AN APPEAL TO THE HUMAN RIGHTS COUNCIL

OF THE UNITED NATIONS

AGAINST THE DISMISSAL OF COMMUNICATION 217

By Christopher Arnesen

INTRODUCTION

The complaints made against the New Zealand Government (the Crown) and submitted to the Council involve Section 70 of New Zealand's Social Security Act (s 70) and the Spousal Provision.

The Response from the Crown begins with a plea that the communication is characterized by a significant lack of substantiating information, making it difficult to understand the scope of the complaint and the allegations made against it - then admits that nine individuals have submitted supporting information.

The above marks the first attempt to mislead. The Crown understands perfectly the allegations made against it, setting out to systematically discredit the various complaints.

In the copy of the Crown's Response released under the Official Information Act all names have been deleted for privacy considerations, except mine. I have not seen any of the other fifteen complaints but know that they involve allegations of injustice over the application of Section 70, the direct deduction of overseas contributory retirement schemes from the state pension, New Zealand Superannuation (NZ Super) entitlement.

Some of the complaints concern the Spousal Provision where the right to NZ Super of an individual who has lived and worked his/her entire life in New Zealand is adversely affected if his/her spouse or partner has paid into an overseas retirement program.

Please note: throughout the text to follow, where reference is made to specific statements in the Response, Page numbers will be abbreviated to P., paragraphs to p.

INADMISSIBILITY

The Crown alleges that the complaints are inadmissible on the following grounds:

(1) the communication is asking the Committee to reconsider its decision in S.B. v New Zealand.

(2) Under article 1 of the Protocol ratione personae because it is not the communication of an individual, that some complaints have failed to demonstrate that they have been commonly affected by Government action or policy, and that other complaints are brought on an actio popularis basis and are inadmissible for that reason.

(3) Under article 2 of the Protocol ratione materiae none of the complaints is sufficiently substantiated. None of the authors provide sufficient information to establish any violation of the Covenant. All authors omit important information such as details of the nature and amounts of overseas pensions.

(4) Very few complaints refer to specific provisions of the Covenant, and

(5) none of the complaints establish that there has been any violation of article 26 of the Covenant.

(6) Under articles 2 and 5(2) of the Protocol, none of the authors show that all domestic remedies have been exhausted.

S.B. v NEW ZEALAND, 475/1991

Although the Crown claims that S.B. v New Zealand cannot be revisited, there is nothing in the HRC's Complaint Procedures stipulating that new complaints cannot be accepted where the same complaint has previously been examined by the HRC. Moreover, New Zealand has never been one of the nations to declare it does not recognize the jurisdiction of the HRC under the Optional Protocol to consider complaints which have already been considered under other international complaint procedures.

In spite of the Crown's assertions, I am not aware of any complainants asking the Committee to reconsider its decision in S.B. v New Zealand, or of anyone's awareness of this case which was heard a quarter of a century ago. However, as the Crown has made an issue of this case (P. 8, p. 23.4. and P. 20), re-visiting S.B. v New Zealand is justified.

S. B., a British citizen, moved to New Zealand to join his family, having previously lived and worked in the United Kingdom and then Jersey. While living in Jersey he received the full, inflation-adjusted UK pension and 18% of the Jersey retirement pension. On moving to New Zealand, the UK authorities informed him that his British pension would no longer be inflation-adjusted. Pursuant to a treaty with the U.K., S.B. successfully applied for NZ Superannuation to replace his British pension.

New Zealand authorities subsequently threatened S.B. for not declaring his Jersey pension, though waiving any claim for repayment after he submitted that the Jersey pension was employment-related and not a social welfare benefit. S.B. complained to the United Nations of pension discrimination against foreign immigrants in that NZ citizens could receive the social welfare pension plus any private pension. Unsuccessful in establishing discrimination, his complaint was dismissed.

INTERIGHTS, the London-based International Center for the Legal Protection of Human Rights, made the following astute comments on this case:

'The Committee seemed to regard both the Jersey and United Kingdom pensions as social welfare benefits despite S.B.'s claim that the former was employment related. However, there clearly is a difference between state pensions provided as a safety net and those which are a form of enforced provision through individual contributions assessed according to salary. If the latter had been involved then S.B. should surely have been treated as someone voluntarily paying into a private scheme.'

In the most subtle of several attempts to mislead, S.B. is described as a “British pensioner” (P. 8, p. 23.4). S.B. was a British citizen but not a British pensioner. The pension associated with his complaint was from Jersey.

Jersey is often considered part of the United Kingdom but it is not covered by New Zealand's social security agreement with the U.K.. New Zealand has a completely separate social security agreement with Jersey. None of the complaints submitted to the United Nations in 2014 involve pensions from Jersey and therefore cannot be considered the same as S.B.'s complaint.

