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Social Security (Extension of Young Persons Services and Remedial Matters) Amendment Bill (Consistent) (Sections 5, 19) [2015] NZBORARp 22 (10 June 2015)

Last Updated: 17 January 2019

Social Security (Extension of Young Persons Services and

Remedial Matters) Amendment Bill

10 June 2015

Hon Christopher Finlayson QC, Attorney-General

Consistency with the New Zealand Bill of Rights Act 1990: Social Security (Extension of

Young Persons Services and Remedial Matters) Amendment Bill

Purpose

1. We have considered whether the Social Security (Extension of Young Persons Services and Remedial Matters) Amendment Bill (‘the Bill’) is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’).

2. We have concluded the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching that conclusion, we have considered the consistency of the Bill with s 19(1) – the right to freedom from discrimination. Our analysis is set out below.

The Bill

3. The Bill amends the Social Security Act 1964 to implement extensions to the Youth

Service, and provide for remedial matters.

4. The Youth Service provides wraparound support to young people with the aim of reducing long term welfare dependency. Currently the Youth Service applies to 16-17 year old beneficiaries (who receive the youth payment), and to 16-18 year old beneficiary parents (who receive the young parent payment).

5. Young people receiving the youth payment or young parent payment:

• receive support from a youth coach

• have youth activity obligations (education, budgeting and, for parents, parenting)

• receive a $10 per week incentive payment where they meet these obligations

• have their money managed by the Ministry of Social Development (MSD), and

• for young parents, receive additional support to cover childcare costs.

6. The Bill extends the Youth Service to 19 year old beneficiary parents, and 18 and 19 year old beneficiaries considered at significant risk of long term welfare dependency.

7. The Bill makes several changes to the Social Security Act unrelated to the extension of the Youth Service: limiting third party appeals, authorising payment of terminal benefits into deceased beneficiaries’ accounts, and authorising payment of money on payment cards to young people. These changes do not engage the Bill of Rights Act.

8. The Bill also retrospectively validates MSD’s practice of commencing benefit payments the day after a beneficiary’s stand down period ends, rather than on the day the beneficiary’s stand down period ends as required by law. While this change is retrospective, it does not engage the Bill of Rights Act as it is not a criminal penalty.

Consistency of the Bill with the Bill of Rights Act

Section 19 – Right to freedom from discrimination

9. Section 19(1) of the Bill of Rights Act affirms that everyone has the right to freedom from discrimination on the grounds set out in the Human Rights Act 1993. Grounds of discrimination include age, family status, and marital status.

10. Drawing on New Zealand case law on discrimination, we consider that the key questions in assessing whether there is a limit on the right to freedom from discrimination are: [1]

• does the legislation draw a distinction based on one of the prohibited grounds of discrimination; and if so

• does the distinction involve disadvantage to one or more classes of individuals?

11. In determining if a distinction arises, consideration is given to whether the legislation proposes that two comparable groups of people be treated differently on one or more of the prohibited grounds of discrimination. [2] The distinction analysis takes a purposive and un-technical approach to avoid artificially ruling out discrimination. Once a distinction on prohibited grounds is identified, the question of whether disadvantage arises is a factual determination. [3]

12. Where a provision poses a limit on a particular right or freedom, it may nevertheless be consistent with the Bill of Rights Act if it can be considered a reasonable limit that is justifiable in terms of s 5 of that Act. The s 5 inquiry is two-fold: whether the provision serves an important and significant objective, and whether there is a rational and proportionate connection between the provision and the objective. [4]

Discrimination on the grounds of age, family status, and marital status

Discrimination on the ground of age

13. Prohibited grounds of discrimination under the Human Rights Act include age, which means any age commencing with the age of 16 years.

14. The Bill extends the current distinction based on age drawn in the Social Security Act between 16-18 year old beneficiary parents on the one hand, and older beneficiaries on the other. It extends the former group to include 19 year old beneficiary parents.

15. The Bill disadvantages young beneficiary parents by imposing on them money- management obligations and restrictions which are not imposed on older beneficiaries. Young beneficiary parents are also subject to education, training, and work obligations (and

sanctions for non-compliance) at an earlier stage in their child’s development than when

older parents are subject to work obligations.

16. We consider the limit the Bill places on the s 19 right to freedom from discrimination on the ground of age justified for the following reasons:

• The objective of reducing long-term benefit dependency and providing additional support and encouragement to undertake education or training for young beneficiaries is a sufficiently important objective.
• The limit placed on the right to freedom from discrimination on the ground of age is rationally connected to this objective.
• Young parents are disproportionately represented in negative socio-economic statistics which are linked to long-term economic disadvantage. MSD has advised young parents, in general, take longer to gain a qualification due to their parenting responsibilities, and in turn, their earnings potential can be hindered by their disrupted education and lack of work experience.

