The findings can be found here:
This is arguably a law that will discriminate against a group of already disadvantaged persons. Section 19 of the NZBORA prohibits discrimination on any grounds and in this sense it is not limited in the same way as the Human Rights Act 1993 which specifies prohibited categories of discrimination. If employers are brought under the NZBORA then individuals may be able to bring a claim against the employer that the compulsory drug testing is discriminatory since a job applicant that is not on a work tested benefit does not have to undertake a drug test and may in fact refuse to undergo the drug test without it affecting their economic position. So if an employer only compulsorily drug tests beneficiaries then beneficiaries could potentially bring a claim under the act of being discriminated against by virtue of their economic position.
This argument tends to assume that people who detest state intrusions have something to hide. Whilst in many cases this may be true, in many others it will be untrue. The problem with asserting the Proposition is that it fails to take into account the breadth of circumstances in which the Police or State could execute their search powers if the laws protecting individuals were not in place. Additionally, the Police do not have the power to undertake searches without statutory authorisation or without a valid warrant. Warrantless searches (where the Police rely on statutory authority alone) are most commonplace in respect of the Misuse of Drugs Act 1957 and offensive weapons in public (Crimes Act 1961), however, even these statutory provisions have certain conditions that must be met. The qualifying ground is typically ‘reasonable grounds to believe’ which is not the same as ‘mere suspicion’.
Consider the Proposition in relation to a couple engaged in a very intimate situation in their own home and the Police bust in the doors and conduct a full unlimited search of their property without a warrant and on grounds of mere suspicion. The couple would likely feel that their privacy had been violated. According to the Proposition, this would be okay if the couple had nothing to hide. Say they did have nothing to hide; does this make the search okay? In my view, it is not okay and I doubt that many people could justify this position.
Police/State powers are limited to protect the privacy of individuals and the arguments suggesting that persons on benefits should submit to drug tests to prove they have nothing to hide also goes against the longstanding presumption of law that everyone is innocent until proven guilty. Compulsion transfers the burden of proof to the person subject to the drug test. While the burden is transferred in other scenarios, for example, intoxicated drivers and compulsory breath tests, the difference is that it is in the public interest for drivers to be tested because of the immediate risk they place on the safety of other road users if they are under the influence of drugs and alcohol. A drug test at a job interview is a precursor to persons propensity to take drugs which is an inaccurate measure of a person’s propensity because there can be no guarantee that even if a person passes a drug test that they will not use drugs on the job. The difference between a job interview drug test and compulsory breath testing road users is simply the actual risk to public safety at the relevant time. To extend this point, a person who becomes drunk after passing a roadside breath test is clearly a risk to other road users while operating their vehicle but their propensity to drink drive was not picked up in the breath test, and this will be the same for drug using job applicants who either make a concerted effort to ensure they will pass a drug test at a job interview or may become involved in drug use at a later time during their employment.
So how this policy intends to manage welfare dependency by drug testing work-tested beneficiaries is beyond on me. Only random drug testing in the workplace will actually determine if an employee is not ideal for the role due to drug use. However, once a person is employed, they are no longer a work-tested beneficiary and cannot be compelled by law to submit to the test, so not only is the proposed law unnecessary, it is also not very helpful for employers to determine if job applicants are likely to take drugs during their employment.
Currently, employers may request that applicants undergo a drug test and refusal will likely result in non-consideration for the role. In my view, the policy proposed by the government is unnecessary, since employers can already choose to drug test job applicants. The incentive to not take drugs for those who might be inclined to do so is the possibility of being excluded for consideration for the job. Suspending or cutting the welfare payment will have far more serious effects on those dependent on a person who is receiving welfare. As already stated, Employers can request drug tests already so there is no need for the compulsory testing of beneficiaries and there can be no justification to limit their s21 right on this basis. Arguably, the purpose of the compulsory drug testing is simply to further demonise beneficiaries. And perhaps the aim is to create such a negative stereotype of beneficiaries that this will deter people from signing up for benefits in the first place. The policy is aimed at managing welfare dependency, but the assumption is that beneficiaries become welfare dependent because they spend their money on drugs. This is an unfair and unqualified view of persons receiving welfare. Additionally, similar overseas policies have found that the cost of such programmes outweighs the number of welfare recipients who are actually drug users.