|
|
|
The 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. As New Zealand does not have a constitution, it would appear therefore 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 Party in power, its appointees broadly reflecting the Party’s philosophies. With the lifting of a moratorium, in 2003 the HRC 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 HRC contacted only a handful of individuals known to be experiencing difficulties obtaining NZ Super. One of the first persons to file a complaint was Ruth, referred by ACT MP Rodney Hide. Ruth filed a formal complaint with the HRC 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 Human Rights 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 Human Rights Commission has been dismissed. Some of the more complex complaints (including Ruth’s) were forwarded to Doug Craig, Chief Legal Advisor at the Ministry of Social Development, who passed them onto the Office of Crown Law for legal opinion. At Crown Law, most of the complaints (excluding Ruth’s) were examined by Ms Martha Coleman, Associate Crown Counsel. Responding to requests for information under the Official Information Act, the Commission has acted honourably and promptly in making available its correspondence to Mr Craig and the replies from Ms Coleman, with the names of the persons making the complaints blotted out for privacy. (In stark contrast, citing “client/solicitor relationships” and “legal professional privilege”, Mr Craig and the Chief Executive of MSD have refused to make available any of their correspondence to Crown Law.) With the exception of Ruth’s complaint, Associate Crown Counsel Martha Coleman summarily dismisses each complaint of pension discrimination on identical grounds, without even bothering to vary 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 favourably. 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. Neither Ms Coleman nor anyone else at Crown Law ever wrote or telephoned any of these people to explain that they needed to provide evidence of someone else being treated more favourably, and no one was offered a hearing. Ms Coleman’s treatment of these people is not much different from rejecting their complaints on the grounds, “But you failed to take an oath to tell the truth, the whole truth and nothing but the truth.” There is the appearance that Ms Coleman is determined - at all costs - to quash any and all allegations of unfairness concerning NZ Superannuation policies. Ruth’s complaint was handled by Mr Simon France, Crown Counsel. Her complaint of discrimination was side-stepped except for the comment, “If there is discrimination it is justified.” Mr France claims that in matters relating to NZ Super all married couples are treated as single economic units and therefore Ruth’s husband should be expected to take care of her! He summarizes: “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.” Predictably, Mr France backs his learned conclusion with a reference to the Roe Case. 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. In his summary of Ruth’s case, Mr France states the following: “The Chief Executive of MSD considers that the US retirement pension received by Ruth’s husband is part of a benefits program designed to meet the same contingencies as a NZ benefit. This has been confirmed by a decision in the High Court of New Zealand” (the Roe Case). Mr France continues, “The factual correctness of that determination is not an issue.” 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 France. Except, of course, Ruth’s case - like all the other complaints of pension discrimination - has never been examined in a Court of Law. 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 defends 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 admits 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 qualifies 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. 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 MSD, 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. It is disappointing that, as a mediator, the Human Rights Commission has completely failed to play a constructive role in addressing a major injustice - thereby calling into question the very effectiveness and integrity of the Commission. However, the Commission and the Director of Human Rights Proceedings are not to blame for being on the receiving end of misleading and often incorrect information. Criticizing the Commission and the Director of Human Rights Proceedings is hardly justified if the government has given them insufficient funding to adequately fulfil their roles. The February 2003 Review addressed to Dr Cullen and Mr Maharey 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 fulfil their roles. The Commission has confirmed “generic” requests were made to the government for increased funding. It has also confirmed that the government has refused to supply the Commission with additional funding. For Ruth and the other persons who have followed the same path, the Bill of Rights has been reduced to a meaningless document, the Human Rights Commission appearing nothing more than a sham. If you
feel you would like to lay a complaint with the Human Rights Commission
(HRC), this rather ineffectual organisation can be contacted via it's
web site . |
|
Last modified: February 21, 2007 |
