MUST READ: Dr Susan St John – Justice delayed is democracy’s undoing

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Why am I so uneasy at the beginning of 2019? After all, isn’t it supposed to be Labour’s “year of delivery”?

A few years ago, I went to see ‘The Trial’ by Kafka. The audience was forced to walk from room to room trapped in a bureaucratic, persecutory nightmare. Finally, we ended up in a dark room full of smoke and barbed wire.  I heard the inevitable gunshot with a sense of relief; now we could all go home. Kafka created so well an aftertaste of utter pointlessness and unredeemed frustration with the unrelenting irrationality of state behaviour.

Individuals arguing their case for justice have been caught up in Kafkaesque-like experiences at WINZ, MSD, ACC and IRD, where unresponsive officials impose anachronistic rules and laws made for a different time and era. For those who don’t cave in at this point, there may be appeals to the Benefit Review Committee, the Social Security Appeals Authority, and then the daunting prospect of higher courts. Some disappear for years in the labyrinth of the Office of Human Rights Proceedings (OHRP) and the Human Rights Review tribunal (HRRT). While getting to a hearing in the HRRT can take years, after the hearing an actual decision can take many more years and even then, a finding of unlawful discrimination does not bind the Crown to reform the laws.

As the years drag by, the people affected lose their faith in truthfulness and rationality. They see their savings run down and with the unrelenting fight, they become sick and too often, may die without any resolution.  Like the irrationality of the worst Kafka play, the state can wilfully withhold for years, even decades, the power to correct the things that are obviously and incontrovertibly wrong. That can’t be good for democracy.

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Over the years I have followed or been involved with many such cases where issues have been unresolved for decades. Here are five:

  1. Kathryn’s story outlines how Kathryn, after a shocking life of abuse and trauma, dobbed in by a vindictive ex-partner, was imprisoned for the so-called crime of relationship fraud. Her children’s lives were devastated and her health lost. She is now a seriously ill beneficiary after fighting MSD for 17 years in the courts : they insisted that on release from prison she must repay $115,000 out of her meagre benefit.  MSD spent hundreds of thousands of dollars fighting the case to prevent the debt being wiped. In 2019, the debt still hangs over her and is used against her when she needs to argue for hardship assistance from Work and Income. When she dies it will deplete her tiny estate, ensuring that her five children will get nothing. Government could wipe the debt tomorrow but has turned the other way.

  2. And then there was Ms F who was investigated after an ex-partner vindictively dobbed her in, alleging she was not declaring income. This entailed an eight-year battle in the courts for her to establish the bleeding obvious, that loans are not income and she should not have a $127,000 debt. This landmark case has not resulted in a wide investigation of injustices for other beneficiaries who have been treated similarly, or any assurance that the state is even interested in clarifying the legislation.  Nor has the nasty practice of encouraging dobbing in, especially when by ex-partners been denounced. So much for the politics of kindness!

  3. Then there is the CPAG legal case against discrimination in Working for Families  begun in 2002, and finally heard in the HRRT after 6 years of fighting to establish the right to take the case.  In the 2008 decision the judge found the IWTC to be discriminatory but let the government off the hook with weak arguments about justification. After various appeals, an inadequate ruling from the Court of Appeal saw CPAG take the issue into the court of public opinion rather than continue the expensive battle with the same narrow legal setting up to the Supreme Court. By 2019, the discrimination had cost the worst-off families in New Zealand an accumulated sum approaching $8-10 billion. Is it surprising that child poverty is so entrenched?

The CPAG case proceedings played a big part in keeping child poverty on the public and political agenda.  In the 2011 elections four opposition parties, including Labour, had a policy to remove the In Work Tax Credit discrimination against income tested beneficiary parents. Labour has not talked about it since, except to shunt a review of Working for Families off to the Working Expert Advisory Group.  Ultimately the removal of this discrimination is inevitable, because it is blindingly obvious that this will provide a very cost-effective way to help meet Government’s child poverty reduction targets, but the harm to children of years of neglect by politicians cannot be readily forgiven.

