Court of Appeal Compounds Child Poverty

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In a previous post I highlighted an important challenge in the Court of Appeal: Child Poverty Action Group v The Attorney General. 

Well, the decision is out, and guess what, folks?

Child Poverty wins.

In brief, the case is about the impact of the “In Work Tax Credit” in the universally maligned “Working for Families” package.  I say “universally maligned” as nobody seems to really understand how the package works, including IRD, and it appears you need a PhD to get even close to figuring it all out with its myriad of permutations, implications and calculations.

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Well, it so happens that Dr Susan St John of Child Poverty Action Group (CPAG) does have a PhD and she, along with her colleagues at CPAG, view the package as inherently discriminatory and inconsistent with any effective strategies to eradicate the stain of child poverty in this country.

CPAG’s argument – inarticulately summarised here – is that Working for Families unfairly denies children with unemployed parents the same subsidy provided to children similarly situated, but with parents in work.  In essence, this amounts to $60 less a week for 230,000 children in Aotearoa (according to CPAG information).

At the time of going to the Court of Appeal and as I have quoted before, CPAG succinctly described this as 230,000 children who “do not enjoy the same tax-funded support to eat well, keep healthy, warm and dry, and to participate in school activities and sport as others”.

That’s the case.  Right there.  The State – our government, those elected to represent all of us – effectively punishing children for having parents not in work.

The Attorney General’s response, determined before Mr Finlayson’s misogyny reared its ugly head in recently referring to Dame Anne Salmond as “shrill” (would he have said that about a man?!!), was that the policy incentivises work and getting people off benefits.

To win, CPAG had to convince the Court of Appeal that the Working for Families package was (1) discriminatory (in that there was an advantage between one group and another comparator); and (2) that the discrimination could not be reasonably justified (more specifically, that it was a “reasonable limitation” on the right of freedom from discrimination).

In my earlier post, I argued that in taking a child rights centred approach based on Article 3 of the Convention on the Rights of the Child (where in every decision the child’s best interests shall be the primary consideration) the Working for Families package could not be justified.  How is it in a child’s best interests to punish that child for the State perceived indolence of the parents?

I also wrote (as there is nothing better than quoting yourself): “But, I am not sure this approach will win out in the Court.  I think this will all be about “work”, and not at all about the children, with the economy being our true State religion.”

Unfortunately, I was right.

While the Court of Appeal did hold that the In Work Tax Credit was discriminatory, it ultimately held that the “work incentive objective” justified the discrimination.

In its decision, the Court of Appeal only explicitly refers to the Convention on the Rights of the Child once.  Disappointingly, there is absolutely no attempt to take a child rights centred approach.  The Court of Appeal instead prefers to fall back on comfortable Chicago school territory in placing a premium on work.

This approach completely ignores the compounding effect of child poverty and the logical reduction in economic mobility on the children missing out as a result of this policy.  Quite simply, child poverty begets adult poverty.  We are all poorer for it, in the end.

Now, I am not trying to be naive, and I do think there is a legitimate and rational role in government trying to incentivise people to work.  But, not where children are punished.  The long term outcomes of pursuing such a punitive policy do nothing for us as a country and only serve to drive further the wedge of inequality we are seeing more in our society.

So, where does this leave us?

First, Working for Families needs to be discarded.  It simply does not work and has led to no tangible reduction in child poverty.  This current government should repeal it and the opposition parties should be public in condemning Working for Families (the package was brought in by Labour).

Second, hats off to CPAG.  Although ultimately unsuccessful at the Court of Appeal stage, CPAG represents civil society holding the government to account against human rights standards.

This is extremely important.  As we have seen, this government has shown and continues to show a complete disregard for the concept of a representative democracy.  As New Zealanders, we generally prefer not to kick up a fuss, but I feel that there simply has to be more scope for strategic litigation in our courts.  This is particularly so in combating inequality: we need a pluralist strategy to achieve egalitarianism, not just through political action (ie, relying on a political party platform), but through civil society mobilisation, public education, public discontent, and smart strategic litigation.

Third, this case highlights the government’s terrible attitude to being tested in the courts.  The Crown has tried every little procedural trick it could to drag out being scrutinised and overcome CPAG with its minimal resources (litigation ain’t cheap).  The Crown supposedly has a principle of being a model litigant, and one would assume that would include being happy to have one’s policy and legislation tested against fundamental human rights.  In future, the Crown should act as a genuine model litigant and welcome debate through public and judicial scrutiny.

