Disability support isn’t a luxury

There is a term that should make anyone involved in disability support slightly nervous: “unintended consequences”. It usually appears after something has gone horribly wrong.

“Oops! I didn’t mean for that to happen.”

Which brings me to the Committee of the Whole House debate on the Disability Support Services Bill on Thursday, 20 August. One of the more striking moments came when Disability Issues Minister Louise Upston was asked about the possibility of means testing being introduced into disability support in the future.

Her answer was reassuring: she has no intention of introducing it.

Did I believe her?

That isn’t really the question.

Because ministers change. Governments change. Political priorities change.

Laws are much harder to change.

That is the dodgy bit about this Bill.

It creates a framework that allows future Disability Issues Ministers to establish and alter disability support programmes through secondary legislation. The Bill sets out what those programmes can contain, including eligibility and funding criteria.

So, the argument shouldn’t be reduced to whether Louise Upston intends to introduce means testing.

The bigger question is: why should we give future ministers the ability to make significant changes to disability support without those changes necessarily having to come back to Parliament as a new Act?

That isn’t an attack on this Minister.

It is an argument for not relying on the goodwill of any Minister.

On one hand, we have political assurances about what the Government intends to do.

On the other, we have legislation that creates powers that could be exercised by a completely different Government, perhaps years from now.

There is nothing unusual about Parliament delegating some law-making powers to Ministers. Governments do it all the time.

But even Parliament recognises there is a line.

Its own guidance says delegated legislation should generally deal with detail and implementation rather than major policy decisions. It specifically warns against broad, open-ended powers and about using secondary legislation to make significant policy decisions.

There is even a wonderfully dramatic parliamentary term for some of the more extreme examples: “Henry VIII clauses”.

These are provisions that can allow the executive to amend or override legislation through secondary legislation.

Henry VIII was not exactly famous for his commitment to checks and balances. He was famous for solving his problems by having people beheaded. Anne Boleyn was a case in point!   

The point isn’t that the DSS Bill hands Louise Upston a Tudor crown and a sword.

It doesn’t.

The point is that Parliament should be very careful whenever it hands any Minister substantial discretion over something as fundamental as disability support.

Because disability support isn’t a luxury.

It isn’t a Government favour.

For many disabled people, it is what makes employment possible. It makes living independently possible. It makes getting out of bed, showering, communicating, travelling and participating in the community possible.

These are not minor administrative details.

They are people’s lives.

So when the Minister says, “I don’t intend to do that,” my response isn’t “I don’t believe you.”

It is: “I don’t want the law to depend on who the Minister happens to be.”

Because today’s reassurance can become tomorrow’s unintended consequence.

The Minister may (or may not!) have the best intentions in the world.

The next Minister might have different intentions.

And the Minister after that might have a completely different set of priorities and discover that Parliament has already handed them the tools.

This matters.

Not because we should assume the worst of today’s politicians.

But because good legislation shouldn’t require us to assume the best of every politician who comes afterwards.

If Parliament is going to rebuild disability support in legislation, it should build in the strongest possible protections, accountability and disabled people’s involvement.

Otherwise, the unintended consequence of giving Ministers flexibility today could be handing them the unbridled power of Henry VIII tomorrow.

By then, saying “Oops! I didn’t mean for that to happen,” will be far too late. Chop, chop!

Jonny Wilkinson is the CEO of Tiaho Trust Disability A Matter of Perception, a Whangarei based disability advocacy organisation.

This article has been previously published in the Northern Advocate.