Between common sense and the Tribunal
The Human Rights Commission (HRC) has been receiving complaints from superannuitants who feel robbed of their overseas pensions on a regular basis. However, most cases of discrimination were not considered to stand any chance of success before the Human Rights Tribunal, and were therefore dismissed.
Some critics say the HRC has been acting like a puppet on a string for a very long time, using the RPRC's research as a fig leaf and far too willingly following the politics of the Government instead of acting true to its name. We have got a different impression at the Overseas Pension Forum in Auckland. There, the HRC announced to put pressure on the Government regarding the overseas pension issue, with the goal that justice is done to every New Zealander, not only to the majority.
The HRC has agreed to sponsor a second Overseas Pension Forum at the end of August 2010 in Wellington, so the organisation is taking a stance and plays its part in making the topic known to the public. The HRC's work has to focus on the unrightfulness of Spousal Provision, as you will see when you study the structure of the Human Rights Act and the need for establishing a case of discrimination. We will keep an eye on it.
We cannot judge from an expert's point of view, as the issue is a hugely difficult legal discussion, and we are no lawyers. But using common sense, we cannot always follow or accept the conclusions of judges. In our opinion, at least the paragraph about Spousal Provision (SP) in Section 70 of the Social Security Act is in breach of human rights, as it clearly discriminates against pensioners who live with or are married to someone with an overseas pension. Spousal Provision is discrimination on grounds of family (formerly: marital) status. No-one could have underlined this better than the WINZ worker who told Ruth Humphrey: "You are married to the wrong man!"
Two steps towards a fairer treatment of pensioners
Therefore it should be a no-brainer for the Government to abolish SP as the first step towards a fairer treatment of pensioners who are linked in any way to overseas pensions.
The second step - the abolition of DDP - is more difficult. People who take their cause to the High Court in this country might make themselves heard and contribute to a kind of discussion. But in the end they waste their time, energy and money.
High Courts can only examine if a law is applied correctly
The High Court can only decide if DDP is lawful. And this is what it has done many times. Of course, it is lawful to deduct overseas pensions from NZ Super as long as Section 70 is part of the Social Security Act and therefore law. Our opinion and common sense does not make the law unlawful. The law has been introduced to make the Government's large-scale money-raising spree legal. So the goal of our fight has to be the law change, and not to additionally feed the High Courts with our money through legal fees.
At the Overseas Pensions Forum in Auckland Rosslyn Noonan, the Chief Commissioner of the Human Rights Commission (HRC), made some very important points about the need to review Section 70 of the Social Security Act that allows the deduction of overseas pensions from NZ Super, and causes such a lot of grief among retiring immigrants, Kiwis who have worked overseas for many years, or simply are married to an immigrant or returning Kiwi.
Rosslyn Noonan placed the issue in the context of the right to an adequate standard of living. "Human rights", she said, "are not only about discrimination but also about the standard of living and participation in social life."
It is essential to supplement national superannuation
To alleviate poverty in old age it is important that people supplement national superannuation with savings during their working lives. (Editor's note: This would mean that the NZ government does not hide Section 70 from potential immigrants and Kiwis who plan to work overseas and retire back home in New Zealand, so they can make an informed decision. The way it is now they think their overseas pensions are the savings they need to supplement their future NZ Super.)
The Commissioner also placed the treatment of immigrants into the context of New Zealand's urgent need of immigrants and Kiwis returning home after their OE. "Large scale migration is a global reality today", she said. "Being globally mobile will be an increasing feature of the working lives of our children and grandchildren. So it is important that we don't bequeath this problem to them."
Rosslyn Noonan wanted to encourage a "strong national discussion", based on the principles of democracy and the engagement of citizens "who identify injustice, an unfairness, a breach of human rights, and work with others to build support to rectify it". She requested a "fair and efficient" outcome of the discussion for which the Retirement Policy and Research Centre (RPRC) has provided a solid base with its Working Papers. From there work should begin "for a more principled, transparent, fairer and more efficient approach to dealing with national superannuation and overseas pensions in this age of growing global migration and labour market mobility".