Fourth, the Court of Appeal is not our highest court.  While this court was not brave enough to act as a genuine check on a flawed and discriminatory government policy, the Supreme Court possibly beckons.

Will Child Poverty win again or will we actually do something about it?

12 COMMENTS

  1. Poverty begets inter generational damage – poor health, educational disadvantage, impaired psychosocial development, low expectation…..the list goes on. Cruel legislation. I agree, this legislation needs to be scrapped.

  2. Getting rid of working for families won’t help with child poverty unless something useful is put in its place.

    WFF currently does have a place. Just one example is that it allows a single parent to work only 20 hours , get a top up and be free of many of the most unpleasant aspects of ‘ working for WINZ’ ( being on a benefit)… so why discard it completely.

    We need to discard a lot more than that to help ourselves out of this terrible hole we have fallen into as a country. The first thing we need to discard is our attitude.

    Attitude to wealth and poverty, paid and unpaid work, consumption objects and our environment, but most especially our attitudes towards those we perceive as not as good as us.

    • “We need to discard a lot more than that to help ourselves out of this terrible hole we have fallen into as a country. The first thing we need to discard is our attitude.

      Attitude to wealth and poverty, paid and unpaid work, consumption objects and our environment, but most especially our attitudes towards those we perceive as not as good as us.”

      This. It’s sickening to see just how many people believe that beneficiaries are horrible, greedy people who leach off the hard work of others (which could be much more accurately applied to the majority of the people who own the most wealth. Though apparently, “they deserve it”). How many people do you know that are living on a benefit and are happy?

      The vast majority of people are on a benefit because either they are unable to work (due to heath/disability reasons or because of people dependant on them), they are in the process of gaining work (via training, studying, etc), or they’re simply unable to find work. Especially in times where there really aren’t many jobs available, and a fairly large number of jobs are being cut on a regular basis, the focus needs to be on creating jobs for those people on the benefit rather than punishing them for not being able to find non-existent work.

      Going back to the main issue of this blog, it really isn’t fair that children are being punished because of their parents. They don’t choose who their parents are. We used to live in a country where a child of a solo parent on the benefit could grow up to become Prime Minister (yes, Mr Key, I’m looking at you). I really doubt that those children would have any hope of becoming even remotely successful now.

  3. An incoming Labour prime minister must take on the role of Minister for Children. This will send a clear signal to the country that the crisis of child poverty is a blight on our once-egalitarian society and that it is the #1 problem that must be addressed.

    No other issue is as important, as considering 250,000 children are in poverty we are creating a social time bomb that will impact on us all.

    • HI, Frank – do we really need another Ministry? Who will be perverted and manipulated by the next National government. The last labour government laid the ground work for many good ideas (some bloody awful ones as well) – but this mob have distorted these – or buggered the framework if you will. Why add to the mess? And may I point out that the Ministry of Social Development is actually responsible for what you are suggesting.

      I not comfortable with the size of the state in this country (actually scares the shit out of me – can it be anymore invasive?)- and adding more will do bugger all except create another block in the way of something done. What I think would be better – is if the Minister of Health (Not the Ministry of Social Development ) and the whole ministry is held to account for poverty and poverty related illness and its’ wider effects. Imagine a minister having there wages cut by 50% if the poverty rate increases by .05 of a % – positive motivation.

      What we need to do is end this nastiness, and make and all branches of government do there bloody jobs. And if they won’t – fire them and hire people that will. The reality is National have gutted many government departments and because it was national and they never think things through – the good people left and we have many departments which are full of piss poor public servants – who can’t be honest – frank and offer good advice.

      I worry we will get more bureaucracy with a change of government – we don’t need it. What we need is a better governance – that works for the people.

  4. How much is spent on paying out working for families weekly? It could be balanced out by reducing the amount paid to working families and using the balance for an equivalent amount to be paid for all children. If the working take exception, tie it to a stipulation that there be no increases in the amount for children born past the initiation date (I am a screaming advocate for birth control and anti-overpopulation.–fine tuning would be required). If that raises questions–give all the WFFamilies payouts as food vouchers. At least there will be food on all tables!