LATIN LEGAL DEFINITIONS

The Crown's use of Latin legal terms (actio popularis, ratione loci, ratione materiae and ratione personae) is questionable considering that not one of these terms is listed in New Zealand's Legal Dictionary. Requests were made to the American Bar Association for translation.

Retired Attorney Sarah Patterson of California replied that in all her years of practice she had never come across any of these terms, and dismissed them as pretentious. Judge Alvin Hersh of New Jersey (also retired) was likewise unfamiliar with these terms, but suggested visiting USLegal.com where definitions under American Law were finally obtained.

The term ratione loci (P. 8, p. 24.2), by reason of the place involved, will not be questioned as this appears to involve a complainant who is not subject to the jurisdiction of New Zealand.

However, substituting the meaning as per US law of ratione personae in the Crown Response (P. 7, p. 23.1) with the definition, a state that is a party to an international treaty can take part in international dispute resolution processes, and ratione materiae (P. 7, p. 23.2 and 24.1), the court's authority to decide a particular case, neither make sense. Similarly with actio popularis, a lawsuit brought by a third party in the interests of public order.

Through the use of Latin legal definitions that are obscure to most people, the Crown appears on one hand to be saying that a complaint is inadmissible because it is not the communication of an individual, then on the other hand it appears to be saying that other complaints are inadmissible as they are the communication of a third party in the interests of public order (P. 7, p. 23.1). The latter argument is incomprehensible. 'Summa jus, summa injuria.'

If the Crown examined the UN's Complaint Procedures it would find that communications are admissible from a person or group of persons claiming to be victims of violations of human rights. Furthermore, as outlined in the Human Rights Proceedings criteria for admissibility:

'A communication is admissible if it is submitted by a person or a group of persons claiming to be the victims of violations of human rights'.

In addition, article 1 of the Covenant reads:

'A State Party to the Covenant that becomes a Party to the present Protocol recognizes the competence of the Committee to receive and consider communications from individuals who claim to be a victim of a violation by that State Party of any of their rights set forth in the Covenant...'

Article 1 specifies “individuals”, plural. The Crown's argument is not acceptable.

ARTICLE 2(1) OF THE COVENANT

The allegation is made that article 17(2) of the Universal Declaration of Human Rights (UDHR) is not a right contained or replicated in the Covenant, P. 8, p. 24(1).

Article 17(2) of the UDHR states:

'No one shall be arbitrarily deprived of his property'.

The Covenant follows the structure of the UDHR. Article 2(1) of the Covenant states:

'In no case may a people be deprived of its own means of subsistence'.

Any pension, a source of income, is a means of subsistence. Therefore article 17(2) of the UDHR is a right replicated in the Covenant, article 2(1). The Crown's argument is not valid.

The Crown maintains that it does not violate article 17(2) of the UHDR nor the Covenant, article 2(1), claiming that the effect of Section 70 of the Social Security Act is not to deprive any person of any overseas pension entitlement or “property” (P. 9, p. 27.2).

The Crown then admits (P. 19, p. 53):

'To that extent, any overseas pension entitlements derived from compulsory government administered contributory schemes will be captured by s 70' (underlining mine).

The word “captured” is a synonym for seized. Deprived is a gentler term for seized or captured.

ARTICLE 26 OF THE COVENANT

Reference is made (frequently) to article 26 of the Covenant, namely that few if any complainants have specifically referred to article 26, and that the Crown is not and never has been in breach of article 26. Article 26 states:

'...guarantees to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status' (underlining mine).

“Or other status” applies to Communication 217 as victims of discrimination. Section 70 of the N.Z. Social Security Act captures retirement savings of individuals who have not lived or been able to live their entire lives in New Zealand. With the exception of the Spousal Provision,

s 70 does not penalize in like manner anyone who has lived his/her entire life in New Zealand.

Although there may be no such precedent in the HRC's experience, discrimination towards individuals who have not lived their whole lives in the same country, as shown in the previous paragraph, is a form of discrimination - peculiar to New Zealand. An impartial Committee should not fail to recognize it as such, and accept that this form of discrimination breaches article 26 under “or other status”.

This form of discrimination is further exacerbated through New Zealand's second-tier contributory retirement savings plan, KiwiSaver.

KIWISAVER

The HRC graciously permitted me to submit an addendum (11/25/14) elaborating on the KiwiSaver scheme which the HRC will have on file. Revisiting salient points is warranted.

On the defensive, the Crown emphasizes differences between NZ Super, its KiwiSaver scheme and overseas contributory pensions captured under s 70 (P. 18 and 19). It sets out to convince the HRC that the KiwiSaver program is not compulsory but a private scheme, nor government-administered (the Crown's foremost excuse for capturing overseas pensions).

As pointed out in the addendum, whether KiwiSaver is a compulsory or voluntary scheme is a gray area. The Crown is skating on thin ice when it insists the scheme is purely voluntary.

