Towards banana republic status
Labour received some stick in comments on my previous post for its stance on the Social Welfare (Commencement of Benefits) Amendment Bill. It is unfortunate but there was some scepticism about how it would vote. I am pleased to note that Labour opposed the bill strenuously and attempted to improve the bill behind the scenes although these attempts were eventually futile.
To recap the bill’s purpose was to change the definition of stand down period in the Social Security Act 1964. The law as enacted in 1998 clearly stated that relevant benefits started on the day the stand down period ended but administrative practice started those benefits the day after.
The previous law was paradoxically also passed under urgency. A select committee process is important so that issues and mistakes in the drafting can be fixed.
The use of urgency on this occasion is, to be frank, appalling and a constitutional disgrace. The problem was discovered 18 months ago. The bill is very brief. If there was such a problem the bill could have been introduced months ago and a full select committee process gone through.
The use of urgency is especially appalling because the bill has retrospective effect. The right of beneficiaries to insist that the law be applied has been taken away from them and instead the current view of the executive on what the law should say has replaced the clear and unambiguous words of the Act.
My view could be discounted because I am a Labour aligned left wing blogger. But David Farrar agrees. His comment about the bill was:
I would have though if practice doesn’t match the law, then it is the practice you should change – no[t] the law.
Even Cameron Slater is opposed to the Bill. He said:
You might expect me to take the position that beneficiaries don’t deserve the money, and they shouldn’t get it. But that’s not on. A deal is a deal…
You can’t just legislate your way out of it when you made a mistake. What sort of example does that set?
And for an academic view of the Bill Otago University Law Lecturer Simon Connell says this:
Retrospective legislation is inconsistent with the rule of law. There is nothing especially compelling about this problem so as to justify the evil of retrospective legislation (indeed, the especially evil evil of retrospectively stripping citizens of a right conferred to them under the law). The solution to this problem is to amend prospectively, and to meet the Crown’s obligations. This is how the rule of law is supposed to work. Any attempts to present this retrospective legislation as simply clearing up a problem ought to be opposed. Waldron noted of purportedly “curative” retrospective legislation that:
Often it is a way of covering up or avoiding the embarrassment of administrative irregularity — pretending it did not happen, and depriving the citizen of the remedies that would otherwise be associated with its occurrence.
That is what the Government is seeking to achieve here. It is deplorable.
The justification for the bill, that there would be lots and lots of people claiming money, had never been tested. There was no regulatory impact statement, and the
Departmental Disclosure Statement is almost completely bereft of meaningful detail.
Carmel Sepuloni attempted to have the bill amended so that a six week period would be allowed for all intending applicants to apply for arrears. Labour would then have supported the bill. It would still suck, just not as much as before. At least individuals would have had an opportunity to file their application. Instead of this the rights of an individual to be treated in accordance with the law as it existed at the time has been retrospectively taken away under urgency.
One of the roles of the opposition is to improve things and if this had been achieved then all strength to them. That this Government refused to allow even this modest change reinforces how appalling the measure is.
The really sneaky thing is that the Government tried to slip the change through under separate “remedial” legislation. Kay Brerton spotted the attempt and submitted against it. But for her vigilance and perseverance the change may have been slipped through without notice. Interestingly the drafting under that bill did not have retrospective effect. Perhaps this was to be introduced by way of SOP.
To finish here is film of some impassioned speeches by Carmel Sepuloni and Jan Logie about the bill.