July 2015 Māori Law Review
Māmari Stephens, senior lecturer in law at Victoria University of Wellington and a consultant editor to the Māori Law Review, reviews developments over the last year in welfare law affecting Māori.
Welfare law continues to face almost constant amendment. To this end there have been several measures put before Parliament in the last year. The first of these of relevance to this review period was the Social Security (Fraud Measures and Debt Recovery) Amendment Act 2014. As stated in the Explanatory Note (available at http://www.legislation.govt.nz/bill/government/2013/0098/3.0/DLM5024902.html), the main aim of the measure is:
…to strengthen further the approach to relationship fraud by making spouses and partners, as well as beneficiaries, accountable for fraud. It will also ensure that the Ministry of Social Development (MSD) recovers debt more effectively, while also enabling it to exercise sensible discretion in managing recovery in individual cases.
Of particular note is the imposition of a duty upon the Chief Executive to recover debt under s 86(1), whereas prior to this the Chief Executive had a level of residual discretion to recover such debt, as affirmed in the case of Osbourne v Chief Executive of the Ministry of Social Development  1 NZLR 559.
There are now only some very limited exceptions that prohibit recovery:
- if the debt was caused wholly or partly by an error to which the debtor did not intentionally contribute, the debtor received the sum in good faith and changed his or her position, and it would be inequitable in all the circumstances, including the debtor's financial circumstances, to permit recovery;
- those whose debt has been suspended or remitted under regulations made under section 132G, (being the Social Security (Debt Recovery Suspension) Regulations 2007);
- where the chief executive has made a written determination under a new provision, s 86(1A)(c) that the relevant debt is uneconomic to recover; or
- under 86(1A)(d) recovery of the debt concerned is not required because of written authorisation from both the Minister and by the Minister of Finance for public finance purposes that the relevant debts that are to be written off.
In addition, rights of appeal under the Social Security Act 1961 have now been a little further restricted under the new s 12J(3). As explained in the Select Committee report, this provision means that a decision or determination relating only to matters of the temporary deferral, rate, or methods of debt recovery from another person is not considered to affect an applicant or beneficiary. Such beneficiaries are therefore no longer able to appeal under new s 12J(1) against such decisions. The Social Services Committee report is available at: http://www.parliament.nz/resource/en-nz/50DBSCH_SCR6102_1/2bb404e07fe4baa7264e23505cfc630b68ea1819.
This amendment overturns some more established case-law whereby an applicant or beneficiary used to be able to appeal under s 12J(1) to the Social Security Appeal Authority against a decision or determination that relates only to a third party’s entitlement or liability in that other person's own right, if the applicant or beneficiary is affected by that decision or determination. The effect concerned was restricted to that being economic in nature: Wharerimu v Chief Executive of Department of Work and Income  NZAR 467 (HC).
Further amendments are awaited. In addition to the forthcoming rewrite of the Social Security Act 1964, further amendments are awaiting introduction. In October 2014 the Speech from the Throne identified that welfare reform continued to be high in priority for the current National-led government.
The Government is committed to helping more people get off a benefit and into work. It will work to reduce the number of people receiving a benefit and reduce the lifetime costs of the welfare system. Legislation will be introduced to extend the Youth Service approach to 19-year-old sole parents, and to many other 18- and 19-year-old beneficiaries who need more support, or who are at risk of long-term welfare dependence. (See https://www.beehive.govt.nz/speech/speech-throne-2)
Other matters are proceeding without legislative or regulatory input, in further development of the ‘investment’ approach as implemented from 2010. In January 2014 a three year pilot scheme was announced whereby Work and Income announced successful contracts established with a number of agencies, including Australian company Advanced Personnel Management that will make between $2250 and $12,000 per employment placement for every person with a mental health condition in Auckland provided that person stays employed for a year.
Māori and social development
Policy affecting Māori welfare outcomes has also been the subject of further development, none of which is reflected in legislation. This affirms a perception that the initiatives most relevant to Māori collectives, relating to achieving better Māori welfare outcomes, are considered matters of policy reform, not law reform. As also stated in the Speech from the Throne:
As agreed with the Maori Party, ongoing investment will be made in Whānau Ora. The Government will continue to have a focus on poverty, especially child poverty, and will coordinate cross-government activity in this area through the Ministerial Committee on Poverty.
Whānau Ora is an approach to social service provision created in response to evaluations that Māori were not served well enough in delivery of those services. The concept of family well-being is at the heart of Whānau Ora.
Controller and Auditor-General, Lyn Provost issued an evaluation of the Whānau Ora policy approach on 1 May 2015. While acknowledging the success of the policy approach for many families, Ms Provost was highly critical of the disproportionate use of Whānau Ora funding for administrative purposes:
During the first four years, total spending on Whānau Ora was $137.6 million. Delays in spending meant that some of the funds originally intended for whānau and providers did not reach them. Nearly a third of the total spending was on administration (including research and evaluation). In my view, Te Puni Kōkiri could have spent a greater proportion of funds on those people – whānau and providers – who Whānau Ora was meant to help. (Whānau Ora: the First Four Years (The Office of the Controller and Auditor General, 2015) 4-5.)
