Month: July 2012

Marriage equality – its a legal issue not a moral one

The Marriage Equality Bill has brought out the best in some people and the worst in others. There appears to be a failure in understanding about what this bill proposes.
The key feature of this bill is changing the legal definition of marriage to reflect the broader relationships prevalent in our society, it is not about whether or not you believe same sex couples should be allowed to get married. The definition would simply remove the reference to ‘between a man and a woman’ and would simply read ‘between two people’.
It appears that what has sparked the debate is the framing of the issue: whether same sex couples should be allowed to get married? Whereas, the more pertinent question is: whether marriage equality is a right that requires protection under the law ?
When we start asking questions about same sex marriage we elicit moral responses about a persons personal belief as to whether same sex marriage is right or wrong. On the other hand, when we ask questions about marriage equality we elicit responses that are formed on an objective basis. Marriage equality advocates for the legal recognition of marriage to be indiscriminate. If a person thinks marriage should discriminate on the basis of sexual orientation or gender then that position must be justified because any law that perpetuates inequality must have a reason that is justifiable in a free and democratic society, thereby requiring a rational basis for that discrimination. Arguments from morality, religion or social preference will not properly found a rational basis for justifying discrimination.
Additionally, we must remember that we have anti-discrimination laws under the Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990. These provisions are intended to protect minority groups from discrimination. It makes no sense then that those who oppose the Marriage Equality Bill are calling for a majority vote on this issue. This in effect renders our anti-discrimination laws meaningless. It does this by saying the majority can determine the rights of minorities which is inherently discriminatory and fails to fulfil the purpose of protecting minority groups.

Coronial Inquest: Kahui Twins

By now, the general public will be aware of the coronial findings issued by Coroner Garry (with two r’s) Evans. After some dispute from Chris Kahui and his Lawyer in the High Court, these findings have now become publicly available, albeit with some adjustments.
Whilst many are reappraising the opinions they held about Macsyna King, others are still hellbent on asserting her guilt in the death of these boys.
John Campbell’s interview received mixed reviews on various social media sites – those with open minds reflecting on their part in the demonising of Macsyna King, while others maintained their intial opinions still stand, and that she is ‘guilty as hell’.
Coroner Evans has determined that there is not a scintilla of evidence to suggest that Macsyna was in any way involved in the injuries that lead to the death of her twins. As the Coroner’s job is to determine all the factors contributing to unnatural and suspicious deaths, his determinations are made on all the available evidence from forensic reports, Police Statements, Expert evidence and so on. What the Coroner has revealed, is that after assessing all the information available to him is that the evidence suggests that that Chris Kahui contributed to the death of his twins.
The problem Macsyna now faces is that the many who still find her actions attributable to the boys death will continue to publicly discredit her. Its interesting that in spite of the detailed investigation into the twins deaths, by an experienced and objective adjudicator, with the full assistance of the Police who have an interest in prosecuting persons suspected of crimes,  Macsyna is destined for a life of verbal battering form the self-appointing public judiciary usually found wallowing in the  backwaters of talkback.
I’m not here proclaiming that she is a saint. I don’t know Macsyna or Chris. All I am saying is that the Coroner is the best position to determine her role if any in the death of the twins. If he found her actions to be negligent on the basis of the information he had available to him, then he would have said so. My point is that there is no rational basis for continuing to defame her character in light of the information now available to the public.

The findings can be found here:

