The Human Rights Commission (HRC) has been receiving complaints from superannuitants who feel robbed of their overseas pensions on a regular basis. However, most cases of discrimination were not considered to stand any chance of success before the Human Rights Review Tribunal (HRRT), and were therefore dismissed.

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.

We had got a different impression at the Overseas Pension Forum in Auckland in early 2010. There, the HRC announced to put pressure on the Government regarding the overseas pension issue, with the goal that justice be done to every New Zealander, not only to the majority.

The HRC also agreed to sponsor a second Overseas Pension Forum at the end of August 2010 in Wellington, so the organisation gave us the impression is was willing to take a stance and play its part in making the topic known to the public.

But fast forward three and half years to January 2014, and literally nothing has happened until 2017 that would be worth praising the HRC for. Then it accepted the case of three complainants who suffered discrimination under the Spousal Provision policy. This is the case that went to the HRRT in March 2018 - which, in a remarkably outlandish decision, found two and half years later (in October 2020) that nothing was wrong with the policy. In the meantime the Government had changed the law and abolished the Spousal Provision because they were sure the HRRT would decide against them.

No answers

Before 2014 we had contacted the HRC on two occasions and demanded answers to our questions about the progress of one re-established case which they had dismissed previously like so many others. But we have never got a response. This shows the real spirit of this organisation which depends on funding from the Government. We have to admit that we have been too optimistic regarding the stamina of the HRC.

What we do know is that the pensioner who had suffered discrimination on the grounds of family status (Spousal Provision) had pulled out of the process. (And received NZ Super - probably to shut them up.)

Before the abrupt end of this story their activity obviously never went full steam ahead. From waiting nearly four years for any noticeable action from New Zealand's Human Rights Commission, we could only assume that the issue had been put to rest. In total, ten years of hope were dashed before the three brave pensioners took on the Ministry of Social Development (MSD) in 2017.

If there had been the will to fight for the abused pensioners, the HRC would have had the possibility to find a new front man or woman for the fight earlier. The RPRC and also we had plenty of names and contacts and later provided them to the Office of Human Rights Proceedings (OHRP) which represented the pensioners for free at their HRRT hearing.

The HRC had made clear that their work had to focus on the unrightfulness of the Spousal Provision, as you will see when you study the structure of the Human Rights Act (see article under the photo on this page) and the need for establishing a case of discrimination. We kept an eye on it and have seen nothing that would justify even the HRC's existence. If the Spousal Provision was no blatant breach of Human Rights, there is not a lot they can focus their attention on in New Zealand.

We cannot judge from an expert's point of view, as the issue is a hugely difficult legal discussion, and we are no lawyers. But using common sense, we cannot always follow or accept the conclusions of judges. In our opinion, at least the paragraph about Spousal Provision (SP) in former Section 70 (now Sections 187-191) of the Social Security Act was in breach of Human Rights, as it clearly discriminated against pensioners who were in a relationship with someone who received an overseas pension. Spousal Provision was discrimination on grounds of family (formerly: marital) status. No-one could have underlined this better than the WINZ worker who told Ruth Humphrey: "You are married to the wrong man!"

Two steps towards a fairer treatment of pensioners

Therefore it should have been a no-brainer for the Government to abolish the Spousal Provision much earlier than 2020 as the first step towards a fairer treatment of pensioners who are linked in any way to overseas pensions.

The second step - the abolition of the Direct Deduction Policy (DDP) - is more difficult. People who take their cause to the High Court in this country might make themselves heard and contribute to a kind of discussion. But in the end they waste their time, energy and money.

High Courts can only examine if a law is applied correctly

The High Court can only decide if DDP is lawful. And this is what it has done many times. Of course, it is lawful to deduct overseas pensions from NZ Super as long as Sections 187-191 is part of the Social Security Act and therefore law. Our opinion and common sense does not make the law unlawful. The law has been introduced to make the Government's large-scale money-raising spree legal. So the goal of our fight has to be the law change, and not to additionally feed the High Courts with our money through legal fees.

