If you want to complain to the UN Human Rights Commission or Council about the unfairness of the Direct Deduction Policy, the discrimination and the breach of Human Rights it constitutes, one important question in the UN application form is if you have exhausted all so-called domestic remedies. This means: have you appealed the decision by the Ministry of Social Development (MSD) to deduct your overseas pension through all national agencies and up to the highest courts.

If you answer with yes, it is factually not true. If you answer with no, the UN rejects your complaint. It is a classic yeah/no issue because it is absolutely use- and hopeless - and financially impossible - to go through all available instances because the application of domestic remedies is highly flawed.

To a certain extent the domestic remedies contravene Article 26 of the International Covenant on Civil and Political Rights, demanding that all persons are equal before the law.

If you want a short and poignant summary of this hopeless way through the various stages of domestic remedies, you can watch our video on YouTube where Christopher Arnesen describes the process and underlines it with impressive numbers from the five years preceding his OIA request in 2015: How the New Zealand government deceived the United Nations.

Here is our write-up:

The seven steps to (in-)justice

The impossibility of finding justice in the Government’s review processes

1. Internal review
   The first step is an internal review by the Ministry of Social Development (MSD) which has made the original decision. Only obvious mistakes are acknowledged and corrected, e.g. when the wrong rate of NZ Super has been paid, wrong amounts of overseas pensions have been deducted from NZ Super, or the calculation of NZ Super under Portability (when someone receives proportional NZ Super overseas) has been wrong.
   

2. Benefit Review Committee (BRC)
   Two of the three members of the Benefit Review Committee (BRC) are MSD employees who will not reject their own department’s decision. The third member is a community representative who can voice his concerns but will always lose against the two MSD representatives. Still the New Zealand government claims that this committee is independent despite saying at the same time that it is part of the Ministry. Between 2010 and 2015 the BRC heard 143 complaints against the deduction of overseas cases. None was successful.
   

3. Social Security Appeal Authority (SSAA)
   An appeal against a decision of the BRC has to be registered with the SSAA within three months after the dismissal by the BRC. Between 2010 and 2015 the SSAA heard 19 cases about the Direct Deduction Policy, none was successful. But there have been successful cases - but only if the CEO of MSD had not applied his/her discretion to NOT deduct fully private pensions or overseas pensions from a partner’s NZ Super when the recipient of the overseas pension was not qualified to receive NZ Super.
   
   According to MSD the Social Security Appeal Authority is an independent tribunal as it is "made up of people who work for the Ministry of Justice".
   
   While the ministries' websites are mum about the appointment process of the four members of this authority, you can find more information on the pages of the NZ Law Society.
   
   "The Authority consists of at least four people: a Chair, a Deputy Chair and two members. The role of the Chair is to conduct hearings, provide legal guidance and expertise to other members, and to write up the Authority’s decisions. [...] The role of the Deputy Chair is to act for the Chair when they are not available."
   
   And it goes on: "The appointments are made by the Governor-General, on the recommendation of the Minister for Social Development, after consultation with the Minister of Justice. Appointments can be for a term of up to three years with all members eligible for reappointment."
   
   Here you have it! On the recommendation of the Minister for Social Development - who again listens to the CEO of their ministry. That's how independence works here! It is just as flawed as everything where Crown Law acts on behalf of the Ministry of Social Development. Crown Law even lied to the UN Human Rights Council when a group of pensioners lodged a complaint in 2014, and then Social Development Minister Anne Tolley signed it off. Also well described in Christopher Arnesen's video on YouTube.
   

4. (New Zealand) Human Rights Commission (HRC)
   New Zealand’s Human Rights Commission is toothless and not really independent. It has been receiving complaints from superannuitants who feel robbed of their overseas pensions on a regular basis. However, since the lifting of a moratorium in 2003, most cases of discrimination were not considered to stand any chance of success before the Human Rights Review Tribunal (HRRT) and were therefore dismissed. On top of it all the HRC stamped all cases "in confidence" - which is in breach of the International Convention of Human Rights.
   