If KiwiSaver is allegedly a private savings scheme, it is worth noting that many countries with compulsory pension systems (pensions which are being captured under s 70) require contributors to contribute to private pension accounts (as confirmed by the public service - refer: Review of NZ Super Portability).

Even with government-backed retirement programs, individuals should assume an element of risk, as do individuals investing in KiwiSaver. In New Zealand, government surpluses have been paid into a Superannuation Fund to ensure the future affordability of NZ Super, the funds invested in various sectors both nationally and internationally. During the 2000 – 2009 Labour Government, Finance Minister Dr Cullen lost some $4 billion of the Superannuation Fund through unfortunate investments. No superannuitant suffered as a result.

Although it is not carved in stone, if any company holding KiwiSaver investments from thousands of New Zealanders filed for bankruptcy, the elected Government would have little choice but to step in and cover the investors. Or face political ruin.

The Crown denies that KiwiSaver is government-administered, then admits (P. 18, p. 51.5):

'investment funds are collected by the Department of Inland Revenue, being the Government agency responsible for the administration of revenue'.

Any distinctions that the Crown is drawing between New Zealand's government-sponsored KiwiSaver and government-administered overseas contributory pensions are arbitrary.

It makes little difference whether a retirement program is government-sponsored, backed, initiated, funded or administered - there can be no denying government-involvement in KiwiSaver. Up to and including the date Communication 217 was submitted to the U.N., it even included some government funding. KiwiSaver is not a totally private retirement plan.

The Crown avoids mentioning that New Zealanders working offshore are barred from investing in KiwiSaver. Consider the following contrasting situations:

(A) The New Zealander who has invested in the N.Z. Government's second-tier retirement plan, on retiring will receive both full NZ Super and his/her full entitlement to KiwiSaver.

(B) The New Zealander working abroad who wishes to put money aside for his/her retirement in any scheme similar to KiwiSaver has those savings deducted from NZ Super entitlements.

The difference between the two situations above, according to the Crown, is that situation (A) is private and not government-administered whereas situation (B) is not private and is government-administered. However the Crown has failed to establish a credible distinction between the two: KiwiSaver is no more private than many of the overseas pensions captured under s 70, and it has already admitted to the Inland Revenue Department's administrative responsibility. The IRD may be only partially responsible, but so too with several overseas pensions where government administration is only partial.

Applying s 70 to capture overseas contributory pensions but not to KiwiSaver reinforces the claim: New Zealand's social security legislation designed to capture overseas contributory pensions discriminates against those individuals who have not lived, or been able to live, their entire lives in one country and violates article 2(1) and article 26 of the Covenant.

SUPPORTING INFORMATION

The Crown insists that Communication 217 be found inadmissible on the grounds that none of the authors have provided sufficient information to establish any violation of the Covenant, that very few complaints refer to specific provisions of the Covenant, and none have provided important details such as the nature and amount of overseas pensions.

In the instructions and conditions attached to Human Rights Proceedings, there is nothing listed which states that persons submitting complaints must or even need to refer to specific provisions of the Covenant. Few if any of the complainants would have had any knowledge of the various articles or provisions of the Covenant.

Insofar as providing supporting information, the individuals submitting complaints were each informed that they could not exceed 8 pages. It is believed that every person submitting a complaint rigidly complied. Decisions not to add printed documentation were no doubt due to misunderstanding over the page limit.

My own submission made reference to an historic court decision, The Roe Case (9 pages), and to an important document known as the Review of New Zealand Superannuation Portability (37 pages). To get around the page limitation, the HRC was referred to websites where this information could easily be accessed. It is not known if other complainants referred the HRC to information sites in a similar manner.

The accusation of failing to provide details such as the nature and amount of overseas pensions is unreasonable. All that needed to be established by any complainant was that overseas retirement savings (whether German/Irish/Canadian/US or whatever) were being unjustly targeted by s 70 of New Zealand's Social Security Act. Including those persons affected by the Spousal Provision, these facts would have been satisfactorily established.

The Crown is not justified in declaring the communication inadmissible on the basis that complainants have not specified the amounts of overseas pensions received and the amounts by which NZ Super has been reduced - when the Crown had a responsibility to inform the HRC that every month it has to recalculate the amounts by which NZ Super payments will be reduced due to fluctuating currency exchange rates.

The complainants may have been ill-prepared, but the communication was a submission from a small group of decent, hard-working elderly people of varying degrees of literacy, several of whom struggling with English as a second language. They all had in common a complaint of injustice in New Zealand and only turned to the United Nations with the realization that pursuing the so-called domestic remedies was hopeless.

Nobody considered it necessary, or could afford, to seek assistance from solicitors or lawyers before submitting their complaints to the U.N. Throughout the Crown's Response, there is an ever-present inference that the communication is the work of amateurs and must be dismissed as it fails to comply with basic legal criteria.

