Human Rights Issues in the recommendation of the Welfare Working Group [2011] NZHRCSub 5 (1 August 2011)

Last Updated: 26 May 2015

Human Rights Issues in
the Recommendations of
the Welfare Working Group

August 2011

Human Rights Commission InfoLine
0800 496 877 (toll free)
Fax [phone] (attn: InfoLine)
Email [e-mail]
TXT 0210 236 4253
www.hrc.co.nz
Language Line and NZ Sign Language interpreter available
If you have a hearing or speech impairment, you can contact the Commission using the New Zealand Relay Service. NZ Relay is a telecommunications service and all calls are confidential. www.nzrelay.co.nz


Tāmaki Makaurau – Auckland
Level 3, 21 Queen Street
PO Box 6751, Wellesley Street
Tāmaki Makaurau Auckland 1141
Waea Telephone [phone]
Waea Whakāhua Fax [phone]

Te Whanganui ā Tara – Wellington
Level 1 Vector Building, 44-52 The Terrace
PO Box 12411, Thorndon
Te Whanganui ā Tara Wellington 6144
Waea Telephone [phone]
Waea Whakāhua Fax [phone]

Ōtautahi – Christchurch
Level 2 Moeraki Suite, Plan B Building
9 Baigent Way, Middleton
PO Box 1578, Ōtautahi Christchurch 8140
Waea Telephone [phone]
Waea Whakāhua Fax [phone]


ISBN: 978-0-478-35617-5 (Online)

Published August 2011
Auckland, Aotearoa New Zealand


This work is licensed under the Creative Commons Attribution 3.0 New Zealand License. To view a copy of this license, visit http://creativecommons.org/licenses/by/3.0/nz/.

Human Rights Issues in the Recommendations
of the Welfare Working Group

Introduction

On 22 February 2011 the Welfare Working Group (WWG) presented its recommendations to the Government, proposing changes to New Zealand’s welfare system.^[1]

In the attached tables, the Human Rights Commission analyses those recommendations against New Zealand’s international human rights obligations and also for their consistency with domestic legislation. It identifies positive steps recommended by the WWG but also some concerns about the human rights implications of other proposed changes. Below each table are a series of questions drawing out the policy implications of highlighted recommendations.

The Commission has a statutory responsibility to advocate and promote respect for, and an understanding of, human rights in New Zealand society.^[2] The Commission has undertaken this analysis to assist members of the Ministerial Group, government officials, community organisations and others assessing the WWG recommendations.

International human rights standards

The Commission acknowledges the focus by the WWG on some core international human rights standards, namely the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and the Convention on the Rights of the Child (UNCROC), both of which are cited in its final report. However the WWG did not systematically assess its recommendations against the requirements set out in these conventions.^[3]

Nor did the WWG’s final report consider the implications of other international human rights standards that are binding on New Zealand, whether or not particular rights are explicitly incorporated into domestic legislation. These include ensuring that the income received from welfare payments is adequate and that the needs of those most vulnerable, including children and disabled people, are prioritised.

The rights to work and to social security are economic and social rights which this country is formally committed to protect and fulfill. The principal obligation on New Zealand and other countries that have signed relevant United Nations conventions is to ensure that these rights are “progressively realised”. Under these conventions, economic pressures are not considered to be a valid justification for backward or retrogressive measures. Instead, each country is required to demonstrate to the relevant United Nations treaty bodies that it has made every effort to meet these minimum obligations, making “full use of the maximum available resources”.^[4]

The Commission welcomes opportunities for a considered, evidence-based dialogue about the cross-government steps required to improve educational outcomes for children and young people, eliminate child poverty, and increase participation in sustainable employment. This document and the specific questions it asks are intended to be a constructive contribution to these continuing discussions.

Priority areas for action on human rights

The human rights set out in the Universal Declaration of Human Rights are considered to be indivisible, interrelated and interdependent. Strengthening one right helps to advance others. Likewise, diminishing one right effectively weakens other rights.

Last year the Commission conducted its second review of the status of human rights in this country. Human Rights in New Zealand 2010 identified priority areas for action over the next five years. Those most relevant to the WWG Recommendations include:

• ensuring that legislation reflects New Zealand’s obligations under the United Nations Convention on the Rights of the Child, including recognising the best interests of the child
• developing and implementing new pathways to partnership between Tangata Whenua and the Crown
• ensuring an integrated and co-ordinated Government response to implementing the Convention on the Rights of Persons with Disabilities with the full participation of disabled people
• implementing a new framework for equal employment opportunities that addresses access to decent work for disadvantaged groups such as Māori, Pacific youth, and disabled people
• reducing child poverty through a co-ordinated and integrated approach, with specific attention to Māori, Pacific and disabled children and
• reviewing and addressing the adequacy of core benefit rates.

