The Roe Case and High Court decisions
The Roes appeal the withholding of their NZ Super.
Dr William Roe and his wife, originally from the
Without legal counsel, Dr Roe inadequately framed the issues and was ill-equipped to confront the combined legal forces of the Social Security Commission and Crown Law. His appeal was dismissed. It became a landmark case and the decision by Chief Justice Davison is still used today to dismiss appeals against the direct deduction policy.
Accepting the evidence of civil servants, the judge dismissed the appeal on two erroneous points of law.
The first was based on the misrepresentation of US Social Security as “income maintenance assistance” granted to retired persons by the
There are two forms of US Social Security. One, an atypical benefit known as Supplemental Security Income, is indeed a form of government support, a minimal amount granted to persons in dire need.
The general form of
The second point of law was based on a false principle of international social security.
Davison considered:
“Governments of countries do not consider it their obligation to pay retirement benefits to a person when another government is already doing so.”
Chief Justice Davison’s assessment was wrong. There is no such principle. He was in fact quoting verbatim from a Crown-prepared statement and the quotation has been used endlessly by civil servants and politicians to this day to justify the direct deduction policy.
Principles of international social security are honored around the world - except by
The International Labor Convention, Number 157, protects the rights of individuals to state-sponsored pensions they have legitimately earned, and European Convention 1408/71 Article 46 specifically prohibits nations from consuming age-pensions earned in other countries.
The
Qualified American opinion on US Social Security was never requested or presented to the High Court in the Roe Case. Dr and Mrs Roe (both now deceased) had neither the financial resources nor the stamina to appeal the decision; two decades on, given the prohibitive cost for any pensioner to question a High Court decision, the Roe Case decision has never been appealed or challenged.
The decision in the Roe Case is yet another in a number of travesties of justice in
Further High Court decisions have reduced the Crown’s accountability.
Beginning with the Roe Case, the High Court has been provided, under the authority of the chief executive of the Ministry of Social Development, with distorted and incorrect information that has resulted in decisions establishing the following:
(i) Foreign pensions no longer have to be analogous to, or have like contingencies with, NZ Super in order to be directly deductible.
(ii) The Hogan Case, 2002 (involving the deduction of a second-tier Canadian pension), established that overseas pensions no longer need to be identical to NZ Super.
(iii) “Age-related” is no longer a criterion.
(iv) A widow’s pension from overseas can now be deducted from NZ Super.
(v) The Tetley-Jones Case, 2004, established that the chief executive no longer needed to be specific in his determination of foreign pensions subject to the direct deduction policy.
The chief executive has been asked to specify in complete and exact detail how the Crown determines that the US Social Security pension has like contingencies with NZ Super.
The chief executive admitted that he was unable to specify in complete and precise detail the similarities between the
The Courts are bound to abide by legislation enacted by Parliament but the decision process involving the deduction of overseas pensions is a gray area where important policies have been established not by the Courts or Parliament - but by a bureaucrat, with no questions ever being asked. The nation should be concerned.
Questionable methods have been used to establish that superannuation schemes within
Teachers Super is defined as an “occupational” pension - therefore, according to the chief executive, it is different to overseas pensions. The term “occupational” is not to be found in social security legislation, but after being used by the chief executive, the definition becomes accepted as law. Several overseas pensions subject to section 70 can also be defined as “occupational”.
A major setback for the Crown in 2004 is significant.
For the first time in an appeal involving pensions, the High Court ruled in favor of the appellant rather than in favor of the Crown.
WINZ attempted to deduct the government pension of Fijian immigrant Mr Sant Raj Rai. The Court ruled in his favor on the basis that his pension was a civil service pension and not government-funded. For the first time in a Court of Law, the chief executive of the Ministry of Social Development was found to be wrong in his determination of overseas pensions subject to direct deduction.
When the decision went against the chief executive, undermining his hitherto unquestioned authority, the Ministry marshaled all its forces to appeal the decision.
What business did the Ministry have in going to the High Court to appeal a case involving a single, minor pension?
The court records for this case, and subsequent appeal, make compelling reading. In the appeal, the chief executive takes particular exception to the wording in the ruling that the Fijian pension was “not government-funded”. From the records, it appears that the chief executive was not asking, but insisting that the judge change the wording. The Court dismissed his appeal.
Why were the Ministry and the chief executive so concerned over the wording that the Fijian pension was “not government-funded”, and why were they so anxious for the judge to change the wording? The answer is simple.
For decades, under the direction and authority of the chief executive, the Ministry has been appropriating billions of dollars in overseas pensions from elderly people.
The majority of those pensions have not been government-funded.
Court summary: the Roe Case
Human Rights Commission