The 2013 Hearing and beyond

Thank you so much to all our wonderful Wellington supporters and others who flew in from other parts of the country to support our Court of Appeal Hearing on 28 & 29 May.

It was hugely important for the judges to see the public interest in the case, and we did well.  At 10am on the first day of the hearing - we had a full house, with not a chair to spare.  Thank you to those who supported us in solidarity, especially those who stuck it out for both days.   We really appreciate your support.

Please have a look at this fantastic opening statement delivered by our counsel Frances Joychild (QC).

The Court of Appeal Decision was released on Aug 30 2013 - click here to read the full decision.

After much thought and consultation, CPAG has decided not to pursue its long-running human rights case in the Supreme Court but will continue to battle for the rights of New Zealand's poorest children. Read the media release here

In May of this year CPAG sought a declaration from the Court of Appeal that the In Work Tax Credit, worth at least $60 a week for the support of children in low-income families, unjustifiably discriminates against families on benefits. Traditionally New Zealand has given a weekly family assistance social assistance payment to the caregiver based on the number and ages of the children. The ‘In Work Tax Credit’ marks a portion of this payment off and denies its benefits to some 230,000 of the lowest income children. This policy is a major contributor to the extent of child poverty that we are seeing across New Zealand. 

Our long journey into lengthy and complex Court hearings over many years has raised the profile of this issue and more people now understand that our incomes policies for children entrench poverty. In spite of a relentless political campaign that has resulted in beneficiaries being the most stigmatised group in New Zealand, a recent NZ Herald digipoll found over 50% of those surveyed supported the CPAG in seeking an extension of the In Work Tax Credit to all low income children. The kind of discrimination found in the Working for Families package is inimical to the Kiwi way of a fair go for all and, to the belief that New Zealand is a great place to bring up children. 

To make the argument tractable from a legal position, the grounds we had to argue on in Court were more limited than CPAG’s wider concerns. We see all kinds of unfairness with the design of the In Work Tax Credit, not just for those on benefits. Families have been denied access to the IWTC for a variety of reasons; due to redundancies and disasters such as the Christchurch earthquake; because they are students; or are over 65 receiving New Zealand Superannuation. However, the glaring anomaly is the exclusion of 230,000 children in benefit households from a tax-funded child tax credit paid to the caregiver, almost always the mother, to meet the needs of her children. 

We are pleased that the bizarre argument that the Crown used in the Human Right Tribunal (2008), the High Court (2011) and the Court of Appeal (2013) based on one very strange table (which can be found at the end of the Court of Appeal decision) has been dismissed.  The hours of argument and detailed submissions on the hypothetical comparisons in this table deflected the gaze away from 230,000 of our poorest children.

Agreeing with CPAG, the Court of Appeal found that there is discrimination against all beneficiaries with children, not just the narrow group Crown Law  wanted to limit it to, and that as part of the test for discrimination, this different treatment causes material harm.  The value of this decision should not be underestimated. It might be regarded as a major win, clarifying the test in a helpful way for future discrimination cases.

Nevertheless despite the clear finding of discrimination, the Court of Appeal  then went on to declare that the discrimination was justified because it was aimed at getting beneficiaries into work.  Calling a payment for children a 'work incentive' does not change its nature.  The harm of denying adequate income support by this discrimination is not trivial; it is inflicted on 230,000 of the poorest children in our society. Furthermore, the corresponding social gain of shifting beneficiaries off benefits has proved minimal or even zero in the recession.

Parenting is challenging and expensive work, (note that it is actually work) even for the well-resourced, so it is hard to imagine a justification for departing from the principle of treating all children in low income families equally for all child-related tax-funded payments.  This is especially true when by so doing, child poverty and all its ills is perpetuated. It is great pity the Court did not protect children by finding such discrimination unjustified.

Unlike some countries with upper and lower houses, New Zealand has few checks and balances on policy development. CPAG has used the human rights framework to draw attention to our obligations under the Human Rights Act, the Bill of Rights Act, and the various international treaties and conventions such as UNCROC.   Appropriate proper policy process was not followed when the Working for Families package was introduced and the discriminatory IWTC exemplifies the resultant flawed policy. 

What next?

After much thought and consultation, CPAG has decided not to pursue its long-running human rights case in the Supreme Court but will continue to battle for the rights of New Zealand's poorest children.  Read the media release here