Human Rights Commission
The many persons who feel they have been unfairly treated cannot obtain justice through their politicians (who are ultimately responsible for unjust laws), the Attorney General or - in spite of the decision in the Raj Case - the Courts. It would appear that every avenue of appeal is blocked. There is however another option available.
The government can be challenged under the Bill of Rights Act (1990) through the Human Rights Commission.
The Human Rights Commission is appointed by the government, its appointees broadly reflecting the governing party’s philosophies. With the lifting of a moratorium in 2003 the Commission had no choice but to begin accepting complaints of perceived pension injustices. Parliament informed the Commission that it would be at least two years before additional funding to handle these complaints would be provided. For this reason, the Commission contacted only a few people known to be experiencing difficulties obtaining NZ Super.
Ruth turns to the Human Rights Commission.
Ruth was one of the first persons to file a formal complaint with the Commission on the grounds of discrimination. Ruth claimed that she had worked and paid taxes like everyone else, arguing that it was therefore discriminatory to be denied the right to NZ Super simply on the grounds that she was married to a person receiving a pension from another country. Ruth could have married a New Zealander with any number of annuities, investments and superannuation schemes without it affecting her right to NZ Super - or she could not have married at all. By all appearances, it could not be a more straightforward case of discrimination.
The Commission has confirmed that over a two year period it received and handled 22 complaints of pension discrimination (including Ruth’s).
Every complaint of pension discrimination received by the Commission has been dismissed.
Some of the more complex complaints (including Ruth’s) were passed onto the Office of Crown Law for legal opinion. With the exception of Ruth’s complaint, Crown Law summarily dismissed each complaint of pension discrimination on identical grounds, without even varying the wording:
“In our view there is no discrimination. He/she/they has/have not provided any evidence that someone else of a different national background, or a different employment status or a different age would be treated more favorably. Further it is difficult to see how such a contention could be substantiated.”
Most elderly people writing to the Human Rights Commission to complain of unfair treatment are unlikely to consider it necessary to provide contrasting examples of how other people are being treated. As far as is known, none of these people were ever asked to provide contrasting examples of how other people are being treated. Crown Law never contacted any of these people to explain that they needed to provide evidence of someone else being treated more favorably, and no one was offered a hearing.
“There is discrimination” - Crown Counsel
Ruth’s complaint was handled by Mr Simon France, Crown Counsel, who gave her claim of discrimination a backhanded acknowledgement:
“If there is discrimination it is justified.”
Mr
“When dealing with limited public funds, the abatement regime in section 70 and the treatment of married couples as single economic units are legitimate measures to ensure that the NZ benefit system is equitably spread across all of those in need.”
The Office of Crown Law is the government’s legal advisor. Crown Law supports the official government position on any and all issues, but it does not have a license to thwart the process of justice, nor does it have the authority to redefine the nation’s laws. The average New Zealander would refute the contention that a married couple (both parties 65 or over) should be treated as a single economic unit, and would point out that if NZ Super were in fact a needs-based system then some of the nation’s wealthiest citizens would not be receiving NZ Super.
Mr
“The chief executive of MSD considers that the
On the contrary, the factual correctness of that determination is most certainly an issue.
There have been times in the Courts when Crown Law opinion has been found to be wrong. In any Court of Law a competent attorney would have demolished the arguments relating to Ruth’s situation that were put forth by Mr
“There is discrimination” - Director of Human Rights Proceedings
Ruth agreed to submit her complaint to the Human Rights Review Tribunal, requesting legal aid from Robert Hesketh, Director of Human Rights Proceedings. If a complaint is successful at the Tribunal level it can put pressure on Parliament to enact legislative change through a Declaration of Inconsistency. After considering her complaint Mr Hesketh decided to accept the opinion of Crown Law, denying Ruth legal representation and/or financial assistance to take her case to the Tribunal.
Mr Hesketh defended his decision on the basis that Ruth’s case is unlikely (in his opinion) to succeed at the Tribunal level. At the same time Mr Hesketh admitted the following:
(i) Ruth does have an arguable case of discrimination.
(ii) Ruth’s complaint raises several significant questions of law that have not been tested in the New Zealand Courts.
(iii) Ruth’s case would potentially affect a large number of people.
(iv) The Director has been given insufficient funding to handle a case of such complexity.
The Director qualified his denial of legal assistance to Ruth by disclosing that with “limited resources” there is serious competition for those resources among the large number of complaints before him, candidly admitting therefore to taking only those cases that are considered easier to win.