Surely the United Nations does not want to send a message to the world that complaints will only be accepted from those persons who can afford qualified legal assistance?

DOMESTIC REMEDIES: THE COURTS

The HRC makes it clear that complaints will only be accepted provided all domestic remedies have been exhausted - unless it appears that such remedies would be ineffective, unreasonably prolonged, or a fair, impartial hearing cannot be obtained. Affordability would be another consideration.

The various appeals in the High Court of New Zealand against the Direct Deduction Policy have been listed. With the exception of the 2004 Sant Raj Rai case involving the deduction of a Fijian civil servant's pension, every appeal against s 70 in the High Court was dismissed. A copy of the Court Summary in the Roe Case, indicating a miscarriage of justice, is enclosed.

It is correct that not one of the complainants has appealed to the Supreme Court of New Zealand, however, under no circumstances should this be an acceptable reason for dismissing Communication 217. The Crown has omitted any details of the costs involved with both the High Court and Supreme Court, or the affordability of such action for beneficiaries.

The Christchurch law firm Saunders, Robinson and Brown was asked for an approximate estimate of the cost involved in appealing to the Supreme Court and replied as follows:

'It would depend on the hearing and counsel involved (the more QCs, the more expensive it gets). To get to the Supreme Court, you would already have had to have a hearing in the High Court, then you would have to appeal to the Court of Appeal and have a hearing there before you could even apply to appeal to the Supreme Court. In short, it would not be an inexpensive exercise. In addition, the Supreme Court only hears appeals that are of public interest - you do not have an automatic right of appeal.'

Any individual appealing s 70 in the High Court and the Supreme Court will come up against the combined forces of the Ministry of Social Development (MSD) and Crown Law, two powerful government entities with virtually unlimited taxpayer funding.

No beneficiary living on NZ Super alone could afford to appeal s 70 in the High Court: those who had previously done so had additional funds in reserve to finance their appeals.

The maximum annual amount of NZ Super, after taxes, paid to a superannuitant at the time Communication 217 was filed: NZ$18,772.00.

At a conservative estimate, it would take a beneficiary at least five years of his/her entire income to appeal to the Supreme Court - only to come up against MSD and Crown Law:

In the Forecast Statement for the year ended June 30, 2015, Crown Law alone budgeted on funding from the Crown to the amount of NZ$41,879,000.00, other funds NZ$22,416,000.00, making a total funding of NZ$64,294,000.00.

From the above budget, Crown Law provided for solicitors' fees a total of NZ$33,392,000.00 (the above figures were released by Michael Heron QC, Solicitor-General and Chief Executive, Crown Law).

Comparing a superannuitant's annual income of $18,772.00 with Crown Law's annual solicitors' budget of $33 million plus, then it should be apparent to the HRC why no pensioner has ever appealed to the Supreme Court. And why no pensioner should ever again attempt to appeal s 70 in the High Court.

OTHER DOMESTIC REMEDIES

The Crown maintains that complainants have failed to pursue domestic remedies, then outlines the various domestic remedies available. In a serious omission, the Crown has failed to provide any facts, any statistics, to prove that domestic remedies can be effective. It could not do so – supplying facts and statistics would have completely destroyed the Crown's case.

The first avenue of appeal is to address complaints to the Minister of Social Development. Former Minister David Benson-Pope revealed that his office received in excess of 4,000 letters each year complaining about s 70. A copy of the Minister's letter cannot be supplied - it was lost when my home was destroyed in the worst of the Christchurch earthquakes. In lieu, a quote will be supplied from the Review of NZ Superannuation Portability (Report 2004):

'The degree to which people find the policies unfair can be illustrated by the fact that their complaints constitute a significant proportion of all correspondence to the Minister of Social Development (and his associates) and complaints are frequently received by the Minister of Finance.' (Report 2004, P. 13)

Every letter of complaint merits a perfunctory but polite acknowledgment and is then dismissed. To date, not one Minister in office has offered to provide any form of remedy.

The HRC is reminded of another domestic remedy - petitioning Parliament - which has been ignored by the Crown but was highlighted, along with its treatment, in my original submission.

Individuals can appeal the direct deduction of their overseas pensions before the Benefits Review Committee. Three persons are appointed to the Committee, two MSD officers and one outside appointee. The MSD officers, who are the majority, cannot rule in disagreement with government policy - the reason why no one has successfully appealed s 70 before a Benefits Review Committee. In a letter (6/4/15) MSD supplies the following facts:

Over the past 5 fiscal years, the number of appeals against s 70 reviewed by a Benefits Review Committee: 156.

The number of cases found in favor of the appellant and overturned: 2 (both cases did not involve a state-funded insurance scheme).

The number of cases found partly in favor of the appellant, relating to the date of commencement of the direct deduction policy: 11.