Implications for the WWG’s recommendations

Taking each of these priority issues in turn, the Commission poses the following questions:

Prioritising the best interests of children by making explicit reference to UNCROC obligations:

• How will the best interests of children be safeguarded if a sole parent is expected to look for work when an infant is one year old?
• How will the wellbeing and best interests of children be prioritised if a parent’s or guardian’s benefit is reduced?
• How will the right to social security be protected if a child is denied financial assistance because of the parent’s employment status?
• How is removing the Independent Youth Benefit “reasonable and justifiable”?
• What other ways of improving education, training or employment outcomes for marginalised 16 and 17 year olds would not impinge on their fundamental human rights?

Implementing new partnership pathways between Tangata Whenua and the Crown:

• What measurable targets and strategies will be put in place to increase the number of Māori in sustainable employment?
• What monitoring will be in place to measure the disproportionate impact of welfare reforms on Māori and to address any concerns about indirect discrimination? Does this need to be strengthened?

Implementing the Convention on the Rights of Persons with Disabilities:

• What disability support service options will be made available to enable disabled people to move into sustainable paid employment?
• How will work ability assessments help to identify and address disabled people’s support needs?
• What arrangements will be in place to effectively protect the right to “reasonable accommodation”^[5] for a disabled person who is looking for, or returning to, work?

Addressing access to decent work for disadvantaged groups:

• How will “positive outcomes” for those moving off benefits be defined so as to include the right to decent work?
• What incentives and accountability mechanisms will be put in place to ensure contracted providers focus on those most disadvantaged?
• How will access to paid parental leave be improved to maintain parents’, particularly mothers’, attachment to the labour force?
• What steps will be taken to improve the availability and affordability of Early Childhood Education and out-of-school-care, without undermining universal access to these services?

Reviewing and addressing the adequacy of core benefit rates / reducing child poverty:

• In what ways will the proposed welfare reforms improve the adequacy of benefit rates and reduce the incidence of child poverty?

Methodology

The attached tables draw partly on the Human Rights Commission’s two 2010 submissions to the WWG^[6] and apply a human rights approach to the WWG recommendations, particularly:

• compliance with relevant international human rights standards
• freedom from discrimination under the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993 and
• consistency with New Zealand legislation that promotes the right to work, the right to refuse to undergo medical treatment and the right to privacy.

The international human rights conventions discussed in this document are the:

• United Nations Convention on the Rights of the Child (UNCROC)
• International Covenant on Economic, Social and Cultural Rights (ICESCR)
• Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) and
• Convention on the Rights of Persons with Disabilities (CRPD).

In addition, the Commission sets out relevant provisions in the Declaration on the Rights of Indigenous Peoples (DRIP). While these are aspirational, they derive from binding international conventions such as the ICESCR, which New Zealand has ratified.

The left hand column of the tables contains the relevant international or domestic obligations and, in some cases, includes guidance from the relevant treaty body. For example, in January 2011 the UN Committee on the Rights of the Child considered New Zealand’s periodic report on compliance with UNCROC. The Committee’s February 2011 Concluding Observations and recommendations to the New Zealand government delegation are pertinent to policy debates around the WWG’s recommendations.

The centre column highlights WWG recommendations which are positive steps towards the progressive realisation of international human rights obligations.^[7] These include specific references to UNCROC and CRPD.

The third column in the attached tables lists the Commission’s concerns about inconsistencies with international human rights obligations, including those directly reflected in domestic legislation. In some cases these may amount to explicit breaches of those standards. A number of other recommendations constitute prima facie discrimination and the government could be challenged by the relevant treaty body to demonstrate that those proposals are justifiable (for example Recommendations 8, 20(c)(ii) and 27).

All references to specific WWG recommendations are italicised and speech marks are used to indicate direct quotes. Footnotes provide citations and links to supporting documentation, particularly the relevant international human rights standards. The Commission would be happy to provide any further background information that may be required.

A. Consistency with International Human Rights Obligations

Rights of children - under the UN Convention on the Rights of the Child (UNCROC) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)