Coronial Inquest: Iraena Asher

Public opinion and in particular the media attention in response to the findings of Coroner JP Ryan in respect of the accidental death of Iraena Asher are misguided. It is the role of the Coroner to ascertain the cause of death and any contributing factors to prevent future deaths in similar circumstances and to make recommendations where deemed necessary.
This process is inquisitorial and is not about apportioning fault or blame. The ‘unpopular’ finding relates to the Coroner’s determination that notifying emergency services may have prevented Iraena’s death and this finding was directed at the couple who assisted Iraena in her distressed and vulnerable state. The finding is not suggesting that the couple were required to do more than the good deeds that they did in fact do on that night, it is simply suggesting that there is a chance that if emergency services were involved the Iraena’s death may have been prevented. The point Coroner Ryan was making was for the benefit of the public, that if they find themselves in a similar situation then the best action to take is to notify emergency services rather than taking it upon yourself to provide care and assistance alone.  
Another point raised is that the Coroner ought to have given notice to the couple advising of the findings he intended to make public before actually making them publicly available. The Coroner is required to act in compliance with Coroners Act 2006 and as such it is at his discretion whether or not the findings will be made publicly available. Additionally, it is unlikely that Coroner Ryan intended for his findings to bring about the controversy that has transpired nor would he have come to his conclusions with the intention of causing any distress to the couple that he in fact commended for their actions in caring for Iraena on the night of her disappearance.
The last point I will address is the suggestion made by the media that the Coroner made these findings based on two days of hearing evidence. This is misleading. The investigation starts from the moment the death or in this case the report of the missing person is notified to the Coroner. Prior to the inquest, the Coroner undertakes a full and thorough assessment of the evidence and information provided by the various agencies, family members, friends and so on. The Coroner will then make requests for further information and will look to experts and anyone other person that the Coroner thinks may be able to assist in the inquiry. Coroner’s do not turn up cold to inquests. The finding that Iraena’s death was likely an accidental drowning is not just some assumption the Coroner plucked out of the air. It will be a rationally based conclusion in consideration of all the evidence he had available to him including the two days of evidence heard in the Coroners Court.

Population control

Apparently, a possible solution to our current environmental crisis is population control, that is, reduce our reproduction levels. I’m not convinced that this is a solution. Whilst population control seems like a logical response, it is in my view a flawed solution. Call me a cynic, but so long as there is a demand for products and services that continue to degrade our environment, commercial entities will continue to meet that demand. I am not here claiming to be the most environmentally friendly user of our planet, nor am I trying to justify my own indulgences, I am simply reiterating the point so aptly made in the Robots (2005) movie that captures the commercialisation of society: see a need, fill a need.

The argument for population control in short proposes that a reduction in people will lead to a reduction in our ecological footprint (EF) which will in turn assist in resolving our environmental crisis.   However, in a capitalist economy,  commercial entities and society in general will justify any increases in their EF on the basis that there are less people so there is more room to move in respect of their EF size. Consider an example using what I will call the ‘pay day mentality’:

X is a student. She gets a student allowance every Thursday. Its Tuesday and X has $20.00 in her bank account. X walks past a bakery at lunch time and contemplates buying her lunch which she calculates will cost her $9.50. X has a packed lunch in her bag. X decides not to buy her lunch since she already has lunch in her bag and she might need that $20.00 for something else.

Its now Thursday and X has been paid. X walks past the bakery, but this time she decides that she will buy her lunch, even though she has a packed lunch in her bag because she has more money in her bank account, and is not in the same position she was on Tuesday.

This is analogous to the ‘less people more room to move’ argument posited above on the basis of the following reasoning: when there is risk people will act more cautiously, and when the risk is lessened they will act more freely. Additionally, where it appears there is no risk, people act indulgently and this is the problem with asserting that population control will reduce the global EF, because people will assume once the population is reduced to a particular level, whatever that level might be, that there is no longer a risk to the environment and therefore, room to act indulgently.

Additionally, population control implicates a raft of other problems. Firstly, instituting a regime similar to China’s one child per couple rule as a global standard will indirectly affect the many minority cultures that form part of our global community and could potentially lead to the extinction of some of those cultures. Secondly, it raises issues as to whether the global standard of such control could justify forcing people to use contraceptives. Thirdly, it does not tell us what happens when a person has more than their ‘quota’ of children, that is,  do we resort to the practice of infanticide and  if so, is it the role of the family or the state to carry out the act of infanticide, or alternatively, will the state simply reduce the quota of other citizens to recalibrate the imbalance and how will the state decide who will be penalised because of another persons excess? Finally, it is unclear how we are to determine the desirable population size.
There are more questions posited here than answers, but the general point is to bring awareness to the many problems faced by supporting a population control policy as a means for resolving or attempting to resolve the environmental crisis.

Compulsory Kiwisaver or not?

Compulsory Kiwisaver (KS) is arguably a mechanism by which the least advantaged members of society will benefit in the long term, however, it has the inherent capability of making them suffer in the interim with no betterment for society in general. The Retirement Commission proposes that in order for KS to provide adequate cover for retirement, workers will need to contribute at least 10% of their incomes to make ends meet at retirement. For those low income earners with a student loan, the total compulsory deductions taken from their income will be 41.2% since the new payback rate for a SL is 12% and the PAYE tax rate for those who earn between $14K – $48K is 19.2% (which includes the ACC levy). These deductions will have a significant impact on low income earners while they work providing them with the barest of security at retirement.

