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.
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.
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.