CPAG's guide to the case - what, when, how and why

CPAG agrees there should be a gap between work and beneficiary income but strongly disagrees with creating such a work incentive by denying children of beneficiaries a significant amount of financial support - at least $60 extra each week.  A very large majority of beneficiary parents can not obtain work, or are not able to meet the IWTC work requirements due to a lack of jobs, ill health, disability or child care responsibilities.  The Government’s own estimates when introducing the IWTC were that only a tiny number of beneficiaries around 2 percent would be able to leave the benefit and obtain it.  Yet the IWTC excluded the entire group of beneficiary parents and their children from additional family income which was and is desperately needed to pay for basic living costs such as food, rent and power. 

CPAG believes there were other much better ways to create an income gap which would leave plenty of Government funds for distribution to all parents on low to middle incomes. Instead the Government paid money to those higher up the income scale, keeping children in poverty.

Fighting to be heard

CPAG made a complaint to the Human Rights Commission in 1996, but unfortunately, at that time the Government was not subject to the Human Rights Act 1993.  However in 2001, an amendment to the Act came into effect which made the Government, its agencies and anyone who performs a public function, accountable for any unlawful discrimination.  So in 2002, CPAG was able to formally challenge the Government under Part 1A of the Human Rights Act. 

The Crown tried to stop the case proceeding by challenging CPAG’s right to take it because it was not directly affected by the tax credit.   When the Tribunal rejected the Crown’s claim, it appealed to the High Court and lost there as well.  

The decision created an important human rights law precedent because it affirms the right of non-government organisations to challenge policy on human rights grounds, on behalf of others, without the organisations themselves having to be personally and directly affected by any discrimination.  

Fighting against discrimination in family assistancein the Human Rights Review Tribunal

So finally, in mid-2008 CPAG’s case was heard by the Human Rights Review Tribunal[i].  The Tribunal found that the IWTC is discriminatory because it is available to working but not beneficiary families and this disadvantages children in beneficiary families. The test of discrimination includes proving that harm is caused and the Tribunal was satisfied it was.  The judge said that these children were “disadvantaged in a real and substantive way “.  However, the Tribunal then found that the discrimination was justified in a ‘free and democratic society’ because the Government was trying to create a gap between working and beneficiary income in order to encourage people to work rather than be on benefits.   Therefore, the Tribunal refused to issue a Declaration of Inconsistency with Human Rights legislation.    Following this decision, CPAG filed an appeal in the High Court[ii]. 

Fighting against discrimination in family assistance in the High Court

In addition to CPAG appealing the Tribunal’s finding that the discrimination was justified, the Crown also appealed the Tribunal’s finding that the IWTC is discriminatory.  

In September 2011, the appeal was heard. CPAG argued that the legislative measure is inconsistent with the right to be free from employment status discrimination, guaranteed in the New Zealand Bill of Rights Act 1990. Even when due deference is given to the executive and legislative branch of the Government for its capacity and competence to determine legislation in the area of social and economic policy, this discrimination is still not able to be demonstrably justified, in a free and democratic society.

The High Court found that the IWTC does discriminate against some beneficiary families, but it is not unlawful as there is a legitimate objective to incentivise beneficiaries into work.  Nevertheless it said CPAG’s complaint that the government was not doing enough to alleviate child poverty could be justified statistically, and that the complaint was strengthened by the Government’s action in 2005 extending the IWTC upwards to the better off families. At that time there was further funding available that could have enabled a redesign of the Working for Families package to achieve the objective of alleviating child poverty.  The judgment also said that for a so-called developed country, New Zealand has a poor record on child poverty – a social ill with significant adverse social and economic consequences.

In November 2011 CPAG filed an application for leave to appeal to the Court of Appeal. It believes that some of the reasoning behind the judgment may seem sensible at first glance but is actually fallacious.   For example, when the court said that there is no discrimination against those beneficiaries who can’t work the hours required because not being able to work would make them ineligible anyway, it failed to appreciate that being a beneficiary and being unable to meet the required work hours is more or less the same thing.  CPAG also argues the court was wrong to find the discrimination justified. It says there were other equally effective ways of achieving the objectives that would not have discriminated against children and further, the benefit the government gained was disproportionate to the harm caused to children.

The case so far may not have produced the declaration of inconsistency with Human Rights legislation that was sought, but nevertheless there is a strong message from the High Court that the Government is not doing enough on child poverty.  In CPAG’s opinion, the court’s statements are damning and ones which the government needs to act upon. 

What Next?

The Application for leave to appeal to the Court of Appeal will be heard on the 26^th of March, 2012. If granted CPAG will file a Notice of Appeal and seek a hearing date before the Court of Appeal in 2012.

The Office of Human Rights Proceedings (OHPR) provided legal representation for CPAG and lawyers Cathy Rogers and Jenny Ryan from the office worked on the case.  It also instructed Frances Joychild, Barrister to act for CPAG before the High Court.  CPAG wishes to thank each for their exemplary work on this important case.

[i] The record of the Tribunal proceedings in 2008 amounts to nearly 10,000 pages. This includes 21 statements of evidence (totaling over 300 pages), which refer to more than 250 documents (totaling nearly 8,000 pages) and a transcript of over 1,000 pages, which was produced contemporaneously at the hearing.

[ii] Following the Tribunal’s decision, CPAG filed an appeal in the High Court. As the appeal was inadvertently filed several days late, CPAG needed to seek leave to appeal out of time. In 2009, the Court granted this application and the appeal was set down for hearing in 2010.  However, in mid-2010, the Crown sought to recall the Court’s decision allowing the appeal to proceed (on the basis of a later Court of Appeal decision). The hearing date had to be abandoned while this issue was considered by the Court. In late 2010, the Court rejected the Crown’s recall application, which meant that the appeal could proceed.