  1. In March 2018, a number of superannuitants affected by the spousal provision of section 70 of the Social Security Act finally had their week in the HRRT. But the decision from the HRRT could be another two years away and even if it finds for the plaintiffs, nothing will happen without government action. Groups like Retirement Policy Research Centre and the Retirement Commissioner have complained about this outright discrimination in the public arena for the past decade. Privately the politicians agree. In 2015 Jacinda denounced it and described it  in parliament as a human rights violation. In early 2018 action was promised, there was supposed to be a review from MSD and an announcement in November- then there was talk of a cabinet paper in December, but not a whisper by early February 2019.  Nearly two decades of inaction.

  2. The latest outrage, the case of Maree Hennessy, a parent on her own with two young children, further illustrates the neo liberal obfuscation and the impotency of the HRRT. She had few resources and had been supplementing her benefit with a small part time job. She had an accident in 2000 that forced her to stop work completely in 2002. That meant she should have been entitled to some earnings-related compensation. After a long 8 years battle with ACC, she was awarded a gross amount of $89,000 in backdated weekly compensation, which after being treated as income and her benefit abated should have given her $40,000 or $5,000 for each of these 8 years. Except that she wasn’t given this at all, but only a token $576 or just over a $72 for each year, as her ACC was deducted dollar for dollar from her benefit because of a wrongheaded principle that says you can’t have benefits from both Work and Income and ACC.

It took five years for Maree’s case to be heard in the HRRT. The decision, finally delivered recently is a declaration that this is indeed unlawful discrimination. But after nearly two decades since the accident, in 2019 she will still get nothing because: “But the government department can’t stop enforcing the law until the wording of the Social Security Act is changed.” At least the Government conceded the case avoiding further court appeals but in the meantime her dollar for dollar abatement has “caused years of severe financial strain for her and her family.” Greg Robins, a senior solicitor at the Office of Human Rights Proceedings claimed it was an important landmark decision: “It is disappointing that the abatement can’t be reversed, but we are pleased she has won a clear declaration about the Social Security Act 1964 and the law that replaced it, the Social Security Act 2018.”

That is sweet comfort for Maree.  MSD’s deputy chief executive of service delivery, Viv Rickard, said “For those of our clients who are receiving income support from us and compensation from ACC, we are unable to make any change in practice despite the tribunal’s finding…. The Minister has been advised of the situation and tabled a report in the House on this issue on 20 December 2018. MSD will provide further advice to the Minister as required.”

Further advice, oh please! And surely not from the MSD who have argued in many of the cases discussed here for all the archaic features of the SSA as if they were ordained and set in stone. Clear and immediate decisions with adequate recompense are required forthwith.

 

21 COMMENTS

  1. Christ, what a depressing read. Made all the worse because of Labour’s inaction and Green silence/complicity in this gross Monty Pythonesque delivery of state “support”.

    If Labour and the Greens can’t fix these Kafkaesque situations then we’re truly fucked. No wonder the poor, powerless, and dispossessed don’t vote. Why should they?

    • I understand why they don’t vote. I mean, when you’re desperately scrambling to figure out where the next meal is coming from, election hoardings probably seem both irrelevant and offensive. But I wish they would, if only because it would give National and Act nightmares for decades to come. “Simon… a lot of people are voting this year. A lot of people who don’t like us. I fear we may be fucked, Simon. Utterly, irredeemably fucked.”

    • Yet if they dont vote and make their voices heard nothing changes. In the meantime wealthy superannitants are doing very well and are a powerful voting block for the status quo.

        • I know you guys don’t like Trump but if he had of taken in what the polls where saying, that Trump was a no chance, instead of just barreling through like a bull in a china shop, we might of had a different president.

  2. Dr Susan St John.

    https://www.nzherald.co.nz/hawkes-bay-today/news/article.cfm?c_id=1503462&objectid=12201629

    http://www.scoop.co.nz/stories/AK1902/S00173/napier-port-projecting-187-per-cent-increase-in-traffic.htm

    https://www.pce.parliament.nz/media/pdfs/Hawkes-Bay-Expressway-Noise-and-air-quality-issues-June-2005.pdf

    Yes we are having the same ‘Kafkaesque-like experiences’ as “adversely health affected residents” in Napier now suffering under truck gridlocked toxic affects of trucks emitting noise, vibrations and air pollution and tyre dust reaching the inside/outside our homes and residential communities as truck freight is increasing over 12% a year and now reaching over 2600 truck trips to and from the Napier port every single day and that 12% annual increase will double to 25% every year from now on claims the Port CEO.

