A New Zealand Paradigm

The Canadian Supreme Court has recently ruled that Quebec legislation prohibiting private medical insurance infringed citizens' rights to life and security.


All the judges in the majority (4:3 split decision) ruled that the legislation was arbitrary and therefore contrary to principle of fundamental justice, because it was not rationally related to the objective of protecting the public health system. The judges said that the citizens simply wanted a court order allowing them to take out insurance; not any ruling that the government spend more money nor that the public waiting lists be reduced. The majority went on to explain that the citizens' rights were impinged upon because the government imposed 'exclusivity and then failed to provide public health care of a reasonable standard within a reasonable time'.

In some interesting comment, the minority judges said (amongst other things) that there was no 'constitutional right to spend money' and repeated a warning from an earlier case against the Canadian Charter of Rights and Freedoms becoming an'instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less well advantaged persons'. The minority was also concerned about shifting the design of the health system to the courts and wondered whether it was rhetorical to ask how much health care is reasonable enough.

The decision is controversial in Canada which has interesting 'rights' legislation. And, Canada struggles with its aboriginal issues as much as New Zealand does. Although New Zealand rights legislation does not enable us to challenge arbitrary legislation such as the case here, it is unlawful under the Human Rights Act to discriminate on age or disability.

It is doubtful whether an analagous argument of this nature would occur here. But this case shouldn't go unnoticed in this part of the world.