The surprising history of welfare law
Associate Professor Māmari Stephens (Te Rarawa and Ngāti pākehā), author of the new book Social Security and Welfare Law in Aotearoa New Zealand, has been teaching welfare law since joining Victoria University of Wellington in 2006. Each year she starts by asking her class what they do when they are walking down the street and see somebody asking for money.
“‘Do you walk on by? Do you give them money? Do you go and buy them a sandwich and take them it? Do you cross the road? What is your response to other people’s statement of need?’
I get people to write down their answers on a piece of paper and give them to me. The range of answers is really interesting,” says Māmari.
“This exercise tells us something about welfare. Even though we’ve got this massive bureaucracy and all this legal structure around it, it’s real life, it’s ‘What do we owe our neighbour by way of obligation? How much do we owe each other to make sure each other survives? And who mediates that? What is the state’s role in that?’ These are really fundamental questions about how we live in society with one another.”
Welfare, Māmari points out, is a broad term.
“It incorporates everything from ACC to benefits to superannuation—which, of course, is a benefit too. I’ve deliberately included ‘social security’ in the title because that’s the narrow focus on benefits under the Social Security Act, but there are broader things talked about in the book in terms of welfare—Māori welfare, for example.”
Māmari’s mother was a solo parent beneficiary and Social Security and Welfare Law in Aotearoa New Zealand is dedicated to her and Māmari’s father. Of her parents, who died while she was working on the book, Māmari writes in her acknowledgements that between them they “taught me so much about the welfare state in New Zealand”.
At the same time, she says, what she has learnt about the welfare state through writing the book has given her new perspectives on her family experience.
When Māmari started teaching welfare law, there was, to her knowledge, only one other person doing so in New Zealand, John Hughes at the University of Canterbury, who happily shared course notes with her.
John has written the foreword for Social Security and Welfare Law in Aotearoa New Zealand, which is published by Thomson Reuters, with Māmari’s research supported by the New Zealand Law Foundation.
He describes it as “a highly readable account of an exceptionally technical area of law” and “an invaluable guide to welfare and social security for the general reader” that “should be required reading for lawyers, policy-makers and administrators and all who seek to frame, or participate in, recurring public debate on the issues it raises”.
At the centre of the book is its appreciation of the set of principles fundamental to welfare law—no matter what government is in power or how elements of the law might shift.
“Every time a government changes they bring in a new crop of old things,” says Māmari. “When Labour comes in there’s an expansion, figures for hardship grants go up, sanctions go down. And when National comes in again you see the reverse—there’s a stricter approach to hardship grants, a stricter approach to sanctions, some of the discretionary benefits around the edges get canned. It’s very predictable. But the core of the system never changes.
“One thing clear from the get-go is there has never been at the heart of welfare law a principle of poverty alleviation. Not in its nineteenth century early manifestations, not in the 1938 Social Security Act or under the First Labour Government that brought the Act in, and not later. The workings of the law go towards alleviating poverty but that’s not the driving principle. The driving principle has been employment. So I had to bring that out.”
One thing Māmari hadn’t realised before teaching and researching the subject is how welfare law and social security law in particular are perhaps “the most highly moralistic, socially normative legislation we have.
“I teach criminal law as well. Criminal law is very directive and normative about what social behaviour is expected because this is the stuff you shouldn’t be able to do. Social security legislation works in the opposite direction: ‘If you want state assistance this is how you have to live.’ So it’s socially normative in a way other pieces of legislation don’t ever quite manage”.
That moralism is also reflected in the opprobrium frequently associated with welfare. At what point did it become such a ‘stink’ word?
“The 1500s?” says Māmari, first laughing but then seriously: “When you answer that question you’ve got to go back to the idea of the deserving and undeserving poor. That idea has been with us since just after the Middle Ages in England.”
It has meant, she says, “people on welfare or in receipt of state benefits have always had to justify themselves. There has always been a sense of pressure on them as to whether or not they really deserve that assistance”.
Māmari hopes that if there is any major reform in the wake of this year’s findings by the Government’s Welfare Expert Advisory Group, published in the report Whakamana Tāngata—Restoring Dignity to Social Security in New Zealand, those involved in delivering it read her book.
“Because it helps to know how, for example, thinking about illness drives the shape of the sickness benefit, how we think about family formation drives the benefits that make up family support, how what we think about young unemployed men and the dangers we presume they hold for society, and about young pregnant women, explains why we treat youth benefits separately to other benefits. There’s a history to all that stuff. I want policy-makers to read about that. The only chance you’ve got for good reform is to take all that into account.”
Meanwhile, Māmari continues to teach her welfare law course—and it’s a popular one.
“I think a lot of students might take it because it’s not tax,” she jokes. “Although I have to say, if there’s something I think I should have taken when I was at law school, it’s tax law. Because there are a lot of those very same questions. It’s incredibly fundamental stuff. It’s all part of the same thing: What right do we have to take money off the general populace and what do we do with that money when we take it?