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 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 HRC 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 was dismissed.

Crown Law

The HRC passed some of the more complex complaints (including Ruth's) 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. The complainant has 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.

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 France considered 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!

"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 France summarized Ruth's case by referring to the Roe Case:

"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 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.

DIRECTOR OF HUMAN RIGHTS PROCEEDINGS: "THERE IS DISCRIMINATION"

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:

• Ruth does have an arguable case of discrimination.
• Ruth's complaint raises several significant questions of law that have not been tested in the New Zealand Courts.
• Ruth's case would potentially affect a large number of people.
• 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 was serious competition for those resources among the large number of complaints before him.

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.

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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.

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 Human Rights Commission, a major role can be fulfilled in highlighting the extent of pension discrimination in the mandatory Annual Report to Parliament.

In September 2008, replying to questions as to where it was proceeding with its investigation into the treatment of overseas pensions, the HRC acknowledged that it had seen some of the reports on NZ Superannuation Portability (these could only have been the 2001 and 2003 reports). Unfortunately, the HRC chose to accept Ruth Dyson's fictitious Review (refer: The Nation Betrayed), retaining current policy. The Commission added however:

"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."

The Commission arranged with academics at the University of Auckland Business School to conduct an investigation into equity issues raised by the classification of overseas pensions under the existing system. Working papers resulting from these investigations were published by Susan St John on the University of Auckland website. In a number of areas, these working papers quote verbatim from NZ Pension Abuse, a welcome development.

Taking a renewed and supportive interest in Ruth's case, in 2010 the HRC and the University of Auckland conducted public forums in Auckland and Wellington with Ruth as one of the principal guest speakers at both forums. These forums were attended by a smattering of government officials, foreign diplomats and members of the public. Sadly, lack of funding has curtailed any plans for forums in the South Island.

The more supportive stance adopted by the HRC and the positive work undertaken by the University of Auckland are encouraging. It has been 7 years since Ruth first appealed to the HRC - if the Human Rights Commission finally obtains justice for her, NZ Pension Abuse will immediately publish the results on this website.