Of the remaining 143 cases appealing the deduction of overseas contributory pensions, the number of cases found in favor of the appellant over the past five fiscal years: none.

Individuals who have not been successful at the Benefit Review Committee level have a maximum time limit of three months to appeal to the Social Security Appeal Authority, a body of the Ministry of Justice. Persons who have appealed before the SSAA routinely complain of hostile, even belligerent treatment and the cloak of confidentiality preventing them from making any details public. It is believed that at least one of the complainants informed the HRC of his experience with the SSAA.

Given the confidentiality surrounding appeals heard by the SSAA, supporting evidence cannot be supplied. Fortunately, MSD has provided revealing statistical information.

The number of appeals involving the deduction of overseas pensions heard by the Social Security Appeal Authority over the past five fiscal years: 19.

The number of appeals relating to s 70 found in favor of the appellant by the Social Security Appeal Authority over the past five fiscal years: none.

Given the above facts and statistics, clearly anyone in New Zealand wishing to appeal the capture of overseas contributory pensions will find that a fair hearing before an independent and impartial tribunal (as stipulated under article 14.1 of the Covenant) is impossible.

THE NZ HUMAN RIGHTS COMMISSION & THE HUMAN RIGHTS TRIBUNAL

The Crown draws attention to the Human Rights Commission of New Zealand (NZHRC) as another domestic remedy, and stresses that none of the individuals in Communication 217 have taken their complaints to the Human Rights Review Tribunal (Tribunal).

Once again, the Crown has omitted any specifics as to the number of persons who have appealed s 70 with the NZHRC, how many appeals regarding s 70 have been considered by the Tribunal, and how many appeals have been successful. The Crown has failed to establish that either of these paths are effective remedies.

The NZHRC is funded through the Department of Justice, but allegedly operates independently of the NZ Government. The NZHRC Chief Commissioner (currently Mr David Rutherford) is a political appointee: whether or not he can make any decisions that go against government policy, and retain his position, may best be determined by examining some facts.

According to information released by Robert Hallowell, Official Information Act Officer, NZHRC (5/18/15), with the lifting of a moratorium on January 1^st 2001 (not 2003), the number of complaints over pension injustice in New Zealand up to the present day received by the NZHRC, including two believed to be still under consideration: 31.

The number of complaints of pension injustice not dismissed by the NZHRC, excluding two believed to be still under consideration: none.

To proceed with complaints to the Tribunal is costly. The Office of Human Rights Proceedings (OHRP) can assist individuals who wish to take proceedings alleging unlawful discrimination to the Tribunal by providing free legal assistance.

The number of persons appealing s 70 with the NZHRC who have been been granted legal assistance by the OHRP to take their case to the Tribunal: none. (Update by NZ Pension Protest, 03.11.2017: ONE class action in the meantime, 2016)

(Former OHPR Director Robert Hesketh explained his refusal to provide legal assistance to persons appealing s 70 as due to insufficient funding to handle cases of such complexity. Generic requests to the Government for increased funding were denied.)

The first complaints of pension injustice received by the NZHRC were sent to MSD, then forwarded to Crown Law for opinion. Crown Law drafted a letter for the purpose of dismissing complaints of pension injustice - used by the Ministry ever since, seldom varying the wording. My submission provided quotes from this format letter.

Of particular note: every MSD letter sent to the NZHRC dismissing complaints of pension injustice is stamped “IN CONFIDENCE”, restricting complainants from seeking wider opinion or advice. Concealing MSD replies behind closed doors violates article 14(1) of the Covenant and article 10 of the Universal Declaration of Human Rights:

'The right to a fair and public hearing by a competent, independent and impartial tribunal'.

The Crown cannot dispute the treatment outlined in this section. If, however, the Council would like hard evidence as to this treatment, please notify me immediately and ample evidence will be in the next mail.

I trust that the United Nations is no longer in any doubt as to the ineffectiveness of domestic remedies in New Zealand.

COST-SHARING: DECEIVING THE UNITED NATIONS

It is beyond belief that the Crown would resort to falsehood. It has done so, presumably confident that the HRC would never question an official statement from the NZ Government.

The Crown informs the United Nations (P. 12, p. 36.1 and P.39, p. 143.1) the purpose of s 70, the Direct Deduction Policy, is that:

'countries may share the cost of provision of social security'.

The exact opposite is true. Section 70 enables the NZ Government to evade social security obligations. Under s 70, wherever possible, other countries are left to provide the retirement income of New Zealand residents while the NZ Government provides nothing.

Section 70 deducts the amount of an overseas pension from NZ Super entitlements. If the overseas pension is equal to or greater than the amount of NZ Super paid to retirees, then the NZ Government provides nothing in the way of retirement income. This is in spite of the fact that 85% of people subject to s 70 have lived in New Zealand 30 years or longer and more than meet the residency requirement for full NZ Super.

