Paula Bennett’s damn-the-torpedoes attitude toward the Attorney-General’s advice regarding the Bill of Rights Act — and Idiot/Savant’s observation that this is just the latest bit of policy in breach of that act — has me wondering. What happens if there are torpedoes?

What happens when a widower has his benefit cut by WINZ, having refused a work test which a woman in identical circumstances would not be required to undergo? Surely he has recourse to sue WINZ for that breach. If that’s so, and it seems like in a civil society governed by the rule of law it should be so, the government will surely open themselves up to considerable legal liability by implementing and enforcing this sort of policy (quite apart from the symbolic side of such cases getting hauled through the courts, and so on).

Can some of you lawyerin’ types out there in the internets give me a pub-argument explanation of the issues in this situation?


6 thoughts on “Torpedoes?

  1. I am obviously not a lawyer Lew, but can suggest that the recent past may be some indication of what might happen to a legal challenge on application of work testing. DSW/WINZ/W&I have for many years operated on departmental policy and even branch policy rather than necessarily applying the applicable legislation. They largely relied on public antipathy to welfare recipients to get away with this.

    The last significant legal challenge from beneficiaries was in the 1990s over ‘Special Benefit’ which was a payment for reasonable expenses (e.g. mortgage payments) above the standard level of say a DPB. Beneficiary advocates (eg Auckland & Wellington Peoples Centres) were often dealing with matters relating to special benefit being unreasonably withheld or stopped.
    After proceeding through various the hoops, benefit review and appeal authority, a class type action proceeded through the courts, succeeded, was appealed by the Dept., appeal lost. This all took several years. Yay. And then the legislation was promptly changed, and special benefit eventually removed from the statutes.

    Veteran advocates know that difficulties include their often volunteer status, complainants being at a low point in their lives and not being able to make the time committment over many months and the dept. leaning on people behind the scenes etc etc. So such legal challenges if not in the impossible tray, are certainly in the ‘bloody difficult’ tray. This is not to say it should not be attempted as ‘work testing’ appears a simpler argument than special benefit was.

    Does evidence matter for some anymore though? Not even for some MPs it seems. Nat Simon Bridges on breakfast TV responding to criticism of the ‘kick in the pants’ policy said with maximum smugness and finality “it’s very popular”.

  2. This is all off the top of my head, and I’m sure Graeme, who’s a lot more up to date with BORA issues than me, will correct me, but I’ll have a stab.

    Basically, if the law gets passed as is, those who are discriminated against are sad out of luck. Section 4 of the BORA makes it very clear that the express words of a statute override the rights enumerated in said Bill of Rights. Presumably the wording of this statute are very clear in their discriminatory intent, and that’s basically the end of the story (if it isn’t clear, section 5 and 6 come into play and we get heaps of fun interpretive arguments, but I’m assuming thats not the case).

    There has been some judicial debate as to whether the courts can make formal declarations stating that a particular statute is inconsistent with the Bill of Rights, but that has no effect other than political embarrassment, really. And in this case, the legislation has already effectively been declared inconsistent by the govt’s own chief legal officer.

    So, Lew, essentially, there are no remedies for this discrimination. Just as in the Quilter case in the 90s, there was no remedy for the opposite-sex requirements in the Marriage Act, even though it was clearly discriminatory (Yes, I know the CA said 3 to 2 that it wasn’t discriminatory, but the majority judgments are some of the most embarrassing pieces of crap in recent new zealand legal history). It was left up to a future parliament to (partially) address via the Civil Unions Act

  3. I think Eddie is correct. I don’t know how the welfare changes are being implemented, and whether a law change is required. But I assume one is required, otherwise the Attorney General would not have issued a report on the impact of the changes on the BORA.

    But this is really not my area of expertise.

  4. Beat me to it, Eddie.

    This is not the USA; there is no legal mechanism for challenging laws passed by parliament on the basis of any system of fundamental rights. If Parliament wishes to discriminate, it is able to do so. The Bill of Rights does not prevent this, since Parliament cannot bind its successors.

  5. Thanks all. That looks like a consensus, and all well-explained.

    Someone else has alerted me to the fact that Mai Chen says there’s a right for a victim of this sort of discrimination to apply to the Human Rights Review Tribunal and various things which flow from that if a favourable declaration is made by them. So that’s interesting complexity — since it’s not actually suing the government per se, but it is recourse of a sort. She also reckons “it needs to be sorted out [by the government] because someone will take a test case” (and that she’d be interested in taking one).

    That I wouldn’t mind seeing.


  6. I’d be less sanguine on the chances of success than her (especially given that the govt is stacking the HRRT with right wingers), but then again, she will take on anything that gets her name in the news.

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