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Child Support (Pass On) Acts Amendment Bill (Consistent) (Section 19) [2023] NZBORARp 11 (20 March 2023)
Last Updated: 29 March 2023
20 March 2023
LEGAL ADVICE
LPA 01 01 24
Hon David Parker, Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Child Support (Pass
On) Acts Amendment Bill
Purpose
- We
have considered whether the Child Support (Pass On) Acts Amendment Bill (the
Bill) is consistent with the rights and freedoms affirmed
in the New Zealand
Bill of Rights Act 1990 (the Bill of Rights Act).
- We
have not yet received a final version of the Bill. This advice has been prepared
in relation to the latest version of the Bill
(PCO 24527/2.14). We will provide
you with further advice if the final version includes amendments that affect the
conclusions in
this advice.
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act. In reaching
that conclusion, we
have considered the consistency of the Bill with s 19 (freedom from
discrimination). Our analysis is set out
below.
The Bill
- The
government currently retains child support payments made to sole parents on a
main benefit to offset the cost of the benefit.
- In
March 2022, Cabinet agreed to pass on child support payments paid via the
Department of Inland Revenue (Inland Revenue) to sole
parent beneficiaries, and
to treat these child support payments as income when determining entitlement to
a benefit or other assistance.
These changes were agreed to take effect from 1
July 2023. Passing on child support payments for sole parent beneficiaries is an
important step in overhauling the welfare system and removing differential
treatment as other beneficiaries (such as re-partnered
beneficiaries) are not
required to have their child support payments retained. It is said the change
will improve the financial position
of more than half of all sole parent
beneficiaries, and support the government’s efforts to reduce child
poverty, improve child
well-being, and improve the overall fairness of the
welfare system.
- The
Bill amends the Child Support Act 1991 and the Social Security Act 2018 to
enable this change.
- The
Bill also removes the requirement for sole parent beneficiaries to have their
child support assessed and collected by Inland Revenue,
instead allowing
voluntary or private arrangements to be agreed between parents. It also enables
child support payment information-sharing
between Inland Revenue and the
Ministry of Social Development as well as other ancillary amendments to support
this policy change.
Consistency of the Bill with the Bill of Rights Act
Section 19 – Freedom from discrimination
- Section
19(1) of the Bill of Rights Act affirms the right to freedom from discrimination
on the grounds set out in the Human Rights
Act 1993 (Human Rights Act). It is
generally unlawful to treat people in comparable circumstances differently on
the basis of a prohibited
ground, unless the difference is justified. The
prohibited grounds include family status which means, among other things,
“having
the responsibility for part-time care or full-time care of
children or other dependants”.1
- Discrimination
under s 19 of the Bill of Rights Act arises
where:2
- there
is differential treatment or effects as between persons or groups in analogous
or comparable situations based on a prohibited
ground of discrimination;
and
- that
treatment has a discriminatory impact (it imposes a material disadvantage on the
person or group differentiated against).
- Currently,
caregivers receiving an Unsupported Child’s Benefit
(UCB)3 are also required to have child support assessed
and collected by Inland Revenue, and the government similarly retains the child
support
to offset the costs of the benefit. The Bill does not amend any of these
provisions relating to UCB, and as such creates a distinction
in the way child
support is treated between sole parents and caregivers who are not parents. The
Bill arguably creates intra-ground
discrimination as it could be seen to draw a
distinction between those who have the responsibility for part-time care or
full-time
care of children or other dependants (i.e., family status).
- Nevertheless,
we do not consider the provision gives rise to discrimination because it does
not impose a material disadvantage on
a comparable group. We consider the UCB
and the sole-parent benefit to be sufficiently different in purpose. UCB
payments are paid
to the caregiver of a child whose parents are unable to care
for them. The UCB is intended specifically to cover the cost of caring
for a
child and is not affected by the income of the caregiver. In contrast, the
sole-parent benefit is intended to cover the needs
of the beneficiary and their
whānau as a whole, rather than a specific child, and the level of support
provided is determined
based on the income of the parent and their family
circumstances more generally. The objective is to support the household, rather
than the child. Given that UCB serves the same function as child support, i.e.,
the maintenance of a specific child, it is perhaps
more reasonable to retain the
child support than where the benefit being offset is directed at the wider
whānau.
- The
UCB may in fact be more analogous to the Foster Care Allowance (FCA). Both FCA
and UCB are paid to caregivers supporting a child
whose parent is unable to care
for them, but FCA applies to caregivers looking after children in state care,
whereas UCB applies
to caregivers looking after children outside the state
system. Child support may be collected on behalf of children in state care
(at
the discretion of Oranga Tamariki) but is not passed on to caregivers receiving
FCA. Instead it is given to Oranga Tamariki as
the receiving carer. If child
support were to be passed on to UCB caregivers as is proposed for sole-parent
beneficiaries, this has
the potential to create its own discrepancies in the
level of financial support that children receive depending on whether they are
in state care or outside it. We
1 Human Rights Act 1993, s 21(1)(l).
2 Ministry of Health v Atkinson [2012] NZCA
184, [2012] 3 NZLR 456 CA at [55].
- The
Unsupported Child’s Benefit is a weekly payment made by the Ministry of
Social Development to support the care and wellbeing
of a child or young person
who is unable to live with their parents or usual caregiver because there has
been a family breakdown.
The benefit is not means tested, but adjustments may be
made if a young person is earning or financially independent.
note
that Oranga Tamariki is conducting further work on the financial assistance
provided to caregivers of children who are unable
to be cared for by their
parents through the UCB, the FCA and the Orphan’s Benefit.
- Should
this Bill be found to limit the right to be free from discrimination we consider
that, having regard to the degree of deference
that is appropriately allowed to
the government when dealing with complex social policy issues, the limit could
be justified in terms
of section 5 of the Bill of Rights
Act.
Conclusion
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
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