At the Overseas Pensions Forum in Auckland Rosslyn Noonan, at the time the Chief Commissioner of the Human Rights Commission (HRC), made some very important points about the need to review (former) Section 70 of the Social Security Act that allows the deduction of overseas pensions from NZ Super, and causes such a lot of grief among retiring immigrants, Kiwis who have worked overseas for many years, or simply were married to an immigrant or returning Kiwi.

Rosslyn Noonan placed the issue in the context of the right to an adequate standard of living. "Human rights", she said, "are not only about discrimination but also about the standard of living and participation in social life."

It is essential to supplement national superannuation

To alleviate poverty at old age it is important that people supplement national superannuation with savings during their working lives. (Editor's note: This would mean that the NZ government does not hide Sections 187-191 from potential immigrants and Kiwis who plan to work overseas and retire back home in New Zealand, so they can make an informed decision. The way it is now they think their overseas pensions are the savings they need to supplement their future NZ Super.)

The former Commissioner also placed the treatment of immigrants into the context of New Zealand's urgent need of immigrants and Kiwis returning home after their OE. "Large scale migration is a global reality today", she said. "Being globally mobile will be an increasing feature of the working lives of our children and grandchildren. So it is important that we don't bequeath this problem to them."

Rosslyn Noonan wanted to encourage a "strong national discussion", based on the principles of democracy and the engagement of citizens "who identify injustice, an unfairness, a breach of human rights, and work with others to build support to rectify it". She requested a "fair and efficient" outcome of the discussion for which the Retirement Policy and Research Centre (RPRC) has provided a solid base with its Working Papers. From there work should begin "for a more principled, transparent, fairer and more efficient approach to dealing with national superannuation and overseas pensions in this age of growing global migration and labour market mobility".

The Government has to be forced to listen and act

She warned the NZ government that "New Zealand's economy can only flourish if immigrants come to New Zealand and societies are mobile. Therefore the Government has to be forced to listen and act." Life has taught her, she said, that persistence is the most efficient tool to finally reach a goal. This conforms with our idea of pensioners making themselves heard: protest, be loud, make noise and do not shut up.

The second big contribution of the Human Rights Commission was to go into detail on the topic of discrimination. Sylvia Bell, the HRC's Principal Legal and Policy Analyst, had identified a few cases that could be progressed under the anti-discrimination provisions of the Human Rights Act, and explored ways of intervening in the policy process in relation to those cases. The bad news for pensioners: many cases are certainly unfair but do not legally constitute unlawful discrimination.

The second bad news: before you can complain with the United Nations you have to have exhausted all national resources. We think this point has now been reached after the HRC failing to push the New Zealand government into the right direction and the unwillingness of the High Courts to question the discriminatory law. Reality is that the UN are even more unwilling to act and are happy to accept the misrepresentations and lies the New Zealand government has tabled.

The Human Rights Act is a beast

The Human Rights Act is also a beast as it is clearly structured and neatly identifies the prohibited grounds of discrimination, and how discrimination is defined and tested. In the end Sylvia Bell quoted some cases like: XY v Company 1 and YX v Company 2, not forgetting the famous "Roe case", and why they were successful or unsuccessful in the Court of Appeal or Supreme Court. Without detailed knowledge of the cases it was impossible to follow the conclusions. But the message was clear: if you are not supported by the Human Rights Commission you stand no chance of getting anywhere.

The big hope at the time was that Ruth Humphrey would be properly supported and therefore stand a chance to succeed with her complaint. However, the case imploded, as said above. And apart from that the Tribunal's findings are not binding for the Government.

"The issue is the nature of the pension, not nationality or country of origin", said Sylvia Bell, "and marital status, family status is the way to go. But the track of litigation takes years." As we have seen, it has taken another ten years until 2020.

But even before that it was clear: Even if successful, this would only mean the abolition of the Spousal Provision - not of the Direct Deduction Policy in general. This is why it is so important to keep on campaigning against this unfair policy that affects more people by the day.

More information:

If you want to read about High Court cases in more detail you can find some examples on the NZ Pension Abuse website here and here.