Amicus Curiae: Teaching an Old Act New Tricks – The Social Security Legislation Rewrite Bill 2016

Content Contributor, Naushyn Janah

Major change is under way for New Zealand’s social security legislation. The Social Security Legislation Rewrite Bill 2016 passed its First Reading in May and is currently being reviewed by Parliament’s Social Services Committee. Following the Committee’s consideration of the Bill, it will then be reported to the House of Representatives in September. The Bill replaces existing social security legislation, including the Social Security Act 1964 and the Social Welfare (Reciprocity Agreements, and the New Zealand Artificial Limb Service) Act 1990.

The Bill is intended to make social security legislation more accessible, with Social Development Minister Anne Tolley describing it as a policy-neutral rewrite of existing policy that gives the legislation greater clarity, coherency, and consistency. Specifically, the Minister notes that the Bill is not intended to overhaul New Zealand’s social security system.  There are minor visible policy changes that are intended improve practice. For example, the orphan’s benefit and the unsupported child’s benefit will be merged to become the new Supported Child Payment.

A rewrite of New Zealand’s social security legislation is long overdue. Piecemeal changes to the original Social Security Act since 1964 have made it “awkward, disjointed and incoherent”. Notably, since the Act was written, 153 amending Acts have been passed, 214 sections have been repealed and only four of the original sections are unchanged. There are currently 523 sections within the Act, with s 69C containing more than 20 subsections. In Arbuthnot v Chief Executive of the Department of Work and Income, the Supreme Court criticised the state of the original Social Security Act. In the judgment, Blanchard J refers to the fact that the statute is “starting to show its age”. In argument, he compared the Act to a tyre of an old bicycle that had seen punctures and repairs to the point where there was now more patch than inner tube.

Although the Bill has been described as a technical rewrite, it is essential to recognise that it contains both intended and unintended changes that have very real effects on the lives of those who use New Zealand’s welfare system. It would be a missed opportunity if the proposed legislative change fails to confront some of the existing inequalities entrenched by the current legislation. Research done by the Canterbury Community Law Centre indicates that beneficiaries’ experience of the social welfare system is fundamentally coloured by the “stigma attached to being on a benefit”, including the associated frustration, humiliation, and sense of dehumanisation. These experiences only scratch the surface of the many barriers faced by those seeking benefits and assistance. The Bill fails to interrogate and challenge the provisions that uphold these barriers. Moreover, the Bill upholds the framework sanctions and obligations designed to shift beneficiaries into paid work. The sanctions fail to constructively deal with the poor social outcomes suffered by many beneficiaries.

There has been a movement in the community calling for the removal of certain such sanctions on the basis of the unnecessary distress and harm they cause. Clauses 176 – 178 of the Bill replace s 70A of the current Act. These sections uphold the imposition of a financial penalty in the form of a $22 weekly deduction in the benefit on parents who are unable to identify in law the other parent of the child. This sanction increases to $28 per week if the parent fails to identify in law the other parent after 13 weeks.  These reductions do not just punish the recipient of the benefit – most often single mothers – but also the children in households that are already unable to provide for their most basic needs. Additionally, such a blanket punitive measure fails to account for the myriad reasons why mothers may be unwilling or unable to identify the fathers of their children, including a fear of domestic violence. Instead, the section also further stigmatises single parenthood.

If the current Bill is not intended to make substantive legislative change, then perhaps there needs to be more systematic future reform of New Zealand’s social security legislation so that these inequalities may better be addressed.

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