In October 2014 I examined the development of the Services Management Plan as part of the Mana Motuhake Redress in the Tūhoe-Crown settlement. (See (2014) October Māori LR).
The implementation of non-legislated social accords has continued with the release by Te Hiku Development Trust of its wellbeing report (available at http://www.tehiku.iwi.nz/uploads/7/4/6/3/7463762/e-copy_- te_hiku_wellbeing_report.pdf). This report arises out of the Social Accord, reportedly developed at least in part as a result of the Crown's historical failure to ensure iwi were able to participate in social and economic development. Te Hiku O Te Ika - Crown Social Development and Wellbeing Accord was signed on 5 February 2013 by three of the five Iwi of Te Hiku in Northland: Te Rarawa; Te Aupouri; and Ngāi Takoto and relevant Ministers on behalf of the Crown. Ngāti Kurī signed on 7 February 2014. The Accord is appended to the Deed of Settlement signed between these 4 iwi and the Crown (as available at http://nz01.terabyte.co.nz/ots/DocumentLibrary%5CTeAupouriiDocSched.pdf). Ngāti Kahu has not yet signed.
As with the Tūhoe Services Management Plan, Te Hiku O Te Ika Crown Social Development and Wellbeing Accord occupies a curious position; neither in the Deed of Settlement of historical claims (but appended to it), nor in legislation. It is in many ways a relationship document, signed between the iwi and the Crown. As stated in the Wellbeing Report:
The Social Accord provides for a regular cycle of engagement between the Iwi, Government agencies and the Ministers who will oversee the relationship including:
- An annual Taumata Rangatira hui between the Ministers who are party to the Social Accord or whose departments have portfolio agreements and Te Hiku Iwi governance members
- A twice yearly Te Kāhui Tiaki Whānau hui between the departments' Chief Executives or senior staff and Te Hiku Iwi Chief Executives or senior staff
- The establishment of Kaupapa Cluster groups, which will have ongoing engagement in relation to particular kaupapa/specific work streams and
- Regular meetings of the Secretariat, which comprises national and regional representatives from the Crown departments and Te Hiku Iwi, each providing administrative, research and analytical support to the implementation of the Accord. (Te Hiku Development Trust Te Hiku Well Being Report Te Oranga o Te Hiku (Te Hiku Development Trust, 2014) 18)
The 2014 Wellbeing Report was written after consultation with 1250 iwi members, and is described (at p 10) as intended to provide a:
‘snapshot of the rohe based on existing statistical data accessed from a number of sources. This baseline data will be used to measure progress towards improved Te Hiku well being at five-yearly intervals.
Te Hiku Make It Happen project has been described as a ‘community-led approach […] designed to enable public services to genuinely help citizens raise their aspirations and build people’s capabilities, without creating reliance on the state.’(Sheridan Waitai http://www.superu.govt.nz/news-and-events/superu-evidence-action-conference-2015http://www.superu.govt.nz/news-and-events/superu-evidence-action-conference-2015)
The role for the state has not been entirely ignored though; ‘Te Hiku has been and will continue to meet regularly with Government Departments to ensure they are meeting their obligations to remove disparities and create socio-economic equity for our iwi, hapu and whanau” (http://www.tehiku.iwi.nz/social-accord.html). However, in 2013 the then Minister of Social Development, Hon Paula Bennett had challenged Te Hiku iwi, stating:
My vision is that you do the work and I give you the resources to do that. I bring you the power of my office, and happily and humbly hand it over to you. Look beyond the now; what is the vision? The way it's always been done doesn't have to be how it's done now… (‘Te Hiku Handed a Blank Sheet of paper’ The Northland Age (Tuesday 23 July 2013) available at http://www.nzherald.co.nz/northland-age/news/article.cfm?c_id=1503402&objectid=11105469)
Of this statement, Te Runanga o Te Rarawa chairman Haami Piripi, observed that he had:
no doubt that the offer to devolve decision-making that was traditionally jealously guarded by politicians and civil servants offered enormous opportunities.
Thus, Te Hiku Make it Happen Project sits alongside other social accords and initiatives such as the Services Management Agreement of the Tūhoe Treaty settlement, also concluded in 2014. This project was developed in negotiation and is moving into its implementation phase, reportedly with the support of government agencies. The Make it Happen Project envisages Māori communities and families of the North seeking to exercise agency in the development of better welfare outcomes for Māori, although there is, as yet, a lack of detail as to how such outcomes will be achieved. This is because the Project is still in a data-gathering mode in order to inform the next steps of implementation. The Project appears to envisage a certain degree of limited autonomy, largely free of legislative control, to allow Māori collectives a degree of freedom within which to bring about better welfare outcomes for Māori.
Rather than isolated or merely ‘modern’ developments, this initiative will likely be yet another in a long line of attempts by Māori to exercise a distinctively Māori notion of welfare. How that notion is to develop in the face of or in conjunction with the existing benefit system has not yet been a matter of analysis.