Worse, under the Spousal Provision attached to s 70 (scarcely mentioned by the Crown), if a retiree has an overseas pension greater than the amount of New Zealand's state retirement benefit, then the excess is deducted from his/her partner's or spouse's NZ Super entitlement. For any individual with an overseas pension double (or greater than) the amount of NZ Super paid to married couples, neither he/she, nor his/her partner/spouse, receives anything in the way of retirement income from the NZ Government - it is left entirely to another country.

Often the partner/spouse is an individual who has lived his/her whole life in New Zealand. It highlights the absurdity of the Government's standard, truly Orwellian, justification of s 70:

'Those persons who have lived and worked overseas should not be advantaged over New Zealanders who have not had the opportunity to live and work outside New Zealand'.

(A variation of the above can be found P. 39, p. 143.2)

The NZ Government's evasion of providing social security to New Zealanders wherever possible was highlighted in my submission. Given the Crown's fictitious claim of sharing pension costs with other countries, earlier comments will be repeated.

International Labour Convention #157 protects the rights of individuals to state-sponsored pensions they have legitimately earned. European Convention 1408/71 specifically prohibits nations from consuming age-pensions earned in other countries. These conventions are honored worldwide - except by New Zealand.

Roughly one in every four elderly New Zealanders either has his/her NZ Super drastically reduced, or receives nothing at all. Through the application restrictions, there are more than 100,000 “Kiwis” of retirement age who receive nothing in the way of retirement income from New Zealand (statistics released by MSD) - a significant number for a small nation.

All superannuitants resident in New Zealand are required to notify MSD if they are admitted to hospital, or if they plan to travel overseas - if they are absent 26 weeks or more in agreement countries, NZ Super payments are canceled.

To deflect attention away from suggestions that New Zealand evades cost-sharing of social security with other countries, the Crown seeks to convince the HRC that it is acting responsibly, honorably, with the two-pensions-make-a-whole-pension, and the need to comply with the one-pension-principle nonsense (P. 14, p. 41 and 42).

The Crown examined my submission but made no attempt to deny or question any of my comments, avoiding them completely and demanding instead that the submission be treated as inadmissible because of a failure to specify any violations of the Covenant.

Also false: claims that NZ Super is a Universal Pension without means testing (P. 10, p. 30).

The so-called “Universal Pension” is not universal; it is not available to everyone. Rather than termed a pension, it would be more accurately classified as a social welfare benefit.

NZ Super is subject to means testing. All applicants for NZ Super are required to declare if they, or their spouse/partner, are entitled to overseas retirement income. Under s 70, their NZ Super entitlement is reduced by the amount of off-shore income. NZ Super is means tested.

OPINIONS AND JUSTIFICATIONS

Whenever the “intent” or the “purpose” of s 70 is mentioned, it is not law but nothing more than opinion - one person's opinion, the opinion of the solicitor who prepared the Crown's Response. He/she subjects the HRC to endless reasons for dismissing the submissions of each complainant, then resorts, one page after another, to opinion and justifications for capturing people's retirement funds. Anyone repeatedly attempting to justify anything invariably invites suspicions of fraud.

Possibly the most extreme justification in the entire document is found on P. 16, p. 47.4:

'The way in which the overseas pension program is funded is not relevant: there is no difference in substance between a program funded by general taxation and a program funded by employee and employer contributions where the latter is administered by the State, the difference is one of public accounting.'

The above makes reference to Dunn v the Chief Executive, MSD, a High Court case heard in 2008. Without access to court records it is impossible to asses this statement in a wider context but it is inconceivable that, as the statement stands, any judge in New Zealand would have come to such a fatuous conclusion.

There is a difference, a huge difference, between a social welfare benefit provided by the State, funded through general taxation, and a State-administered retirement savings program funded exclusively by employee and employer contributions. What does public accounting have to do with it? What difference, exactly, does public accounting make?

Of countless justifications for s 70 viewed over the past two decades, “the difference is one of public accounting” has not been seen before. With attacks on the familiar justifications of s 70 increasing recently, this represents a new line of defense. What will they come up with next?

Opinion is written into the legislation governing s 70. Section 70 of the Social Security Act, as outlined by the Crown, P. 11, p. 32 (b), states:

'The benefit, pension, or periodical allowance, or any part of it, is in the nature of a payment which, in the opinion of the chief executive, forms part of a program providing benefits, pensions, or periodical allowances for any of the contingencies for which benefits, pensions or allowances may be paid...' (underlinings mine).

The two key elements under consideration here are “contingencies” and “the opinion of the chief executive”. The Crown later changes the word “opinion” to “discretion”, P. 16, p. 47.1 (while routinely insisting that the chief executive has no discretion concerning deductions!)