   A glimmer of hope came up in 2009/10 when the HRC considered supporting a pensioner who was affected by the Spousal Provision. But when this individual was shut up by paying them full NZ Super despite the partner's "excess" overseas pension and subsequently pulled out of the process, nothing was ever heard of the HRC for many years. It only changed when three pensioners, supported by the Office of Human Rights Proceedings (OHRP), in 2017 complained about being discriminated on grounds of family status, having the “excess” of their or their partner’s overseas pensions deducted from NZ Super.
   
   Some critics say the HRC has been acting like a puppet on a string for a very long time, using the research of the Retirement Policy and Research Centre (RPRC) of the University of Auckland as a fig leaf and far too willingly following the politics of the Government instead of acting true to its name. And all this despite their assurance at the Overseas Pension Forum 2010 in Auckland that they would put pressure on the Government regarding the overseas pension issue, with the goal that justice be served to every New Zealander, not only the majority.
   
   But huge doubts remain about the HRC’s independence, as the Commission is appointed by the Government. According to the owner of the www.nzpensionabuse.org website, with whom I have had many exchanges over the years, the HRC has confirmed that the Government has denied the Commission additional funding, meaning there are enough cases that could be passed to the Human Rights Review Tribunal but are declined due to lack of funds.
   
   It seems as if the Human Rights Commission were hiding behind the complicated Human Rights Act, delaying justice until the end of time. This is not acceptable. And even if they were more critical, the government of the day would not need to listen. The HRC can only make recommendations and pass cases on to the Human Rights Review Tribunal (HRRT) - and their decisions are not legally binding either.
   
   More detailed information can be found on this page:
   
   http://nzpensionabuse.org.s3-website-us-east-1.amazonaws.com/human-rights-commission.html
   
   Pensioners have given up to a toothless HRC and are incessantly lobbying their local Members of Parliament, foreign governments, overseas pension administrators, their embassies, consulates and high commissions in New Zealand.
   

5. Human Rights Review Tribunal (HRRT)
   A hearing regarding the Spousal Provision which would have made life easier for between 400 and 600 of the more than 100,000 pensioners affected by the Direct Deduction Policy was held in Wellington in March 2018. The decision (that nothing was wrong!) was made in October 2020 - well after the New Zealand government had decided to abolish this discriminatory policy.
   
   Like the Human Rights Commission the Human Rights Review Tribunal (HRRT) suffers from a lack of funding. The workload is so overwhelming, as mentioned earlier, that it takes forever and a day until they can decide on cases. In the past years there have been various articles in the media about this system that denies justice due to the delays. More information on this on our page about the HRRT hearing 2018.

Once all Government appeal instances are exhausted, the next steps would be in the courts. This exercise is even more hopeless than the Government process.

The Courts have only examined the lawfulness of the law, not the Human Rights aspect

6. High Court
   After unsuccessful attempts to get the Ministry’s decisions on the deductions overturned in the Ministry-appointed Benefit Review Committee (BRC) and Social Security Appeal Authority (SSAA) where it is next to impossible to get an unbiased hearing and justice, several pensioners have gone to court since 1987. Many cases were badly presented by individuals and their lawyers. Others struggled with expressing themselves correctly on such a difficult topic, particularly when English was their second language. Some were met with open contempt by the court.
   
   Needless to say that all but one complainant lost their cases, as the High Court can only rule if the law has been applied correctly. Therefore, it is useless to waste money on going to the High Court as the deductions are legal. The law allows the legalised theft of overseas pensions, that’s why the law needs to be changed.
   