International Obligations	Positive Steps	Concerns
In all actions concerning children, the best interests of the child shall be a primary consideration – Article 3(1) UNCROC “Take all necessary measures to provide appropriate support to allow disadvantaged families and their children to move out of poverty in a sustained way while, at the same time, continuing to provide assistance to those who remain under the poverty line (para 43)” - UN Committee on the Rights of the Child’s recommendations to NZ Feb 2011[8]	Recommendation 26: Identify the likely impact of welfare reform on the well-being of children. Recommendation 2(h): “focus on improved outcomes for children” Both recommendations would be strengthened by adding an explicit reference to Article 3(1) of UNCROC	The WWG has not assessed these recommendations against the best interests of the child: Recommendation 5(b)(i)(a) and (b): sole parents receiving welfare would be required to seek at least 20 hours work per week once their youngest child is three, and 30 hours once this child is six years of age. Recommendation 11(b)(i): a parent receiving a benefit, who has a second or subsequent child, will be expected to look for work once the youngest child reaches 14 weeks old. 14 weeks old has been ruled out by the government. The WWG’s alternative timeframe, once a child is 12 months old, is too inflexible to ensure the best interests of the child.
Qualifying conditions for benefits must be reasonable, proportionate and transparent. The withdrawal, reduction or suspension of benefits should be circumscribed, based on grounds that are reasonable, subject to due process, and provided for in national law. - Committee on Economic, Social and Cultural Rights[9]		Recommendation 9(b): proposes a parent’s or guardian’s welfare assistance can be partially or fully cut, as a sanction for not meeting work-focused obligations. Recommendation 9(b)(iii) proposes “additional monitoring . . . and requirements to ensure the interests of children are safeguarded”. No more details are provided in the full report. Given the profound impact of sanctions on children of beneficiaries, the welfare and best interests of children ought to be the paramount consideration in any sanctions framework.

Questions:

• How will the best interests of children be safeguarded if a sole parent is expected to look for work when an infant is one year old?
• How will the wellbeing and best interests of children be prioritised if a parent’s or guardian’s benefit is reduced?

Rights of children continued

International Obligations	Positive Steps	Concerns
States parties shall recognise for every child the right to benefit from social security . . . taking into account the resources and the circumstances of the child and persons having responsibility for the maintenance of the child . . . – Article 26 UNCROC		Recommendation 11(b)(ii): “Government should consider whether further financial disincentives are necessary, including that parents not qualify for any additional financial assistance through the welfare system for any additional children born while in receipt of welfare, other than access to emergency assistance”. This would breach a child’s right to social security and be prima facie discrimination based on the parent’s employment status.
All persons should be covered by the social security system, especially individuals belonging to the most disadvantaged and marginalised groups, without discrimination on any of the grounds prohibited under article 2, paragraph 2, of the Covenant. – Committee on Economic, Social and Cultural Rights.[10] The Covenant thus prohibits any discrimination, whether in law or in fact, whether direct or indirect, on the grounds of . . . age . . . The key underlying principle is that any distinction on prohibited grounds must be reasonable and justified in the circumstances. – Committee on Economic, Social and Cultural Rights[11]		Recommendation 20(c)(ii): The WWG proposes replacing existing benefits, including the Independent Youth Benefit, with a single Jobseeker Support payment. This will “not be available to 16 and 17 year olds. Those 16 or 17 year olds currently eligible for a benefit should instead be supported through assistance paid to their parents or a responsible adult”. The only exception is if a sole parent has demonstrated that they can manage their finances and support their children. Removing the Independent Youth Benefit is prima facie age discrimination. It also impinges on the right to social security for vulnerable young people who do not have parental support, including those who have left an abusive family environment. This is incompatible with proposals to increase the level of support available to young people transitioning from State care.[12]

Questions:

• How will the right to social security be protected if a child is denied financial assistance because of the parent’s employment status?
• How is removing the Independent Youth Benefit “reasonable and justifiable”?
• What other ways of improving education, training or employment outcomes for marginalised 16 and 17 year olds would not impinge on their fundamental human rights?

Rights of women - under the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW)

International Obligations	Positive Steps	Concerns
“The Committee is concerned that the rates of [labour force] participation for mothers of young children and single mothers remain below the [OECD] average” The Committee requested that NZ: “ . . . . analyse and assess the barriers that rural and Māori, Pacific and minority women face in accessing childcare and parental leave . . . amend eligibility criteria to ensure that seasonal and temporary workers are eligible for paid parental leave . . . strengthen parental leave programmes for men”. - UN Committee’s concluding comments in response to NZ’s last CEDAW report, August 2007 “ensure that all children have access to high quality early childhood education and care that, at a minimum, is free for socially disadvantaged families and children”. - UN Committee on the Rights of the Child’s recommendations to NZ, Feb 2011, para 45(a)	Recommendation 5: that work expectations for carers of children be “subject to the Government addressing issues with the availability and affordability of childcare and out-of-school care”. (See also: the right to work and the rights of children)	Recommendation 17: proposes “reprioritising some of the existing Early Childhood Education (ECE) expenditure”. This would be a move away from universal free ECE. The OECD recommends universal access supplemented by particular attention to children requiring special support.[13] This accords with a human rights approach.[14] The WWG report includes no analysis of parental leave provisions. Yet the UN’s CEDAW Committee recommended better access to both childcare and parental leave were needed to support mothers into paid work.[15]

Questions:

• How will access to paid parental leave be improved to maintain parents’, particularly mothers’, attachment to the labour force?
• What steps will be taken to improve the availability and affordability of ECE and out-of-school-care, without undermining universal access to these services?
• How will seasonal and temporary workers’ access to parental leave provisions be improved, to support their participation in paid work?

