliament worked. But I knew was happening to our rights!

Governments have the power to not only grant rights but to take them away. The 2013 Act was doing exactly that — and doing it to some of the most vulnerable people in the country.

What drove that Bill? Its purpose clause was explicit: to keep the funding of support services provided by persons to their family members ‘within sustainable limits’ and to affirm the principle that families generally have primary responsibility for the well-being of their family members.

It was, at its core, a piece of fiscal protection legislation. The disability community’s rights were the price paid for the Crown’s peace of mind.

This week, the current Government introduced the Disability Support Services Bill.

I want to explain why I believe it is the same Bill, in different clothing, thirteen years later — and why I know that to be true not merely as a matter of political instinct, but as a matter of documented fact.

What Treasury Told Me last December

In December 2025, I put a question directly to Treasury about the Crown’s exposure to disability support employment obligations and this is what they told me:

“…Contingent liabilities are disclosed in our monthly financial statements of government. We provide additional detail in the annual financial statements of government and in our fiscal and economic updates. We finalised the contingent liabilities to be published in HYEFU 2025 on 31 October 2025, including ‘Disability Support Services employment obligations’ as an unchanged unquantifiable contingent liability. This was prior to the Supreme Court’s delivery of its judgment, Fleming v Attorney-General, on 9 December. At this stage, we are not in a position to quantify the liability and therefore we cannot provide any further information on the extent or timing of potential quantification. However, we will continue to review whether ‘Disability Support Services employment obligations’ should continue to be a contingent liability as part of our continual assessment of liabilities to the Crown”.

Read that carefully. As of October 2025, Treasury had already classified disability support employment obligations as a contingent liability to the Crown — unquantified but real, and under active review.

The Supreme Court had not yet delivered its judgment. The fiscal anxiety predated the legal ruling.

When the Supreme Court did deliver its judgment in Fleming v Attorney-General and Humphreys v Attorney-General [2025] NZSC 188, it found that the Crown did bear employment obligations toward paid family carers — people like Cecilia Fleming and Tony Humphreys, who had restructured their working lives around caring for disabled family members under Crown-funded arrangements, and who had spent years pursuing recognition of what the law, it turned out, had always owed them.

The Departmental Disclosure Statement for the new Bill tells us that officials estimate the one-off wage liability at over $600 million if half the people in similar circumstances were to file claims.

That number clarifies everything about why this Bill exists and what it is for.

The Crown knew about the liability before the Supreme Court ruled. The Bill is the answer to that liability — not to the needs of disabled people.

Certainty — But for Whom?

There is a particular genre of government legislation that arrives dressed in the language of clarity, stability, and certainty, while quietly doing something quite different underneath. The Disability Support Services Bill belongs to that genre.

Read the Departmental Disclosure Statement and you will find the word certainty used repeatedly. Certainty for disabled people. Certainty for family carers. Certainty for the system. But the certainty this Bill actually delivers is almost entirely one-directional: it provides certainty to the Crown that it will not be held accountable through the courts for decisions about how it funds the care of some of New Zealand’s most vulnerable citizens.

That is not a minor distinction. It is the whole story.

The Bill extinguishes pending claims arising from the Fleming judgment. It bars new claims that relate to decisions or events before the Bill’s introduction. It clarifies, retrospectively, that the Crown was never intended to be an employer of carers — and having made that declaration by Act of Parliament, it limits the ability of anyone to challenge it in court.

The litigation bar applies from the date of introduction rather than commencement, explicitly — and the Disclosure Statement says this plainly — because some claimants may be incentivised to file during the Bill’s passage through the House.

The Crown has pre-emptively closed the courthouse door on people who were in the process of walking toward it.

The Disclosure Statement acknowledges, with what I can only describe as admirable frankness, that the Bill engages the right to freedom from discrimination under section 19 and the right to justice under section 27 of the New Zealand Bill of Rights Act 1990. It also acknowledges that the Bill of Rights Act consistency assessment was still in progress at the time of finalisation.

A Bill that engages fundamental rights protections was therefore introduced to Parliament before anyone had confirmed it was lawful. I find that extraordinary.

Families Are Not a Free Resource

One of the most revealing passages in the Disclosure Statement concerns the role of families.

The Bill provides that, where appropriate, families and whānau have responsibility in the first instance for the well-being of their members. Decisions about disability support should take into account the resources and support available within the family, whānau, and community.

In a different Bill, in a different context, this might read as a genuine acknowledgement of the care that families provide.

In this Bill it reads as a cost-containment mechanism — and the Minimum Wage Act clarification removes any ambiguity.

Care provided by a paid family carer in excess of the hours for which funding is provided is not ‘work’ for Minimum Wage Act purposes.

Family members who care beyond what the Crown chooses to fund are doing so, under this Bill, as a matter of familial obligation rather than employment. The hours simply do not count.

This is the Crown returning to the principle of ‘natural support’ from the 2013 Bill through a different mechanism.

This Bill treats a families love for their disabled family member as a reason to limit what families can claim.