The most obvious contingency for which benefits, pensions or allowances may be paid is old age. Other contingencies which have been quoted include “government-administered” and “public” (witness “public accounting” above). “Old age” and partially “government-administered” can be applied to KiwiSaver, also the fact that it is not totally private - however these contingencies do not affect KiwiSaver, only foreign retirement schemes.

The Crown has avoided commenting on my complaint to the HRC concerning the “opinion of the chief executive”, namely the extraordinary powers given to a single public servant with no provision to ensure such powers were not abused, along with the chief executive's signed admission delivered to Parliament that, in his opinion, most of the overseas pensions subject to the direct deduction policy have little resemblance to NZ Super.

The HRC was directed to a web-site where this opinion of the chief executive could be seen, a mistake which will not be repeated. A photo copy of the chief executive's admission is attached to this appeal as an appendix.

The opinions and justifications which appear throughout the Response build a persuasive argument that the Crown is fully justified, and acting fully within the law, in its treatment of overseas pensions. It ignores the NZ Government's violation of the internationally accepted treaties, protocols and conventions protecting the rights of individuals to pensions legitimately earned in other countries.

The Crown's Response may have had more credibility if it had provided the HRC with a list of other nations which treat overseas pensions in a similar manner.

DICTATING TO THE U.N., AND NEW ZEALAND'S SOCIAL SECURITY AGREEMENTS

Quoting from Oulajin and Kaiss v Netherlands, the Crown concludes its arguments with an astonishing message to the United Nations (P. 40, p. 144):

'It is for the legislature of each country, which best knows the socioeconomic needs of the society concerned, to try and achieve social justice on the concrete context. Unless the distinctions made are manifestly discriminatory or arbitrary, it is not for the Committee to re-evaluate the complex socioeconomic data and substitute its judgments for that of the legislature of States parties.'

As reasoned in this appeal, the distinctions made are manifestly discriminatory and arbitrary. The Crown adds to the above (P. 40, p. 145):

'It is objectively reasonable for the NZ Government to co-manage its provision of social security with foreign countries through the mechanism in s 70 […] the section is the NZ Government's mechanism for achieving the “one pension principle” in the light of the fact its pension system is structured differently from many states […] this was a complex socioeconomic decision made by the NZ legislature which was reasonable.'

Co-manage? Co-manage social security with other countries through s 70? This is sheer nonsense. Witness the number of countries which have objected to New Zealand's Direct Deduction Policy and have refused to consider social security arrangements with New Zealand. Delete “many states” and substitute “all other states”.

As for “a complex socioeconomic decision made by the NZ legislature which was reasonable”, who says so? The answer is one person, the person who drafted the Crown's Response. New Zealand's Public Service does not agree with this statement as will be shown under the section Review of NZ Superannuation Portability.

Although the Crown has listed the 8 countries with which New Zealand has social security agreements, it is insignificant compared to the more than 200 countries, including major nations such as Germany, Japan and the United States, with which New Zealand does not have any form of social insurance reciprocity.

New Zealand has social security agreements with Australia, Canada, Denmark, Greece, Ireland, Malta, The Netherlands and the U.K. (plus Jersey and Guernsey), each agreement flawed, the source of discontent. It is well known that Canada and Ireland have asked the NZ Government to cease applying s 70 to their contributory pensions only to be curtly informed that “it is an internal matter, mind your own business”. Akin to telling the United Nations that it has “no right to pass judgment on actions we consider in our best interests”.

The fact that Canada and Ireland asked New Zealand to discontinue applying s 70 to their contributory pensions after they had signed agreements with Wellington, suggests that New Zealand authorities during negotiations neglected to mention New Zealand's “co-management of its provision of social security with other countries through the mechanism in s 70”.

Most world nations are fully aware of New Zealand's treatment of overseas pensions and flatly refuse to consider social security arrangements with New Zealand. Sweden is one of the more recent countries to send a message to Wellington, in diplomatic terms of course, “We have no interest in talking - until you clean up your act”. Germany informed New Zealand that it would consider a social security agreement provided New Zealand excluded German pensions from s 70 - New Zealand authorities refused to discuss the matter.

Except for the U.K., New Zealand's few social security agreements are of benefit to a relatively small number of people. After a decade of being shunned worldwide, in 2014 New Zealand finally managed to obtain a social security agreement with a new country - Malta. MSD has confirmed the total number of people to benefit from the agreement: two.

REVIEW OF NEW ZEALAND SUPERANNUATION PORTABILITY

In 2000, shortly after the new Labour Government under Prime Minister the Rt. Hon Helen Clark was elected into office, leading public servants met with Cabinet Ministers to warn them that the nation's retirement program was unstable, inequitable and unsustainable.

Deputy Prime Minister Dr Michael Cullen and Social Development Minister Steve Maharey authorized the public service to prepare a Review of NZ Superannuation Portability to be submitted to Parliament for consideration.