• Attaining higher levels of education is linked to better employment and earnings outcomes.

MSD has advised that the anticipation of motherhood leads many teens to revaluate their

priorities and motivates them to focus on their education. However, having the right support is necessary to realise these aspirations.

• MSD has advised that there are considerable gains to be made from ensuring young people develop good money management. We note credible pathways for young people to gain increased control of their payment exist, based on successful completion of a budgeting programme and demonstrated ability to effectively manage the discretionary portion of their payment.
  

17. The Bill also draws a distinction based on age between 18-19 year old beneficiaries considered at significant risk of long-term welfare dependency on the one hand, and on older beneficiaries on the other.

18. The distinction disadvantages young at-risk beneficiaries by imposing on them money- management obligations, and education, training, and work obligations which are not imposed on older beneficiaries.

19. We consider the limit the Bill places on the s 19 right to freedom from discrimination on the ground of age justified for the following reasons:

• The limit placed on the right to freedom from discrimination on the ground of age is rationally connected to the stated objective.
• MSD data indicates that young beneficiaries under 20 years are at higher risk of long-term welfare dependency than older beneficiaries. As noted above, attaining higher levels of education is linked to better employment and earnings outcomes. MSD has advised that there is strong evidence to support the economic and social benefits of gaining at least NCEA Level 2 or equivalent.
• The limit minimally impairs the right to freedom from discrimination. The obligations and restrictions are targeted to young people who are individually assessed as being at-risk of long-term welfare dependency. Whether a person is at-risk is established in a manner which allows their circumstances to be taken into account and preserves discretion to tailor restrictions and support to individuals.

• As noted above, there are considerable gains to be made from ensuring young people develop good money management and credible pathways for young people to gain increased control of their payment exist.
  

Discrimination on the ground of family status

20. Prohibited grounds of discrimination under the Human Rights Act include family status, which includes “having the responsibility for part-time or full-time care of children or other dependents” or “having no responsibility for the care of children or other dependents”.

21. The Bill draws a distinction based on family status between 19 year old beneficiaries with a dependent child, and 19 year old beneficiaries without a dependent child.

22. The distinction disadvantages young beneficiaries with a dependent child by imposing on them money-management obligations, and education, training, and work obligations which are not imposed on 19 year old beneficiaries without a dependent child.

23. We consider the limit the Bill places on the s 19 right to freedom from discrimination on the ground of family status justified for the following reasons:

• The limit placed on the right to freedom from discrimination on the ground of family status is rationally connected to the stated objective.
• As noted above, young parents are disproportionately represented in negative socio- economic statistics which are linked to long-term economic disadvantage. Attaining higher levels of education is linked to better employment and earnings outcomes. Having the right support can help young parents focus on their education.
  

Discrimination on the ground of marital status

24. Prohibited grounds of discrimination under the Human Rights Act include marital status, which includes “being single” or “being married, in a civil union, or in a de facto relationship”.

25. The Bill draws a distinction based on marital status between 16-19 year old partners of beneficiaries with a dependent child, and 19 years olds who are single (or whose beneficiary partners do not have dependent children).

26. While this distinction is based on marital status, it is drawn in order to target 16-19 year olds based on their relationship to their beneficiary partner’s dependent children. This distinction is analogous to the distinction based on family status drawn in order to target 16-

19 year old beneficiaries with a dependent child. Both distinctions recognise that having responsibility for the care of dependents places the young person at risk of long-term welfare dependency and worse educational, employment, and earnings outcomes.

27. We therefore consider the limit the Bill places on the s 19 right to freedom from discrimination on the ground of marital status justified for the same reasons as discussed above with respect to discrimination on the ground of family status.

Conclusion

28. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.

Jeff Orr

Chief Legal Counsel

Office of Legal Counsel

Disclaimer

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 (Extension of Young Persons Services and Remedial Matters) 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.

Footnotes

[1] See, for example, Atkinson v Minister of Health and others [2010] NZHRRT 1; McAlister v Air New Zealand [2009] NZSC 78; and Child Poverty Action Group v Attorney-General [2008] NZHRRT 31.

[2] Atkinson v Minister of Health and others, above n 1, at [211-212]; McAlister v Air New Zealand, above n 1 at [51] per Tipping J; and Child Poverty Action Group v Attorney-General, above n 1, at [137].

[3] See, for example, Child Poverty Action Group v Attorney-General above n 1, at [179];

and McAlister v Air New Zealand, above n 1, at [40] per Elias CJ, Blanchard and Wilson JJ.

[4] The proportionality test as applied in Hansen v R [2007] NZSC 7 [123], draws on the test articulated by the Canadian Supreme Court in R v Oakes [1986] 1 SCR 103, R v Edwards Books and Art Ltd [1986] 2 SCR 713, and R v Chaulk [1990] 3 SCR 1303.