Search This Blog

Wednesday, July 4, 2012

Drug Testing Beneficiaries: Part I

The recent proposal for drug testing beneficiaries has had a mixed public reaction, and interestingly not a divisive reaction between the left and right as has commonly been the case in regards to other policy initiatives pursued by the government. This policy is more similar to a public conscience debate rather than any political allegiance. The basis of the arguments for and against tend to revolve around the expectations and conditions that should or should not be imposed on persons in receipt of welfare payments.

The most common argument in favour of the drug testing of work tested beneficiaries I have seen and heard is:

"Beneficiaries should not be spending their benefit on illegal drugs, or alternatively, that taxpayers should not be required to fund the drug habits of beneficiaries"

Whilst I agree with this point in principle, there is no evidence to suggest that persons on work tested benefits are more likely to purchase illegal drugs with their welfare payments and therefore there is no justification for subjecting them to compulsory drug tests in order to obtain employment or to retain their welfare payment.

The first issue here is that the enforceability of drug testing beneficiaries directly affects a persons right to be secure from unreasonable search and seizure, a right protected under s21 of the New Zealand Bill of Rights Act 1990 (NZBORA).

The right protected is a right to privacy. The Courts have a long held view that privacy intrusions involving searches of the person, which is effectively what a drug test is, must be a justifiable limit on the right  in a free and democratic society (s5 NZBORA).

The question here then is whether in a free and democratic society persons who are in receipt of welfare payments who have no known history of drug use can be justifiably subjected to a compulsory drug test in order to retain their welfare payment and; whether there is a justification for subjecting a person to a compulsory drug test when there is no guarantee that the person subjected to the compulsory testing will in fact get the job applied for.

Drug testing requires a person to submit to their bodily samples being taken and tested. Whilst this may not seem like a major intrusion given that the environment under which the drug test is likely to take place is probably no different from submitting bodily samples at a laboratory test for medical purposes, the issue lies in the compulsion to submit their bodily specimens rather than the voluntary nature of medical tests.

The fact that a person must undergo this testing, without reasonable cause, is not a justifiable limit on the right. The only reasonable cause for compelling a person would be if they had a history of drug abuse or known recreational drug use. Note though, that persons identifying as drug addicts are exempt from the compulsory testing, and the policy is aimed at recreational drug users and not the addicts who are in receipt of welfare payments but who are on non-work tested benefits because of their addictions.

If the policy were targeted at known drug users, then the reasoning here would be different since there is reasonable cause for doubt and an employer in that instance would have a right to know if the person applying for the job would be likely to be under the influence of drugs during the tenure of their employment with that employer.

Currently, employers may request that applicants undergo a drug test and refusal will likely result in non-consideration for the role. In my view, the policy proposed by the government is unnecessary, since employers can already choose to drug test job applicants. The incentive to not take drugs for those who might be inclined to do so is the possibility of being excluded for consideration for the job. Suspending or cutting the welfare payment will have far more serious effects on those dependent on a person who is receiving welfare. As already stated, Employers can request drug tests already so there is no need for the compulsory testing of beneficiaries and there can be no justification to limit their s21 right on this basis. Arguably, the purpose of the compulsory drug testing is simply to further demonise beneficiaries. And perhaps the aim is to create such a negative stereotype of beneficiaries that this will deter people from signing up for benefits in the first place. The policy is aimed at managing welfare dependency, but the assumption is that beneficiaries become welfare dependent because they spend their money on drugs. This is an unfair and unqualified view of persons receiving welfare. Additionally, similar overseas policies have found that the cost of such programmes outweighs the number of welfare recipients who are actually drug users.