    IN HB Today our local paper, the Napier Port CEO has last week stated in our local press that truck freight to and from the port will increase another 187% by 2027 (or in eight years time).

    This means another 25% increase every single year massively increasing truck numbers every year from now on.

    Residents now are forced either to take sleeping aids or wear ear plugs and listen to radios all night to drown out the noise from trucks keeping them awake.

    Medical studies are confirming that living in this environment is causing public health damage to residents as the truck traffic increases and our community group asked NZ Human Rights for assistance and support and the NZ Human Rights said they cannot get involved with public health traffic issues!!!!!

    Question to you is;

    “Why are the NZ Human Rights Commission not able to defend ‘our human rights in NZ’ from exposure to toxic emissions from ‘industrial activities’ being forced upon us from private companies operating freight movements through sensitive residential zones”?

    Industrial activities were never sanctioned to become permitted in our residential areas when all those ‘sensitive residential zones’ were established and designated for Napier residential zones.

    Under the RMA under section 7 and 31 our “amenity values” have been destroyed and consequently our health risks and human rights have been violated.

    So these ‘industrial operations’ of road freight now travelling through our sensitive residential zones are contravening our human rights now.

    Why are NZ Human rights not protecting our human rights?

    We approached the Minister of justice office in Wellington for assistance and Andrew Little’s PA David Hawkins told us in a phone call that the minister cannot become involved with this matter.

    So we are effectively being forced to flee from our homes to prevent becoming damaged and sick and disabled, with no recompense for all those damages?

    • Cleangreen this is so sad and illustrates that our appeal processes are not working. Our HR legislation needs a complete overhaul. Wed need a visionary driver of this like sir Own Woodhouse was with ACC.

  3. “I heard the inevitable gunshot with a sense of relief; now we could all go home. Kafka created so well an aftertaste of utter pointlessness and unredeemed frustration with the unrelenting irrationality of state behaviour.”

    Hear, hear.

    As usual Susan you speak truth to power…but you forgot to put the Ministry of Health on the list of government departments lacking in human rights awareness.

    The Family Carers case having been nearly two decades in the mire of legal debate still awaits a Government who will actually address the found discrimination and breach of the Human Rights Act and repeal the nasty piece of legislation that was the Previous Incumbents, response.

    https://publicaddress.net/access/the-family-carers-case-here-we-go-again/

    Yes, this government settled our case. Was it ‘clean’ and ‘transparent’ and did we feel vindicated and that the discrimination against us had been honestly acknowledged?

    Confidentiality agreements and all that prevent me from answering my own question, but your comment “..can’t be good for democracy.” rings true.

    My partner and I have vowed never to vote again.

    Thank you for your timely piece.

    • Thanks ROSEMARY MCDONALD you have this nack for banging the nail on the head.

      Can I ask if Dr Susan, felt it was just a little too close to home to talk about the MoH? Or it was just to frustrating for Dr St John to talk about it? That said, and please don’t be limited by my questions Dr St John, again you have raised great points, and produced a good read.

      I’d go further and suggest no ones goes down the roads you mentioned. As the state has been effectively destroyed by years of ideological rigid neo-libs – time to try new approaches.

      • Dear Adam
        I know there are many other very worrying examples and it is good to flush them out. The carers one is a very important one to be reminded of. Not sure what you mean by ‘too close to home’ though?
        I am included to agree with your last comment that people should not pursue justice through the HRRT any more. In the case of the spousal provision, for all the effort involved and the personal cost, the hearing was a disgrace and the fact a decsion may be 3 years on seems to have just given government permission to ignore the problem

    • Rosemary McDonald
      Thankyou for reminding us of that apalling case. Yes lets add the MoH to the sorry list.