Rights of women continued

International Obligations	Positive Steps	Concerns
States parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: (e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights - Article 16(1)(e) CEDAW[16] States parties should ensure that measures are taken to prevent coercion in regard to fertility and reproduction . . . - Committee on the Elimination of Discrimination against Women[17] .		Recommendation 11(b): Addressing incentives for parents to have additional children while on welfare: The WWG recommends greater work expectations and consideration of further financial disincentives “where a parent has an additional (second or subsequent) child while receiving assistance from the welfare system (except where they are pregnant at the time of coming into the welfare system” : Both a more stringent work-test and financial disincentives are likely to be regarded as coercive measures undermining parents’ right to freely decide on the number and spacing of their children. Nor can they be justified as in the best interests of the child.[18] (See also: the rights of children and the right to social security).

Question:

• How will the right of sole parents to decide the number and spacing of their children, without coercion, be protected?

Rights of disabled people - under the Convention on the Rights of Persons with Disabilities (CRPD)

International Obligations	Positive Steps	Concerns
. . . persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation and segregation - Article 19 CRPD . . . enable persons with disabilities to attain and maintain maximum independence – Article 26 CRPD	Recommendation 25: support for disabled people with a permanent exemption from work obligations is aligned to the Ministry of Health’s disability support services model.[19] This includes individualised support plans, respect, choice of service user and greater individual control over what services are purchased.	These options for appropriate support services should be available to all disabled people in their interactions with the welfare system, not just those exempted from work obligations. Page 105: the WWG estimates 65,000 of the 85,000 people on the Invalid’s Benefit as at June 2010 would not be given a permanent work exemption and so most would receive less direct financial assistance under the WWG proposals. (See also: right to social security)
. . . . States Parties shall organise, strengthen and extend comprehensive habilitation and rehabilitation services and programmes, particularly in the areas of . . . . employment . . . [that] begin at the earliest possible stage, and are based on the multidisciplinary assessment of individual needs and strengths - Article 26(1) CRPD		Recommendation 6(b): work expectations “for people who are sick or disabled should be based on an assessment of their current and expected future work ability and have tailored expectations for people to prepare for and enter paid work”. Any work capacity assessment processes must be fair, accurate and transparent and reflect the principles in Article 3 of the CRPD.[20] Work ability assessments should also explicitly identify support services that a disabled person can access in order to participate in paid work.

Questions:

• What disability support service options will be made available to enable disabled people to move into sustainable paid employment?
• How will work ability assessments help to identify and address disabled people’s support needs?

Rights of disabled people continued

International Obligations	Positive Steps	Concerns
States parties shall safeguard and promote the realisation of the right to work, including . . . by taking appropriate steps to: . . . promote employment opportunities and career advancement for persons with disabilities . . . as well as assistance in finding, obtaining, maintaining and returning to employment - Article 27(1)(e) CRPD . . . ensure that reasonable accommodation is provided to persons with disabilities in the workplace - Article 27(1)(i) CRPD . . . "Reasonable accommodation" means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms – Article 2 CRPD	Page 115: The report notes that reasonable accommodation is required under Article 27 of the CRPD.	Reasonable accommodation is not reflected in any of the report’s recommendations. Page 63: The report states “the default expectation for people with impairment and illness should be that they are able to work, if cost-effective investment and support is provided”. However a necessary modification or adjustment may not be cost-effective yet still be required as reasonable accommodation, because it does not impose “a disproportionate or undue burden”.

Question:

• What arrangements will be in place to effectively protect the right to reasonable accommodation for a disabled person who is looking for or returning to work?

Rights of Māori - under the Declaration on the Rights of Indigenous Peoples (DRIP) and the International Covenant on Economic Social and Cultural Rights (ICESCR)^[21]

International Obligations	Positive Steps	Concerns
1. Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions, including . . . . employment, vocational training and retraining . . . . and social security. 2. States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous elders, women, youth, children and persons with disabilities. - Article 21 DRIP States parties . . . undertake to guarantee that the[se] rights . . . will be exercised without discrimination of any kind as to race, colour . . . or other status – Article 2(2), ICESCR . . . recognise the right of everyone to social security – Article 9 ICESCR	Recommendation 4: that the Government initiate a formal partnership with Māori leaders, with associated goals and strategies, designed to result in enduring increases in Māori employment.	Recommendation 3: “to improve social and economic outcomes . . . . Government set a target of at least 100,000 fewer working age people receiving welfare by 2021, which would imply the need to reduce the number of Māori on welfare by between a third to a half”. The WWG has not matched benefit reduction targets with targets for “enduring increases in Māori employment”. In addition, a high proportion of those affected by other human rights concerns listed in this document will be Māori. Special measures may be required to protect these rights. (See also: the right to work and the right to social security)

Questions:

• What measurable targets and strategies will be put in place to increase the number of Māori in sustainable employment?
• What monitoring will be in place to measure the disproportionate impact of proposed welfare reforms on Māori and to address any concerns about indirect discrimination? Does this need to be strengthened?

