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.  

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3 comments

  1. Very valid point – and not one that comes to mind easily for many people (including myself). I often hear people complaining about their invasion of privacy and rights when it comes to drug testing – but they've never pointed out the fact that employers already have this right, so you're right – no new legislation is required. The other statement I often hear (and with which I generally find myself agreeing) is the whole 'if they have nothing to hide then they don't need to worry'. By the way – I looked through the list of 'profiles' and most I am sorry to say I don't know what they mean. I chose anonymous just because that option was obvious to me. I hardly ever use facebook, can't be bothered with twitter or other similar applications. I imagine if I did, I wouldn't bother with other things that matter more to me at the moment.

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  2. Thanks for your comment! I am in the middle of writing about the point you raise "if they have nothing to hide then the don't need to worry", this in itself raises more issues in respect of privacy as well as what the law is and the level of intrusion the state can justifiably impose on individuals.

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  3. Firstly I have to apologise for the referencing and length of my comments. This is based on a Business Ethics paper I am studying.
    Does the policy infringe on a beneficiary’s privacy rights? To address this we must understand the rights under the Privacy Act 1993. A simplified view is that the act controls how agencies collect, use, disclose, store and give access to personal information (Commissioner). The part in this case that is important to us is the collection of information. Legally, personal information, such as a drug test result, can only be collected if it is relevant and necessary to the agency’s function or activities. This law is applicable to everybody no matter what their profession or situation is.
    As stated in the article pre-job drug testing by employers is already in place. This is non-discriminatory as it applies to anyone applying for the job. The employer is responsible for providing a safe workplace under Health and Safety in Employment Act 1992. They may be exposed to liability by the role advertised and therefore have a right to prevent harm to others by requesting a drug test. This is likely not the only measure they will go to ensuring the right person for a job where they have a moral duty to protect others from potential harm being caused.
    Under the policy people who refuse a pre-job drug test or fail a pre-job drug test and/or refuse to stop using drugs will have their benefit cut by 50%. After 30days a further test will be required. If they fail or refuse a second time, they will have their benefit suspended until they agree that they will provide a ‘clean’ drug test within 30 days. If they do not do this their benefit will be cancelled (Beehive.Govt.NZ).
    It is questionable that WINZ is within the privacy act definition that collection of drug testing data is relevant and closely linked to the agency’s function or activities. Justification for drug testing is to prevent harm; WINZ could say that they are trying to prevent harm in advance of a drug user applying for a job? However drug taking is an enforceable crime that is policed and then punishment is meted out by our court system. WINZ is not only invading a beneficiary’s privacy but the treatment dictated by WINZ is also an invasion of liberty (Open Polytechnic, 2014).
    The beneficiary is now in a position of having to choose between undergoing the test (and passing) or forgoing their benefit. They have at this point in essence a contract with WINZ; they have completed an application and have been accepted as an eligible beneficiary. This would infer informed consent (DesJardins & Duska, 1987). However as noted by DesJardins and Duska, drug testing is only the correct means if it puts an end to the harm and if there is no better alternative (DesJardins & Duska, 1987). A drug testing policy that requires employees (beneficiaries in this case), with a contract, to take a drug test or lose their benefit would appear coercive. Coercion in this case meaning firstly to get a person to choose an option they don’t want and then secondly issuing a threat that if they don’t choose the option they will be worse off (Boatright, 2008). Being placed in a coercive position does not allow the person true free consent (DesJardins & Duska, 1987). Even though there is an implicit contract, the coercive nature of it renders it ineffective due to its breach of the person’s basic human rights as allowed by the Bill of Rights Act 1990, notably a person’s right to privacy (Open Polytechnic, 2014).
    It also appears that a drug problem will only come to light if a person is put forward for a job that requires drug testing, once identified that person falls into the WINZ drug testing regime. It is a narrow view to assume that somebody who is a drug user won’t just stop to pass a drug test, just to start up again after being appointed to the job. I believe the goal of this policy is not to manage welfare dependency as stated in the article but is aimed at attempting to solve drug abuse by beneficiaries; this is discriminatory as there is a much wider drug problem than just beneficiaries. This is also not the mandate of WINZ. It would seem there must be a better way to achieve what should be the overriding goal of WINZ to have less beneficiaries and more happy content individuals working for a living.

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