      Where are the principled polticians who can provide some leadership in this?

    • And the sleepover case, too, although IHC had a hand in the filth that went on there. That said, the government could’ve easily said that the contracts with IHC were flawed because the true cost was not factored in. Instead the government let IHC treat it as an employment matter where the workers were successful all the way to the Court of Appeal, and then on the basis of an appeal by IHC to the Supreme Court the government signed off on a watered down remedy package that excluded a whole bunch of workers. While IHC should’ve gone to government to renegotiate the contracts (and it was surprising they didn’t given IHC is the first to bleat on about an underpaid workforce – their hyprocrisy was astounding), government just sat by and let it all happen.

  4. The whole regime of MSD and WINZ is indeed Kafkaesque:
    https://nzsocialjusticeblog2013.wordpress.com/2018/05/23/social-security-benefit-rates-in-new-zealand-set-at-will-by-governments-ignoring-socio-economic-realities-and-evidence/

    https://nzsocialjusticeblog2013.files.wordpress.com/2018/05/social-security-benefit-rates-in-n-z-set-at-will-by-govt-ignoring-evidence-nzsjb-23-05-18.pdf

    While they ADVISE government on policy and what may need to be done and changed, they say, they have NO say in benefit rates, same as other things, washing their hands in pure innocence.

    And governments tend to do what they see fit, rather rewarding career ‘advisors’ that deliver reports and advice that suit the government of the day. So they get nice salaries and perks:

    https://nzsocialjusticeblog2013.wordpress.com/2017/05/01/msd-releases-oia-info-on-dr-bratts-and-other-senior-health-advisors-high-salaries-nearly-4-years-late/

    https://nzsocialjusticeblog2013.files.wordpress.com/2017/05/msd-releases-oia-info-on-health-advisors-salaries-nearly-4-years-late-post-30-04-171.pdf

    So I expect NOTHING of substance to come into force under this government, after having their working groups deliver reports. There will be advice again, that taxpayers’ concerns do also have to be considered, so forget benefit increases.

    Perhaps also forget the matters mentioned in this post, for retired persons, same as for the docked benefits of sole parents, who fail or refuse to name the father of their child.

  5. In this matter it can be seen just how dishonourable our leading government politicians are.
    And the “cover up” is impressive.
    The Labour Party, NZ First and Greens leaders are all complicit under a cone of silence.
    In spite of the fact that so far there been no in depth media investigation, it is to be hoped that eventually the truth will come out.

    • There is an astonishing lack of empathy in high places. Can well paid officials simply not imagine what it is like not to have a secure income

  6. great piece Susan, know exactly what you are talking about, my partner and the then Auckland People’s Centre took a case in the 90s, over Special Benefit being applied as per WINZ branch policy, instead of what the Act said…well the threats and intimidation towards individuals involved, from WINZ lawyers were breathtaking and scary–the case was ultimately successful many years down the track, but again could not actually be applied in many real world situations

    1964 legislation is totally out of sync with how society operates in 2019, regarding relationships, child raising, and in particular the precarious state of existence known as “work”, many have never and will never have stable, full time paid work

    Abatements, stand downs, sanctions, all need to be wiped immediately, but the neo libs at the top of the State Sector want to retain WINZ/MSD/ACC as a punitive mechanism, and the politicians indeed seem captured by middle class understanding–zero empathy for the NZ underclass created by their predecessors–todays poor and alienated are the children of Roger Douglas and Ruth Richardson as one commentator put it!

    • Tiger Mountain- so well put thank you– the lawyers and legal process are very scary and as you say RR and RD have left a terrible legacy.

  7. Part 1A is about discrimination, not unlawful discrimination. Part 2 is about unlawful discrimination. That said, if the issue being considered under Part 1A involves something other than an enactment the HRRT can make “any order”. If it’s about an enactment the only rememdy available is a declaration of inconsistency. If Part 1A was about unlawful discrimination the HRRT would have the power to strike legislation down, and we’d have a kind of supreme law situation. While many have argued we should move to that sort of arrangement, Geoffrey Palmer for example, that hasn’t happened yet.

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