Let me be clear, saving for retirement is not in itself a bad thing – but in my opinion the current structure of KS does not provide a great benefit to NZ as a whole and if it is to become compulsory, then it should have a wide ranging benefit since the levels at which we will be expected to contribute are significant.

The argument for compelling KS is that we will be better off. But will we? Could we do better? In my view, there are other options. Whilst I do not profess to be an expert at finance I would rather see a scheme where our contributions benefited society as opposed to propping up private corporations.  If KS was a government owned and operated fund our contributions would not be wasted on fees for private fund managers and propping up private interests and could instead be used to develop new SOE’s that could provide a solid dividend stream for the KS fund. In practice, I accept that this might be a bogus idea since I know next to nothing about finance and investment, but why are we so busy propping up private companies when we could be investing and getting a return on our contributions through a fund that contributes the betterment of NZ by providing local economic growth?

Additionally, by having a scheme that is owned by the people, we can influence policy as to how those funds are to be managed. Whilst we may be able to use the fund to develop SOE’s we might even be able to develop a scheme whereby any first time home buyer could withdraw a certain amount of their contributions as a deposit for a first home purchase. Home ownership has been a highly successful mode of preventing poverty in pensioners and we cannot just look at the income we will receive at retirement age, but must also consider the security of home ownership  In his book ‘Daylight Robbery’(2011), Ian Wishart makes the valid point that home ownership is more valuable to those at retirement age since around 80% of pensioners own their homes mortgage free, while only 3% are officially in poverty (2011, p.204). Additionally, that as was reported in the NZ Herald by Diana Crossan “Compelling us to divert more income to fund managers would put the Kiwi dream of home ownership out of reach of even more young New Zealanders” and proposed that perhaps the government consider ways of helping more young New Zealanders into home ownership (p.204).

The current KS scheme does some work to this effect; but it has an income threshold that precludes those who earn over the threshold from accessing their own funds for this purpose. This is, for lack of a better word, bonkers. How can a person be deprived of access to their own money to purchase a first home simply because they earn above the threshold? Did the government foresee how expensive it was to buy property these days? For instance in Auckland, the average home costs around half a million to purchase, and that’s just for a piece of crap with a courtyard if you want to live nearer the city, and a rundown hardy plank home with slightly more land if you want to live on the outskirts of Auckland.

So my point is essentially this, whilst KS could provide a benefit to all New Zealander’s, the current scheme simply operates to the benefit of private corporations and  provides those on low incomes with the barest of security for retirement. If KS becomes compulsory under its current structure, then it is an absolute dog. But if KS were used in a more innovative way for improving economic growth domestically, and considering the wider economic positions of pensioners, then we may stand a chance when we get to retirement age, and we might just be able to hold on to that kiwi dream of home ownership.

Drug Testing Beneficiaries: Part III

What is the effect on employers in respect of the compulsory drug testing of work-tested beneficiaries?
Employers may become subject to the New Zealand Bill of Rights Act 1990 (NZBORA) under section 3 which provides that the Act applies to any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.  
Irrespective of how a compulsory drug testing provision is written and then enacted it will either directly or indirectly empower private bodies to carry out a public function of compulsorily drug testing work tested beneficiaries, therefore, it could potentially give beneficiaries a right to litigate any breaches of the NZBORA in relation to that function  a right that does not currently exist. In effect such a provision would give the NZBORA horizontal effect, which is simply rights against private bodies where that body performs a public function.
It is likely that the public function of drug testing beneficiaries would be severed from the general business of the employer so only actions in relation to the drug testing would be litigious under NZBORA.
Another issue here is that, employers to avoid this risk may in fact choose not to even consider work-tested beneficiaries for any role, which does not address the issue of welfare dependency or assist those receiving welfare into jobs. In fact, it may even create a larger welfare dependency problem, since employers will not want to risk litigation and work-tested beneficiaries will be less likely to get jobs if they cannot even reach the interview stage.