Right to work – under the Universal Declaration of Human Rights (UDHR) and International Covenant on Economic, Social and Cultural Rights (ICESCR)

International Obligations	Positive Steps	Concerns
Everyone has the right to work, to free choice of employment, to just and favourable conditions of employment and to protection against unemployment - Article 23 (1) UDHR Work as specified in article 6 of the Covenant must be decent work[22] – UN Committee on Economic, Social and Cultural Rights, General Comment 18, para 7		Recommendations 3 and 32(b): The report’s target is “at least 100,000 fewer working age people receiving welfare by 2021”. A new agency, Employment and Support NZ, would be accountable for achieving this target. There is no equivalent target set for employment outcomes or criteria stipulating the quality of employment outcomes for people moving off welfare benefits (e.g. sustainable employment rather than short-term or precarious work).
. . . . effective measures to increase the resources allocated to reducing the unemployment rate, in particular among women, the disadvantaged and marginalised, should be taken by States parties – UN CESCR, General Comment 18, para 26		Recommendation 34: “employment services be based on contestable, outcome based contracts . . . designed to financially incentivise contractors to achieve positive outcomes for those with greatest risk of long-term dependency”. 2008 research found that in both Australia and the Netherlands “there is a strong association between incentive-based contracts and ‘parking’, where harder to help participants receive a bare minimum of services”.[23]

Questions:

• How will “positive outcomes” be defined so as to include the right to decent work?
• What incentives and accountability mechanisms will be put in place to ensure contracted providers focus on those most disadvantaged?

Right to social security – under the International Covenant on Economic, Social and Cultural Rights (ICESCR)

International Obligations	Positive Steps	Concerns
. . . . the right of everyone to social security – Article 9 ICESCR Benefits . . . . must be adequate in amount and duration in order that everyone may realise his or her rights to family protection and assistance, an adequate standard of living and adequate access to health care . . . . States parties must also pay full respect to the principle of human dignity . . . . and the principle of non-discrimination. . . . The adequacy criteria should be monitored regularly to ensure that beneficiaries are able to afford the goods and services they require to realise their Covenant rights. – Committee on Economic, Social and Cultural Rights[24]		“Adequacy of income from welfare” was outside the scope of the WWG’s review. This was despite the fact that adequacy of benefits is one of the core components of the right to social security.[25] In Human Rights In NZ 2010 the Commission said “reviewing and addressing the adequacy of core benefit rates” was a priority area for action.[26]
	Recommendation 20(c)(i): replacing existing benefits with a single Jobseeker Support payment “will restructure current rates, but in a manner which retains their total value”. However other comments in the WWG’s report indicate benefit levels will fall for some groups.	Recommendation 20: a lower abatement-free threshold, a higher benefit abatement rate for many beneficiaries, and tighter eligibility criteria for hardship support effectively mean the level of money many beneficiaries will receive will fall. Page 105: The report clarifies that up to 76 per cent of those currently on the Invalids Benefit may receive less direct financial assistance under the WWG proposals. (See also: rights of disabled people)

Question:

• In what ways will the proposed welfare reforms improve the adequacy of core benefit rates and reduce the incidence of child poverty?

B. Consistency with Domestic Legislation

Discrimination based on employment status – under the Human Rights Act (HRA) 1993 and the NZ Bill of Rights Act (NZBoRA) 1990

Domestic legislation	Positive Steps	Concerns
Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993 – section 19(1) NZBoRA For the purpose of this Act, the prohibited grounds of discrimination are: . . . (k) employment status, which means (i) being unemployed; or (ii) being a recipient of a benefit under the Social Security Act 1964 or an entitlement under the Injury Prevention, Rehabilitation and Compensation Act 2001 – section 21(1)(k) HRA		Recommendation 27: parents receiving a welfare payment must ensure their children complete the 12 free Wellchild / Tamariki Ora health checks, participate in approved early childhood education and attend school when legally required. Otherwise the parent’s benefit would be managed by a third-party or, for example, be provided as a payment card. While each of these requirements has positive impacts on a child’s well-being, other parents who are not on a welfare benefit do not face these sanctions.[27] Therefore the sanctions may amount to discrimination based on employment status and may further marginalise vulnerable children.[28] The responsibility would rest with the government to demonstrate that this prima facie discrimination is justifiable under section 5 of the NZBoRA. Specifically, the government would need to show there is a rational and proportionate connection between each provision and its objectives. Recommendation 24: proposes a public campaign aimed at reducing tolerance of benefit fraud and abuse. Any such campaign should not stereotype beneficiaries as criminals, based on the actions of a small minority.[29]

Questions:

• What are other ways of improving children’s access to education and health that do not risk discriminating against parents who receive welfare payments?
• Even if the proposals in recommendation 27 were justifiable, would they be the most appropriate and effective way to improve parenting and outcomes for children?
• If a public campaign against benefit fraud and abuse was necessary, how would it focus on specific types of behaviour rather than stereotyping all people who receive such benefits?

