Timeline and legal documents

Timeline and legal documents

2002

• Initial complaint to the Human Rights Commission about the Child Tax Credit.  The complaint alleges discrimination on the basis of parental income source.

• Crown Law's response to the complaint, dated 29 July 2003.

• CPAG responded to this by urging that the case proceed to the Human Rights Review Tribunal. The Office of Human Rights Proceedings (OHRP), accepted CPAG's application for legal representation to the Human Rights Review Tribunal. The Office covers all of CPAG's legal costs for the case. Once the In-Work Payment was scheduled to replace the Child Tax Credit (April 1st, 2006), the IWP (now IWTC) was included in CPAG's case as well.

• Crown's reply to the OHRP's case on CPAG's behalf, March 2005.

• CPAG's Statement of Claim asserting the legality of the case, May 2005.

• A preliminary hearing was held by the Human Rights Review Tribunal at the end of June 2005.  The Crown challenged CPAG's right, as a non-affected party, to bring a case to the Tribunal. It also argued that the In-Work Payment (now IWTC), which was enacted but not in force, was not "ripe" for legal challenge. Read the interlocutory submissions which OHRP made on CPAG's behalf at those hearings.

• In its decision dated 15 September 2005, the Tribunal found in CPAG's favour on both issues. The decision is an important human rights law precedent because it affirms the right of non-government organisations to challenge policy on human rights grounds, without the organisations themselves having to be affected by any discrimination.
• The Crown appealed the Tribunal's decision on 14 October 2005.

• The appeal was heard at the High Court in Wellington on 2 May, 2006. CPAG's submission here.

• The High Court dismissed Crown Law's appeal. The judge held the case did not lie within his jurisdiction. This meant the Tribunal's decision in CPAG's favour was allowed to stand.

• The OHRP's additional submissions regarding the jurisdictional issues are here.

Notwithstanding two decisions in favour of CPAG's decision to bring the case, the Crown took a judicial review of the jurisdictional issues. Faced with potentially significant delays while the judicial review and its appeal process took their course, CPAG chose to act in its own right as a concerned and responsible public interest group. A class action was brought with the participation of affected people. CPAG's Statement of Claim was amended accordingly.

• Meanwhile, the judicial review hearing in October 2006 resulted in a judgment in CPAG's favour, delivered on 6 November 2006. This decision was not appealed by the Crown, clearing the way for CPAG's discrimination case to be heard by the HRRT.

• The case is thus being brought directly by CPAG in its own capacity as a public interest group, not indirectly on behalf of specific affected persons.

• To formalise this, in 2007 OHRP filed a second amended Statement of Claim in the Tribunal. A Statement of Reply was filed by the Crown, together with an Appendix. 

• The case was heard at the Human Rights Review Tribunal in Wellington, from June 3 - July 21 2008.

• The Tribunal has returned its decision, finding "real and substantive", but justifiable, discrimination.

• CPAG appealed the decision, arguing that the 2005 legislation that was in effect ought to have been considered rather than the original 2004 Working for Families package, which was never put into effect.

• The Appeal was heard in the High Court, Wellington, in September 2011.  Unfortunately the appeal was lost.  Read the Judge’s decision here
• Child Poverty Action Group endorses the court’s decision that there was differential treatment between beneficiary parents and their children who could not get the tax credit and working parents who could. However it says the court was wrong in saying there was no disadvantage as beneficiaries were not entitled to the In Work Tax Credit anyway because they were not full time earners. CPAG says this is illogical reasoning as persons are only eligible for income tested benefits because they do not have full time earnings.
• CPAG also says the court was wrong finding the discrimination was justified. It says the harm to beneficiary children was disproportionate to the gain to society by having a work incentive. CPAG notes that as the job market shrinks further more parents are going to find themselves on benefits and being discriminated against.

• 8 November 2011: CPAG has filed an application for leave to appeal to the Court of Appeal against the High Court decision that the Government’s In Work Tax Credit was not unlawfully discriminatory against parents on Benefits and their children.

• CPAG has consistently argued that while it has no objection to the government creating a gap between work and beneficiary income, the form of the In Work Tax Credit was highly discriminatory. The very large majority of beneficiary parents could not obtain work, for reasons outside their control. The Government’s own estimates were that only 2 – 5 % would be able to leave benefit and obtain the In Work Tax Credit. Yet the In Work Tax Credit excluded the entire group of beneficiary parents and their children from additional family income which has been desperately needed for the past 6  years to pay for basic living costs such as food, rent and power.  CPAG says there were other much cheaper ways to create an income gap and leave the bulk of the money over for distribution to all parents on low to middle incomes. Instead the government of the day paid money to those higher up the income scale, keeping children in poverty.

2012

• CPAG’s application for leave to appeal was declined by the High Court last month. CPAG have filed an application with the Court of Appeal for special leave to appeal the High Court decision.  That matter will be heard sometime after mid June. 

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.