Policy, Decisions and the Law
by Stuart Birks
Director, Centre for Public Policy
Evaluation,
Paper for the LEANZ session of the
Presentation notes
My paper is wide-ranging, and there have been more developments in the
area since I wrote the paper two weeks ago.
Given the limited time, I will simply state as bluntly as possible that
the current situation in
I can only give a very brief sampling of the relevant information. There
is more in my paper and elsewhere.
24th May was the 150th anniversary of parliament.
In a special session, several MPs, including Michael Cullen, spoke of current
threats to democracy in this country, including that from judicial activism
(also discussed in the next paper in this session).
(If they are so concerned, we could ask why they have appointed an
openly activist judge to head the Family Court.)
Last weekend, the head of the Catholic Church took the extreme position
of saying that the country is becoming a “moral wasteland”.
There is a book by Sebastian Haffner, “Defying Hitler: a memoir”. He
writes of his experiences in
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While the future for
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I shall focus on three issues only, firstly social engineering, secondly
an example of resulting legislation, and thirdly implementation. On the first...
[1. Social Engineering]
Earlier this month, the Human Rights Commission published a report,
“Framework for the future: equal employment opportunities in
The report is not a balanced assessment. Rather, it is an example of
advocacy research, promoting a particular position.
It contains statements such as: "It is troubling that there is so much evidence of direct discrimination against women and of sexual harassment of women at work."
However, it does not have evidence to support its claim. In fact, on the previous page, where it presents the available information, the report states, “we are limited in the implications we might draw from the following information.”
It also makes some highly partisan and speculative assertions:
“…indirect forms of
discrimination also continue to hold women back. For example, the structuring of the workplace,
the intensive nature of some training programmes, and the expectations of the
hours people must work to obtain management positions can each serve to
preserve competitive, male-dominated cultures [note – the essence of the market is
competition]…change is unlikely when the
institutional power resides with those who most benefit from current
arrangements.”
It might be thought that skills and experience should be important
criteria for people in senior positions, and men at least should be concerned
to see the Human Rights Commission referring to “male-dominated cultures” in
this way.
The report is well timed, as the National Advisory Council on the Employment of Women this week held a conference on pay and employment equity for women. The NACEW is consists solely of women. Eight are appointed by the Minister of Labour, two represent the unions, and one represents Business New Zealand. The conference speakers were all women. I doubt that there would have been any strong challenge to calls for “equal pay for work of equal value”, or the even more extreme “elimination of the gender pay gap” (i.e. equal average pay overall for men and women, or “equality of outcome”).
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There is also a “Report of the
Taskforce on Pay and Employment Equity in
the Public Service, Public Health and Education Sectors”, dated March this
year. The preface alone should raise economists’ eyebrows:
The scale and persistence of the gender pay gap in
Without action, the education and skills of women will be wasted. [So
educated women should be working more?]
It is acknowledged that the tight timeframe for
the Taskforce made it necessary to use less formal research methodologies than
could have been employed in a longer timeframe.
We have an opportunity to eliminate the pay and
employment inequities for women over the next five years…Visionary and
determined leadership from Government and chief executives is essential.
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The report is referring to a five year plan to ensure that, to quote Margaret Wilson, “necessary changes in practice and culture become embedded in the fabric of New Zealand society” This is how social engineering is occurring in New Zealand today.
I am concerned at the negative view of men implicit in this, and the associated overriding focus on women (possibly, for many of them, moving them in a direction contrary to their wishes).
In my paper at last year’s NZAE conference, I pointed out that grouping and analysis that treats women and men as independent groups is flawed and potentially harmful. The results that can arise are illustrated by policies on domestic violence.
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[2. Domestic Violence]
By
one measure, even back in 1997, women lawyers made up 55% of the lawyers
working in family law. The Women’s Consultative Group of the New
Zealand Law Society has said: “domestic
violence is about the use of power by men to control their women partners”. Implementation of the Domestic Violence Act is
likely to be highly gendered.
There is a document for public consumption on the Ministry of Justice web site entitled "Dealing with domestic violence: Information on protection orders and the Domestic Violence Act".
It is worth
considering in terms of the principle that one is innocent until proven guilty.
The document
states that a Judge will usually make a decision without seeing the applicant,
and without the respondent being aware of the proceedings. If the Judge is
satisfied with this evidence, a Protection Order will be made immediately.
An
agent of the Court (usually a bailiff, perhaps with the Police) will visit the
respondent and give them a copy of the Protection Order. The respondent
may be required to move out of the home.
The
Protection Order initially lasts for three months. If not defended, it then
becomes permanent. It will include non-contact conditions with the applicant
and any children (including phone, letter, fax, etc.) which the respondent must
always follow. The applicant can agree to contact, but can reinstate the
non-contact conditions at will without going to Court.
Where there is
evidence that a breach of a Protection Order has occurred (which could mean
sending a birthday card to a child, or failing to attend a Stopping Violence programme),
the document states that the person will be arrested and cannot be bailed by
the Police for 24 hours.
In other words, it is possible to
have someone evicted from his home and denied contact with his children on the
basis of only a written submission.
We could ask how politicians could pass such a law, and lawyers and judges can apply the law for a period of years, without questioning whether it goes against fundamental principles of a democratic society.
We should also note that domestic
violence is an issue which is used to promote other family and workplace policy
initiatives.
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[3. Implementation]
To my third issue, what of implementation?
I have argued elsewhere that the law is a crude policy instrument, and that economists are too complacent about its shortcomings. In response to criticisms of the Family Court, it has begun to publish descriptions of some the cases it handles, presumably those which it considers reflect favourably.
The column for April 2003 describes a case in which the wife receives $50,000 "compensatory" payment due to significant disparity in income or living standards post-separation “because of the effects of the division of functions within the marriage”.
The woman stopped work to accompany the husband on overseas postings. The sum is calculated on the basis that this would have resulted in income being lower by about $10,000, and it taking 3-5 years for her income to recover.
$10,000 X 5 = $50,000
The Judge assumed, implicitly or explicitly, that:
1) she should be fully compensated
2) it would take the greatest suggested time, 5 years
3) there is no gradual reduction in income shortfall
4) it is correct to use gross income, not income net of tax (although the payment received in settlement would be tax free)
5) no discounting to compute present value
If we accept the first, use 3 years with linear reduction in shortfall, 33% marginal tax rate and 3% discount rate, the sum falls from $50,000 to under $13,000.
That is not all.
We might consider it reasonable that the assessed sum be allocated to her, after which the remainder of the relationship property be divided on standard criteria.
The Judge did not see it that way.
She ruled that, “The payment is ‘compensatory’, so the entire amount was paid from the husband’s already divided share of the relationship property”.
This single legal interpretation of one word, “compensatory”, resulted in the difference in allocations increasing from $50,000 to $100,000.
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In summary, I have only given a brief glimpse of the evidence showing poor and partisan policy development, questionable laws, and ill-informed, possibly activist implementation of the law.
To return to Haffner, perhaps we cannot sit by while these things occur. We may have to take action ourselves if we wish to ensure adequate standards of debate, policy formation, and implementation.