Discrimination based on age – under the Human Rights Act (HRA) 1993 and the NZ Bill of Rights Act (NZBoRA) 1990

Domestic legislation	Positive Steps	Concerns
Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993 – section 19(1) NZBoRA Age means . . . . any age commencing with the age of 16 years – section 21(1)(i) HRA		Recommendation 8: places greater sanctions on people aged 16 and 17 than on older recipients of welfare. These include being required to live with a responsible adult or in an adult supervised setting where welfare payments would be managed by an adult, and for sole parents to undertake parenting and budgeting programmes. These sanctions may amount to discrimination based on age. The responsibility would rest with the government to demonstrate that this prima facie discrimination is justifiable under section 5 of the NZBoRA. Specifically, this requires a rational and proportionate connection between each provision and its objectives.

Question:

• Are there more appropriate and equally effective ways in which to improve education, training or employment outcomes for 16 and 17 year olds (and the wellbeing of any dependents)?

Right to work

Domestic legislation	Positive Steps	Concerns
Employees with caring responsibilities, who have been with their employer for the last 6 months, have a statutory right to request a variation of their working arrangements. An employer may refuse a request only if it cannot be accommodated on certain grounds set out in section 69AAF. - Part 6AA Employment Relations Act 2000	Recommendation 43(a): an information package be developed in association with employers to showcase best practice in assisting people with employment barriers to enter and stay in paid employment, and that this include information about the benefits of investing in family friendly and healthy workforce policies. For example, best practice information could identify the benefits of offering the right to request flexible working arrangements to people moving off a benefit into paid work.[30]	There is limited research about the availability and take up of family-friendly policies by Māori, Pacific and/or disabled workers. [31] Ideally an information package would focus on how to ensure all workers have equal access to relevant provisions. This would usefully include examples targeted at Māori, Pacific and/or disabled workers.
A training minimum wage can only be paid to a trainee who is defined as: “(b) required by his or her contract of service to undertake at least 60 credits a year of an industry training programme for the purposes of becoming qualified for the occupation to which the contract of service relates.” - section 3 of the Minimum Wage Order 2011 (SR 2011/26)		Recommendation 14(b)(i) proposes incentives to encourage employers to provide on-the-job training, such as through tiered training wages. Would tiered training wages be consistent with current minimum wage protections? These require any lower starting rates to be balanced against credits towards a recognised industry qualification. If proposed changes operated as a blanket exemption to the minimum wage for young employees, they may result in a complaint of indirect age discrimination.

Questions:

• How will family-friendly, flexible work arrangements be encouraged for people moving into paid work, particularly those with caring responsibilities?
• How will incentives to employ marginalised groups of workers ensure that minimum employment protections are respected?

Right to work continued

Domestic regulations	Positive Steps	Concerns
Right 2 - Every consumer has the right to be free from discrimination, coercion, harassment, and sexual, financial or other exploitation - The Code of Health and Disability Services Consumers' Rights Regulation 1996[32]		Recommendation 12: Adopt an approach modeled on ACC’s Better@Work scheme for people in paid work who become sick Pages 84 and 85: the report notes that ACC’s Better@Work scheme “provides a financial incentive for general practitioners to change their work certification practices . . . so that more workers are deemed fit for selected duties, where it is safe to do so, rather than fully unfit by default”. The Medical Council has raised ethical concerns about such financial incentives: Exploitation of any patient, whether it be physical, sexual, emotional, or financial, is unacceptable - New Zealand Medical Association’s Code of Ethics[33] “Placing ourselves in the position of personal gain for decisions involving complex and imprecise clinical information invites both the reality and appearance of biased judgement. This is not a comfortable place for a doctor to be in and is therefore best avoided.” - Medical Adviser to the Medical Council of New Zealand, April 2010.[34]

Questions:

• What are appropriate roles for health professionals to play in supporting patients to remain in or return to paid employment, consistent with their professional codes of ethics?
• Would the provision of a ‘financial incentive’ for doctors risk creating a moral hazard?