The Disclosure Statement frames this as recognising the expectation that families contribute to care. But those families are, in many cases, providing round-the-clock support that would cost the state many times the funded hours if it were delivered professionally.

The overwhelming majority do so with profound love and without complaint. They do so also at significant personal and economic cost — foregone careers, depleted savings, physical and psychological toll.

A Government that genuinely valued that contribution would seek to recognise and compensate it. This Bill treats it as a reason to limit what those same people can claim.

I worked alongside Mojo Mathers in 2013 when we watched a similar logic applied. Families, then as now, were framed as a first resort rather than a last one. The language has been refined. The intent has not.

With No Disabled MPs on the Select Committee, there Is no proper scrutiny

The Disclosure Statement acknowledges, in its section on consistency with New Zealand’s international obligations, an area of inconsistency with the United Nations Convention on the Rights of Persons with Disabilities: there was limited consultation with persons with disabilities and their representative organisations in developing the Bill. The select committee process, we are told, allows disabled persons and their representatives to provide their views.

That is not good enough — and it is worth being precise about why.

The select committee currently considering this Bill has no disabled members. The people most directly affected by this legislation will be invited to submit to a committee that does not include anyone with direct lived experience of disability and recognised as such by the disability community.

Nothing about us without us is not merely a slogan: it is the foundational principle of the Convention on the Rights of Persons with Disabilities, which New Zealand has ratified, specifically Article 4.3 the duty to closely consult with the representitive organisations of disabled people who come from the disability rights movement, and still hold ‘nothing about us without us as the founding principle of our movement.

Offering the select committee as a substitute for genuine co-design, when that committee’s composition makes meaningful representation impossible, is not a remedy. It is the appearance of one.

New Zealand has demonstrated that co-design with affected communities is achievable. The Whānau Ora model, which this Government has not discarded, shows what happens when communities are genuine partners in designing the systems that govern their lives rather than afterthoughts consulted at the end of a legislative process.

The decision to bypass that model for the Disability Support Services Bill is a political choice. It should be named as one.

Ministerial Discretion Is Not the Same as Accountability

The Bill’s primary mechanism for improving consistency and transparency in disability support decisions is the creation of ministerial programmes — secondary legislation made by the Minister, published for parliamentary scrutiny, and subject to disallowance.

The Disclosure Statement presents this as a significant accountability improvement over the status quo.

It is worth being clear about what this actually means.

The detailed rules governing who is eligible for disability support, what they are eligible for, and on what conditions, will be set by ministerial decision rather than primary legislation.

Parliament can disallow a programme after the fact. But the default position is that the Minister decides, and the Minister decides alone.

For a system the Bill itself describes as operating in a constrained funding environment — which is to say, a system where funding decisions have immediate and serious consequences for real people — concentrating that much discretion in a single minister is not a transparency improvement. Lets be clear about this, it’s a power grab.

The Disclosure Statement notes that ministerial programmes draw on the Social Security Act 2018 experience and that the use of these tools is well-tested in social assistance policy. That may be true of the mechanism.

But it does not follow that it is appropriate to import that mechanism wholesale into disability support, where the decisions are more complex, the stakes for individuals and whānau are frequently higher, and the affected population is less able to advocate effectively without substantial support.

What a Bill That Actually Served Disabled People Should Look Like

None of this is to say that New Zealand’s disability support system does not need legislative reform. It most certainly does.

The existing framework is inconsistent, under-resourced, and — as the Fleming judgment makes clear — built on legal assumptions that have not survived judicial scrutiny.

A legislative response was always going to be necessary.

But there is a version of that response that would centre the rights and interests of disabled people rather than the Crown’s fiscal exposure.

It would begin with genuine co-design, conducted before the Bill is drafted, not during its passage through Parliament.

It would establish primary legislation that sets clear, enforceable eligibility criteria rather than delegating that power to the Minister of the day.

It would provide a fair framework for the recognition and remuneration of family carers — one that does not treat unpaid and underpaid care as a feature of the system rather than a failure of it.

And it would preserve, rather than extinguish, the right of individuals to seek redress through the courts when the system fails them.

The Government has chosen a different path.

It has chosen fiscal protection over rights protection, speed over consultation, and executive discretion over parliamentary accountability. It has chosen to respond to a Supreme Court judgment that found in favour of disabled people and their carers by legislating that finding out of existence.

These are political choices.

They can be contested, and during the select committee process they must be.

I urge every disabled person, every family carer, every advocacy organisation, and every member of the public who believes that the rights of disabled New Zealanders deserve better than this to make a submission.

Attend hearings. Speak publicly. Hold your local MP to account.

In 2013, I sat in Parliament as an intern and watched a Government do this to the disability community, and felt — as many people did — that we had no power to stop it. That is not true.

The select committee process is a genuine opportunity to force change, but only if we use it with the same urgency and organisation that this Bill’s architects used in drafting it.

We have seen this Bill before. We know what it does. We should not let its language go uncontested.