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Social Security (Fraud Measures and Debt Recovery) Amendment Bill (Consistent) (Section 19(1)) [2011] NZBORARp 55 (29 November 2011)

Last Updated: 30 April 2019

Social Security (Fraud Measures and Debt Recovery) Amendment Bill

Consistency with the New Zealand Bill of Rights Act 1990: Social Security (Fraud Measures and Debt Recovery) Amendment Bill

29 NOVEMBER 2011

1. We have considered whether the Social Security (Fraud Measures and Debt

Recovery) Amendment Bill (PCO 16708/1.12) (‘the Bill’) is consistent with the rights and

freedoms affirmed in the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’). The Bill is subject to minor editorial changes and we will provide further advice if necessary upon receiving the final version of the Bill. We understand that the Bill will be considered by the Cabinet Legislation Committee at its meeting on 6 December 2012.

2. The Bill amends the Social Security Act 1964 to extend liability for benefit fraud to the undeclared spouse or partner of a beneficiary. The Bill would place undeclared spouses or partners in the same position as declared spouses and partners where there is proven benefit fraud. This would mean that undeclared spouses and partners would be jointly liable for the amount fraudulently received where they knew or ought to have known fraud was occurring and they benefited from the fraud.
   
3. The Bill also creates an offence for the spouse or partner of a beneficiary who has knowingly or recklessly benefited from a beneficiary’s fraud. A person convicted of this offence may be imprisoned for a term not exceeding 12 months and/or subject to a fine not exceeding $5,000.
   
4. We considered two issues relating to the joint liability provision for an undeclared spouse or partner for fraud and whether these could be considered to be discrimination contrary to s 19(1) of the Bill of Rights Act. The first issue is where there is differential treatment between different types of spouses or partners based on the type of benefit they each receive or just one receives. We understand that the Bill removes an existing distinction between declared and undeclared partners and spouses. Currently, an undeclared spouse or partner is not liable for fraud committed by their beneficiary spouse or partner regardless of their knowledge of the fraud. Conversely, a declared partner or spouse is liable for their spouse or partner’s benefit fraud if they knew or ought to have known about it and benefited from the fraud. There is no discrimination where there is no distinction.
   
5. The second issue is whether the Bill creates a distinction resulting in discrimination between, on one side, partners and spouses, and on the other, any other relationship (for example, a sibling). We consider that the nature of the relationship between spouses and partners in the context of the Social Security Act 1964 does not allow for a comparison with other types of relationships as defined under 21(1)(l) of the Human Rights Act 1993 or otherwise. Without a comparator group, there is no discrimination.

6. The Bill also allows more effective debt recovery and discretion in managing recovery in individual cases. The Bill also provides review and appeal rights to spouses and partners affected by the new debt recovery powers.
   
7. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.
   

Melanie Webb

Acting Chief Legal Counsel Office of Legal Counsel

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Social Security (Fraud Measures and Debt Recovery) Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.