   The only successful case was the so-called Sant Raj Rai case in August 2004 (decision on 2 September 2004) - and he was successful because MSD had deducted his Fijian civil servants pension which, according to the judge, was "not government-funded". Such pensions must not be deducted from NZ Super. Link to the decision:
   https://fyi.org.nz/request/1945/response/6839/attach/2/Rai%20HC%202.9.2004%20pdf.pdf
   
   MSD subsequently requested a recall from the High Court. MSD Chief Executive Peter Hughes tried to have the wording changed as he feared the definition of the Fijian "not government-funded" pension would open the floodgates and the possibility of having the ruling applied to every single case of direct deduction, as most overseas pensions are not government-funded. But the judge made clear that the ruling applied to government service pensions only and rejected the recall. This decision has been noted in an addendum which was not provided by MSD in the Official Information Act request and publication of the High Court's decision (link above).
   
   In the initial case (Roe, 1987) the then Chief Executive of the Ministry of Social Development (MSD) misrepresented the facts, claiming that the US pension was “income maintenance assistance”. There are a few experts in the long line of protesting pensioners who can give a lot of detailed information on this issue, particularly the owner of www.nzpensionabuse.org who has also written the appeal to the UN Human Rights Council and narrated the story on YouTube. The biggest scandal was that the High Court judge didn't request an official opinion from US Social Security on the nature of the US Social Security pension. That's why this ruling can be, without any doubt, be called a miscarriage of justice.
   
   Subsequent rulings of the High Courts were based on the infamous and flawed Roe case, and no-one has ever questioned the rightfulness and discriminatory nature of the law, and how the God-playing CEO of MSD made the lives of so many people misery, just by declaring about any overseas pension similar to NZ Super and therefore deductible from NZ Super, based on the fact that they were – pensions!
   
   As said, the High Court can only rule if the existing law has been applied correctly. One would think that a good and unbiased judge would at least say that there aspects of unfairness and discrimination in the law and that the Government should review the law, just as a recommendation. And why can no judge say that the ruling in the first, the Roe case, they all base their decisions on, was questionable? But no such view has ever been expressed, no doubt and no questions. This puts New Zealand’s Human Rights Commission back into focus, as no pensioner can afford to go to the Supreme Court and challenge the law there.
   
   Good information on the role of the courts and the Roe case from 1987 on this website:
   http://nzpensionabuse.org.s3-website-us-east-1.amazonaws.com/the-infamous-roe-case.html
   http://nzpensionabuse.org.s3-website-us-east-1.amazonaws.com/files/Roe_v_Social_Security_Commission.pdf
   
   Links to some subsequent High Court cases:
   Dunn (2009): http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZHC/2007/1342.html?query=title(dunn%20and%20social%20development%20)
   
   Horn (2010): http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZHC/2010/1988.html?query=roe%20social%20security%20commission
   
   Malster (2014): http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZHC/2014/1368.html?query=roe%20social%20security%20commission
   
   Fountain (2017): http://www.nzlii.org/cgi-bin/sinodisp/nz/cases/NZHC/2017/2144.html?query=roe%20social%20security%20commission
   
   

7. Supreme Court
   No pensioner can afford to challenge the Government at the Supreme Court. Christopher Arnesen compared the numbers in 2015. Then the annual NZ Super income (which none of the pensioners affected by the Direct Deduction Policy received!) was NZ$ 18,800 before tax. The cost of going to the Supreme Court was about NZ$ 100,000 - five times a pensioner's annual income! And this pensioner would have gone against Crown Law and MSD which - in 2015 - had set aside NZ$ 33.4 million for solicitor fees alone!

And in comes the UN...

Due to the hopeless domestic remedy situation a complaint was sent to the UN Human Rights Council in 2014. It was dismissed without further discussion after the UNHR Council received a deceiving reply from the New Zealand government in which e.g. the Spousal Provision (which was only abolished in 2020) wasn’t even mentioned, and my contribution was dismissed because I wasn’t affected by the policy.

The New Zealand government is obviously of the belief that e.g. if someone is murdered only the dead person should be allowed to report the murder and not the witnesses of the murder.

Another complaint sent off by a big group of pensioners to the UN Human Rights Commission in August 2020 has never been really dealt with. Most have not even received a reply until today (November 2021). This takes the shine off an organisation that prides itself of being the world's conscience.