The Government has to be forced to listen and act
She warned the NZ government that "New Zealand's economy can only flourish if immigrants come to New Zealand and societies are mobile. Therefore the Government has to be forced to listen and act." Life has taught her, she said, that persistence is the most efficient tool to finally reach a goal. This conforms with our idea of pensioners making themselves heard: protest, be loud, make noise and do not shut up.
The second big contribution of the Human Rights Commission was to go into detail on the topic of discrimination. Sylvia Bell, the HRC's Principal Legal and Policy Analyst, has identified a few cases that can be progressed under the anti-discrimination provisions of the Human Rights Act, and explored ways of intervening in the policy process in relation to those cases. The bad news for pensioners: many cases are certainly unfair but do not legally constitute unlawful discrimination.
The second bad news: before you can complain with the United Nations you have to have exhausted all national resources. (We think in our naivety that perhaps a letter now and then to the United Nations can do no harm. They might wonder what is going on in New Zealand.)
No chance without the Human Rights Commission
This Human Rights Act is also a beast as it is clearly structured and neatly identifies the prohibited grounds of discrimination, and how discrimination is defined and tested. In the end Sylvia Bell quoted some cases like: XY v Company 1 and YX v Company 2, not forgetting the famous "Roe case", and why they were successful or unsuccessful in the Court of Appeal or Supreme Court. Without detailed knowledge of the cases it was impossible to follow the conclusions. But the message was clear: if you are not supported by the Human Rights Commission you stand no chance of getting anywhere.
The big hope is that Ruth Humphrey who has married the wrong man will now be supported and therefore stands a chance to succeed with her complaint - which in the end would lead to Spousal Provision being declared illegal by higher courts than the Human Rights Tribunal. The Tribunal's findings are not binding for the Government.
"The issue is the nature of the pension, not nationality or country of origin", says Sylvia Bell, "and marital status, family status is the way to go. But the track of litigation takes years."
But let's be clear: Even if successful, this would only mean the abolition of Spousal Provision - not of the Direct Deduction Policy in general. This is why it is so important to keep on campaigning against this unfair policy that affects more people by the day.
If you want to read about High Court cases in more detail you can find some examples on the NZ Pension Abuse website here and here.
Supreme Court, Wellington
Structure of the
Human Rights Act
(Source: HRC papers by Sylvia Bell, presented at the Overseas Pensions Forum in Auckland)
Part 1 lists functions of the HRC including wider human rights matters and allows for policy intervention and inquiries into any matter that may involve infringement of human rights.
Part 1A applies to discrimination by the public sector including legislature, including discriminatory legislation and policy.
Part 2 applies to services offered to the public by the private sector.
Part 3 deals with the resolution of disputes about compliance with the parts of the Act listed above.
Prohibited grounds of discrimination:
- Political opinion
- Employment status
- Family status (i.e. care of dependants, being married to or in a civil union or de-facto-relationship, or a relative)
- Sexual orientation
- Marital status (being single, married, etc.; also applies after separations and divorces)
- Religious or ethical belief
- Ethnic or national origin
To access the complaints process and access to the Human Rights Tribunal there needs to be some evidence of discrimination.
Note: Not all different treatment amounts to discrimination, and not all discrimination is illegal.
However, under part 1A - and this is the part which is relevant for complaints about discriminatory legislation as in Section 70 of the Social Security Act - the standard is that in the Bill of Rights Act.
Test for Discrimination
The problem: discrimination itself is not defined in either the Human Rights Act or the Bill of Rights, and there is little relevant case law.
1. Is there discrimination that is prohibited under S. 19 of the Bill of Rights (= right to freedom from discrimination)?
2. If so, is it a justified limitation under S. 5 of the Bill of Rights?
Comparison and disadvantage
To establish discrimination there must be a distinction based on a prohibited ground, and disadvantage.
A comparator must be identified to establish disadvantage. (The problem, as stated earlier: there are recognised exceptions.)
After having identified an appropriate comparator, it is necessary to establish different treatment.
The different treatment must result in disadvantage, and if so, it has to be established if the treatment has such an important purpose that it can be justified.
Put in simple words, especially in the case of Spousal Provision in Section 70 of the SSA:
Is the purpose of filling the New Zealand government's coffers important enough to justify discrimination of people being married to or in a relationship with someone who receives an overseas pension?