Right to refuse to undergo medical treatment – under the NZ Bill of Rights Act (NZBoRA) 1990

Domestic legislation	Positive Steps	Concerns
Everyone has the right to refuse to undergo any medical treatment – Section 11, NZBoRA Every consumer has the right to refuse services and to withdraw consent to services. – Right 7, Code of Health and Disability Services Consumers' Rights		Recommendation 10: someone who fails or is likely to fail a drug or alcohol test due to drug or alcohol dependence would be offered the option of agreeing to drug and alcohol treatment. Refusal to accept this offer would be classed as failure to meet job search obligations and therefore incur sanctions. Imposing a punitive consequence for refusing treatment is a breach of section 11 of the NZBoRA which protects the right to refuse to undergo medical treatment. The responsibility would rest with the government to demonstrate that this prima facie breach is justifiable under section 5 of the NZBoRA. Given the complexity of employment law around drug testing within the workplace,[35] a blanket provision such as this is likely to infringe on a person’s legal rights.

Question:

• What are other ways of reducing alcohol and drug dependence, and improving employment outcomes, which do not risk breaching someone’s legal and fundamental human rights?

Right to privacy

Domestic legislation	Positive Steps	Concerns
The Privacy Act 1993 controls how agencies collect, use, disclose, store and give access to personal information. Section 6 sets out the information privacy principles. Principle 12 focuses on the use of unique identifiers including the National Health Index number.[36] The privacy Codes of Practice apply these standards to specific areas including health. The Health Information Privacy Code notes: . . . . The National Health Index number is widely used throughout the New Zealand health system. Its use outside of the health context is restricted and closely monitored. - Health Information Privacy Code 1994[37]		Recommendation 7(b): proposes using a single electronic transferable patient record across the health, ACC and welfare systems “to identify issues that might impact on [a person’s] employment, subject to appropriate confidentiality requirements being met”. The right to privacy is significantly broader than the right to confidentiality.

Questions:

• How will a person’s right to privacy be satisfactorily protected if patients’ health records are shared between government agencies?
• What types of information might be shared and what are the expected benefits? Are these benefits sufficiently compelling to justify the reform proposed?

---

^[1] Welfare Working Group (2011) Reducing Long-Term Benefit Dependency: Recommendations. Wellington: Welfare Working Group (http://ips.ac.nz/WelfareWorkingGroup/Index.html).
^[2] Section 5(1)(a) of the Human Rights Act 1993.
^[3] New Zealand is required to regularly report to United Nations treaty bodies about its compliance with ratified conventions, including its response to previous recommendations made by the relevant treaty body.
^[4] Committee on Economic, Social and Cultural Rights (2008). General Comment 19: The right to social security, para 42. Thirty-ninth session: E/C.12/GC/19. (http://www2.ohchr.org/english/bodies/cescr/comments.htm). See also Article 4 of UNCROC.
^[5] Article 27(1)(i) of the CRPD
^[6] The Human Rights Commission made submissions to both the WWG’s August 2010 Issues paper and its November 2010 Options paper. These can be downloaded from: http://www.hrc.co.nz/resources/#Human_Rights_Submissions_
^[7] It also notes a recommendation that could potentially increase the uptake of domestic provisions that give some employees with caring responsibilities the right to request flexible working arrangements.
^[8]In January 2011 the fifty-sixth session of the United Nations Committee on the Rights of the Child considered New Zealand’s third and fourth periodic report (CRC/C/NZL/3-4). The Committee’s concluding observations were adopted on 4 February 2011 (http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.NZL.CO.3-4_en.pdf).
^[9] Committee on Economic, Social and Cultural Rights (2008), para 24
^[10] Committee on Economic, Social and Cultural Rights (2008), para 23
^[11] Committee on Economic, Social and Cultural Rights (2008), para 29
^[12] Children, Young Persons and Their Families Amendment Bill (No. 6), Clause 49 (http://www.legislation.govt.nz/bill/government/2007/0183/latest/whole.html?search=ts_bill_Children+Young+Persons_noresel&p=1#dlm1485500)
^[13] OECD (2006), Starting Strong II: Early Childhood Education and Care, OECD, Paris, chapter 4 (http://www.oecd.org/dataoecd/14/32/37425999.pdf).
^[14] One element of the human rights approach is “identification of all relevant human rights involved and a balancing of rights, where necessary prioritising those of the most vulnerable people, to maximise respect for all rights and rights holders”.
^[15] Committee on the Elimination of Discrimination Against Women (2007). Concluding Comments: New Zealand, para 37. Thirty-ninth session: CEDAW/C/NZ/CO/6 (http://www.un.org/womenwatch/daw/cedaw/cedaw25years/content/english/CONCLUDING_COMMENTS/New_Zealand/New_Zealand-C-6.pdf).
^[16] The right of individuals to freely determine the number and spacing of their children has been recognised by major UN conferences on population and development in Tehran in 1968 and in Cairo in 1994.
^[17] Committee on the Elimination of Discrimination Against Women (1992). General Recommendation 19, Violence Against Women, para 24(m). Eleventh session: CEDAW/A/47/38 (http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom19).
^[18] A 14 week work test has been ruled out by the government. The WWG’s alternative timeframe, work-testing once the youngest child is 12 months old, remains too inflexible to ensure the best interests of the child.
^[19] Information available on the Ministry of Health’s website about Disability in New Zealand: a new model for supporting disabled people (http://www.moh.govt.nz/moh.nsf/indexmh/disability-keyprojects-model).
^[20] A 2010 independent review raised significant concerns about work capability assessments in the United Kingdom (http://www.dwp.gov.uk/docs/wca-review-2010.pdf) that have been acknowledged by the UK Government (http://www.dwp.gov.uk/docs/wca-review-2010-response.pdf).