    • You must read Dan Brown’s latest book called ‘Inferno’, it has scary statistics about overpopulation it actually should be getting a dialog started on this looming catastrophe, Dan Brown or no Dan Brown… I think he is brave to bring up such a contentious issue. The real white elephant in the room of this world IS over population.

  5. Disappointingly, there is absolutely no attempt to take a child rights centred approach.

    Well, I expect the court took the fairly uncontroversial view that there is no inherent “right” to receive more money from the government than you’re receiving at the moment. The only “discrimination” going on here is the discrimination involved in any targeted subsidy.

    …effectively punishing children…

    You don’t seem to understand the meaning of the word “punishment.” If you pay extra to people who meet a particular criterion, that’s not a “punishment” of people who don’t meet the criterion.

    Now, I am not trying to be naive, and I do think there is a legitimate and rational role in government trying to incentivise people to work.

    If that’s the case, please describe how the government might do that in a way that doesn’t involve full-time employment providing a higher income than a social welfare benefit.

    • If that’s the case, please describe how the government might do that in a way that doesn’t involve full-time employment providing a higher income than a social welfare benefit.

      Lift the minimum wage, for one, which would mean full-time employment would provide more income than the benefit. Secondly, actually create some jobs for people who lack employment. The majority of them are not on the unemployment benefit because they’re too lazy to work, but rather because there are no employment opportunities available to them (or there are very few jobs with thousands of applicants). This is especially the case for unskilled people.

      Thirdly, is it really better for society that solo parents who have young children (below the age of 5-6) are working 40+ hours a week, rather than giving their children the best start at life? I would argue that it’s better for society if they are provided with enough income to live on (by the state) and spend their time bringing up their children, rather than working in jobs which do not even exist at the moment.

      • Addressing the problem of NZ’s low wages would certainly make more sense than the WFF approach of subsidising the low wages via tax transfers. It could be done via raising the minimum wage or by encouraging union membership, or both. Neither one’s an option under this government, though – we’d need a Labour/Green government for measures like that to even become a possibility (one reason the “plague on both your houses” view is wrong.

        Thirdly, is it really better for society that solo parents who have young children (below the age of 5-6) are working 40+ hours a week, rather than giving their children the best start at life?

        Well, it’s certainly not good for society. But then, it’s not good for society to finance the growth of an underclass either, which is what the current setup is doing. What would be better for society would be for people without the attitude, ability or means to raise children to be discouraged from turning them out at a rate of one every year or two. An approach that involves increasing funding for the people the DPB was intended to support without some mechanism for discouraging wasters won’t get a lot of support.

  6. Hi there,
    Thanks for the article Michael.

    I am one of the many parents who are medically unable to work 15 hours or more a week so no WFF for me now, or in the future. I am ashamed that:
    1. I am a single parent reliant on welfare as my sole income (but frankly I would be a bit of a liability to any partner due to my disability)
    2. My children are second class children with all the disadvantages that come with that because of my disability. My inability to access WFF affects them directly and the suggestion that WFF will “motivate” me to overcome what is deemed a permanent disability is an insult I live with daily.
    3. Even though I could in theory earn up to $100/week without abatement due to the extent of my disability I haven’t been able to yet.

    Finally I’d like to point out that the Office of Disability Issues (part of MSD) has research showing that people with disabilities are more likely to be in debt than those who aren’t disabled. I wonder what the level of personal debt is like for those with severe long term disability AND children?

  7. There seems to me to be two kinds of poverty . Spiritual poverty and financial poverty . And I want to go in record by stating ; I don’t mean Jesus Freaky spirituality lest I raise the hopes of the likes of Brian Tamaki or those American bible bashing nut jobs who now haunt our TV’s .

    Dear old New Zealand has both kinds . woo hoo .

    Poverty stricken New Zealanders are in a parallel Universe when it comes to comparing us to poverty stricken South East Asia or India for example .

    You can lose your wallet but you can’t afford to lose your spirit .

    When your spirit goes , it stays gone and your future generations will consequently be born without it . A human without a spirit is a dangerous meat pack indeed . All cunning and no empathy and who can metaphorically and literally beat what they need out of others . Reducing poverty in NZ is far more than simply providing money to the poor . It’s about making sure that those who took our money and sabotaged our country are made to atone . Make the abusers front up and show themselves to give that vital perspective on what it is that is actually going on here in beautiful New Zealand / Aotearoa .

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