The government stifles human rights challenges by choking their funding.
All complaints of pension discrimination submitted to the Human Rights Commission have met with identical treatment. Complaints not dismissed by the Disputes Resolution Manager have been sent to the Chief Legal Advisor at the Ministry of Social Development, only to be systematically rejected by the Office of Crown Law. Complainants have then been offered the opportunity to request legal assistance from the Director of Human Rights Proceedings to take their complaints further. The Director has replied to each complaint using exactly the same template, denying legal assistance to all claims of pension discrimination due to insufficient funding.
The 2003 report addressed to the Finance and Social Development Ministers warns the government in unmistakable terms that it remains at serious risk of being challenged under the Bill of Rights Act 1990 due to the discriminatory nature of the direct deduction policy.
It takes no great stretch of imagination to recognize that a highly effective method of reducing the risk of challenges to the government would be to ensure that the Human Rights Commission and the Director of Human Rights Proceedings are given insufficient funding to adequately fulfill their roles.
The Commission has confirmed that “generic” requests were made to the government for increased funding. It has also confirmed that the government refused to supply the Commission with additional funding.
The Commission put Ruth through another round of submission, delay and rejection.
Following complaints over the treatment of Ruth’s situation by the Commission and the office of Human Rights Proceedings, the Human Rights Commission agreed in 2007 that Ruth’s complaint of discrimination was indeed justified and that she could resubmit her case to the Director of Human Rights Proceedings.
A copy of the 2003 report and a letter from a prominent American attorney, clarifying the correct nature of US Social Security and how it had been misunderstood and misrepresented by New Zealand authorities (refer The Roe Case), were provided with Ruth’s second appeal for legal assistance.
It was well into 2008 before Ruth finally heard from the Director of Human Rights Proceedings. Once again her appeal for legal assistance was rejected, for the same reasons used to dismiss her previous complaint: basically, the Director preferred to use his “limited resources” to support complaints that were easier to win.
With the final rejection of Ruth’s complaint, the Human Rights Commission and the Office of Human Rights Proceedings effectively endorsed the government’s right to discriminate.
The Annual Reports of the Human Rights Commission are published in full on its website.
The 2007 Annual Report exemplifies how much emphasis is placed on individual cases of discrimination with respect to disability or within the workplace - and how little headway is being made against discrimination affecting thousands of people as a result of government policy. Intimidated by the resources the government has at its disposal, the Commission shows extreme reluctance to initiate cases of discrimination against such an opponent. The Human Rights Commission and the Office of Human Rights Proceedings are but shadows of the watchdogs they ought to be. Significant injustices are being allowed to proceed unhindered.
The Commission was fortunate to receive only a limited number of complaints of pension discrimination - when it could easily have been inundated with hundreds if not thousands of grievances. Of the few complaints filed, Ruth’s situation was the most straightforward case of pension discrimination: she was denied NZ Super merely for marrying the wrong man.
NZ Pension Abuse has no choice but to accept Mr Hesketh’s reasoning that he has insufficient resources to provide legal assistance in cases involving pension discrimination. But limited funding does not absolve the Director or the Commission from including in the mandatory Annual Report to Parliament the issue of pension injustice which, to date, remains conspicuously absent.
Even though the office of Human Rights Proceedings may not be confident of success in overturning cases of pension discrimination, there can be no doubt that, together with the Commission, a major role could and should have been fulfilled in bringing the extent of pension discrimination to the attention of Parliament.
The Commission has not escaped harsh criticism for turning its back on Ruth and other senior citizens.
As if sensitive to charges of failing to meet its obligations, the Commission made it known that, for some time, it had been conducting its own investigation into equity issues raised by the classification of overseas pensions under the existing system.
The Human Rights Commission is failing in its mandate to counter policies breaching human rights.
In September 2008, replying to questions as to where it was proceeding with its investigation into the treatment of overseas pensions, the Commission implied that although it had seen some of the reports forming part of the former government’s Review of New Zealand Superannuation, it preferred to accept the Cabinet paper which suggests retaining the current policy, adding:
“While we consider that there are matters that need to be addressed we do not consider this would be best advanced through litigation, but rather by promoting a change to policy. However, this takes time and is best achieved by providing a solid base for any proposals.”
New Zealanders continue to wait. Should the Human Rights Commission ever decide to recommend policy changes to Parliament, NZ Pension Abuse will certainly publish its recommendations on this website.