What about inequality?
Work-tested beneficiaries are treated unequally under the proposed testing because they are the only group of persons who will be subjected to compulsory drug tests whether or not there is reasonable cause to believe they are taking drugs by virtue of their economic position. Effectively, they have certain rights taken away – a right that every other person in society has under the law, the right to refuse to take a drug test without consequence of worsening their economic position.  A job applicant that is not on a benefit can apply for a job and refuse to take the drug test and their economic position does not change from before they refused to take the test.

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.

The remedies available under the NZBORA are currently non-monetary, but this could change to redress a breach of a person’s rights since a declaratory judgment is unlikely to provide adequate redress to the breached right.
Treaty of Waitangi
In tikanga Maori, the body (including all its contents) is sacred and it belongs to the family, the ancestors and future generations to come. Article 2 of the Treaty of Waitangi protects taonga and for Maori this includes their tikanga.  Compulsory drug testing of Maori will compel the submission of sacred bodily specimens and could potentially give rise to a Treaty claim. Currently, a private body is not subject to claims under the Treaty, but this could change if they come under the NZBORA as performing a public function and in relation to the exercise of that specific function because they become an arm of the state.
Please note, that I am not saying that individuals will be able to litigate against employers or that they will be able to make Treaty claims, my opinion is that the proposed law to drug test work tested beneficiaries may enable these actions in certain circumstances where a prima facie case can be made out.
The main point of these posts on drug testing beneficiaries is to show that such a policy has many implications and is not as straightforward as it appears. It is clearly not well thought through by the policymakers and has more holes in it than the gaps its proposed to fill. Each of the points raised requires much more research and consideration, my goal was simply to raise the  issues that I could see as potentially problematic.

Drug Testing Beneficiaries: Part II

Another argument raised in respect of drug testing beneficiaries runs as follows: “people who have nothing to hide should not worry about being drug tested” (‘the Proposition’).

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.

Drug Testing Beneficiaries: Part I

The recent proposal for drug testing beneficiaries has had a mixed public reaction, and interestingly not a divisive reaction between the left and right as has commonly been the case in regards to other policy initiatives pursued by the government. This policy is more similar to a public conscience debate rather than any political allegiance. The basis of the arguments for and against tend to revolve around the expectations and conditions that should or should not be imposed on persons in receipt of welfare payments.
The most common argument in favour of the drug testing of work tested beneficiaries I have seen and heard is:
“Beneficiaries should not be spending their benefit on illegal drugs, or alternatively, that taxpayers should not be required to fund the drug habits of beneficiaries”
Whilst I agree with this point in principle, there is no evidence to suggest that persons on work tested benefits are more likely to purchase illegal drugs with their welfare payments and therefore there is no justification for subjecting them to compulsory drug tests in order to obtain employment or to retain their welfare payment.
The first issue here is that the enforceability of drug testing beneficiaries directly affects a persons right to be secure from unreasonable search and seizure, a right protected under s21 of the New Zealand Bill of Rights Act 1990 (NZBORA).
The right protected is a right to privacy. The Courts have a long held view that privacy intrusions involving searches of the person, which is effectively what a drug test is, must be a justifiable limit on the right  in a free and democratic society (s5 NZBORA).
The question here then is whether in a free and democratic society persons who are in receipt of welfare payments who have no known history of drug use can be justifiably subjected to a compulsory drug test in order to retain their welfare payment and; whether there is a justification for subjecting a person to a compulsory drug test when there is no guarantee that the person subjected to the compulsory testing will in fact get the job applied for.
Drug testing requires a person to submit to their bodily samples being taken and tested. Whilst this may not seem like a major intrusion given that the environment under which the drug test is likely to take place is probably no different from submitting bodily samples at a laboratory test for medical purposes, the issue lies in the compulsion to submit their bodily specimens rather than the voluntary nature of medical tests.
The fact that a person must undergo this testing, without reasonable cause, is not a justifiable limit on the right. The only reasonable cause for compelling a person would be if they had a history of drug abuse or known recreational drug use. Note though, that persons identifying as drug addicts are exempt from the compulsory testing, and the policy is aimed at recreational drug users and not the addicts who are in receipt of welfare payments but who are on non-work tested benefits because of their addictions.
If the policy were targeted at known drug users, then the reasoning here would be different since there is reasonable cause for doubt and an employer in that instance would have a right to know if the person applying for the job would be likely to be under the influence of drugs during the tenure of their employment with that employer.

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.