[21] Many of DRIP’s provisions derive from international treaties ratified by NZ, including ICESCR, and are therefore binding. Others are a standard “to be aspired to”.

^[22] New Zealand’s commitment to the International Labour Organisation’s Decent Work agenda: http://www.dol.govt.nz/services/decentwork/faq.asp
^[23] Finn, D. (2008) Lessons from contracting out welfare to work programmes in Australia and the Netherlands, p 1. York: Joseph Rowntree Foundation (http://www.jrf.org.uk/sites/files/jrf/2307.pdf )
^[24] Committee on Economic, Social and Cultural Rights (2008), General Comment 19: The right to social security, para 22. 39th session: E/C.12/GC/19 (http://www2.ohchr.org/english/bodies/cescr/comments.htm).
^[25] In the Cabinet paper establishing the WWG the Minister noted “except where there are compelling or practical reasons, I suggest that the group have as few restrictions to its scope as possible”. Neither the Cabinet paper nor the Cabinet decision stated income adequacy was out of scope (http://ips.ac.nz/WelfareWorkingGroup/Downloads/Welfare%20Working%20Group%20Cabinet%20paper.pdf). This was clarified in the Scope of the Review on the WWG’s website (http://ips.ac.nz/WelfareWorkingGroup/Scope.html).
^[26] Human Rights Commission (2010) Human Rights In NZ 2010, p 236 (http://www.hrc.co.nz/human-rights-environment/human-rights-in-new-zealand-2010/chapters-from-human-rights-in-new-zealand-2010/).
^[27] This includes parents who do not receive a welfare benefit but receive state support through in-work tax credits.
^[28] They would also constrain the rights of guardianship under sections 15 and 16 of the Care of Children Act 2004.
^[29] Page 110 of the WWG’s final report notes in 2009/10 the Ministry of Social Development prosecuted 789 cases of fraud (0.1% of all payments). The overpayments resulting from welfare abuse amounted to 0.4% of all payments.
^[30] Section 69AAB(2) of the Employment Relations Act 2000 requires that “the employee, as at the date the request is made, has been employed by his or her employer for the immediately preceding 6 months”.
^[31] Heathrose Research Ltd (2010) Flexible Working Arrangements Literature Review: Report to the National Advisory Council on the Employment of Women (http://www.nacew.govt.nz/publications/files/flexible-working-literature-review.pdf). This research found very little information about the availability and take up of flexible working arrangements by Māori, Pacific and/or disabled workers.
^[32] The Code of Health and Disability Service Consumers’ Rights (http://www.hdc.org.nz/the-act--code/the-code-of-rights).
^[33] The New Zealand Medical Association’s Code of Ethics (Revised 2008) (http://www.mcnz.org.nz/portals/0/publications/coles/018%20-%20george.pdf).
^[34] Lillis, S (2010) ‘Avoid exploiting the patient in any manner’. In Medical Council News: Newsletter of the Medical Council of New Zealand. Issue 49, April 2010, pp 12-13 (http://www.mcnz.org.nz/portals/0/publications/medical%20council%20news_%20april%2020010%20_2_6%20fa%20web.pdf).
^[35] Department of Labour’s information on Laws on Drug Testing in the Workplace (http://www.dol.govt.nz/workplace/knowledgebase/item/1361).

^[36] One of the Privacy Commissioner’s functions, under s13(1)(f) of the Privacy Act is to examine any proposed legislation that enables information matching between government agencies. The Commissioner must give particular regard to the Information Matching Guidelines set out in section 98 of the Act.
^[37] Privacy Commissioner (2008) Health Information Privacy Code 2004: Incorporating amendments and including revised commentary, p. 72. Wellington: Privacy Commissioner’s Office (http://privacy.org.nz/assets/Files/Codes-of-Practice-materials/HIPC-1994-2008-revised-edition.pdf).