The Ministry of Social Development formed a working group with the participation of senior public servants and departmental heads from the Ministry of Foreign Affairs and Trade, the Ministry of Pacific Island Affairs, the Retirement Commissioner, the Inland Revenue Department and The Treasury. Crown Law was conspicuous by its exclusion.

The Review took 7 years and consisted of 5 reports, the first (a scoping paper) submitted to Parliament in 2001, the final delivered in 2007. With the political fortunes of the Labour Party on the wane, the final report was a watered-down document to appease politicians anxious to avoid major reforms. It did not, however, retract any of the statements of the earlier reports.

The two most comprehensive reports were delivered to Parliament in 2004 and 2005. The 37 page 2004 Report, released under the Official Information Act, is attached in its entirety; only 2 pages from the 2005 Report are included, to avoid repetition (the entire document can be provided if requested). Notable in the 2004 Report: a recommended proportional system with the abolition of s 70, “Package A”, supported by all government departments.

The following quotes from New Zealand's Public Service, from some of the nation's most highly qualified and most influential officials, highlight the true nature of NZ Super in stark contrast to the false impression presented to the HRC in the Crown's Response:

'New Zealand's policies on payment of NZ Super overseas and of overseas pensions into New Zealand are out of date and inequitable'

'New Zealand's international social security policies are unsustainable'

'The direct deduction policy has remained largely unchanged since its inception in 1938. New Zealand's migration patterns have increased and diversified significantly since then making the dollar-for-dollar deduction of on overseas pension from a person's New Zealand benefit entitlement an inexact and often unfair method of sharing social security costs between countries'

'Because these policies have been developed in a largely ad hoc manner they have become inequitable with one another and, in some cases, have diverged from their original policy intent'

"Another problematic aspect of the direct deduction policy is its lack of genuine cost-sharing. The direct deduction policy means that the New Zealand Government often avoids doing so. In addition, it is often complicated to determine whether or not an overseas pension is direct deductible as it is not always clear what type of pension is being paid. For example, many countries have compulsory pension systems that require contributors to contribute to private pension accounts'

'It is customary overseas for each country in which a person has been resident to share a proportionate “burden” of that person's social security costs. The direct deduction policy means that New Zealand often avoids doing so'

'Under the direct deduction policy, a person generally loses their entire overseas pension, as it is deducted dollar-for-dollar from their NZ Super entitlement'

'Our current policy settings are out of step with Members of the European Union and many other countries where emphasis is placed on “seamless social security provision'” for migrant and seconded workers. Such seamless provision is generally afforded by ensuring that each country in which a migrant works proportionately shares the social security costs of that migrant (our direct deduction policy negates this for migrants who retire here)'

'We are significantly out of step with the “seamless” provision of social security adopted in Europe and many other countries overseas, which impacts negatively on other New Zealand Government priorities concerning Positive Aging and immigration'

'New Zealand's international social security policies are inequitable and do not support the Government's policies relating to attracting skilled migrants and Positive Aging'

'Foreign Governments dislike the direct deduction policy which presents risks for international relations and limits the Government's ability to conclude social security agreements. The policy is difficult to administer because it is not always clear which pensions should be deducted'

'As a result, a number of countries do not wish to negotiate social security agreements with the New Zealand Government'

'The extremely low take-up of the portability provisions outside of social security agreements is, we suggest, due to the fact that the residence restrictions prevent a person from applying from overseas […] therefore the portability provisions do not adequately support the Government's Positive Aging principles relating to empowering older people to make choices about where they live'

'Migration forecasts that we can expect sustain high migration flows for some time to come, which will exacerbate problems with the international social security policies. New Zealand will therefore have to address these issues at some point in time. The longer we wait, the harder and possibly more expensive they may become to resolve'

VIOLATION OF ARTICLE 17 OF THE COVENANT

It is not recalled whether or not I ticked the Confidentiality box on the HRC Complaint Procedures form. It is assumed that I did so as there would have been no objection to the HRC using my name, nor would I have wanted my complaint to be mistaken as anonymous.

However, under no circumstances, was permission ever extended to any entity of the New Zealand Government to use my name, in any manner, without my permission.

When a copy of the Crown's response to the HRC was finally received (released under the Official Information Act), all names had been removed for privacy considerations - except mine. My name appears on every page (except page 3) of the document. Without seeking my permission, the Crown has stamped across the bottom of every page:

'XY (name withheld) Communication - New Zealand Government Response (HRC)'

Every attempt to discover the authorship of this document has been blocked. Two identical letters were sent (copy attached), one week apart, to New Zealand's Ambassador to the United Nations in Geneva, Her Excellency Amanda Ellis, requesting the name of the department which prepared the document and its author/s. Neither letter merited the courtesy of an acknowledgment.

A similar letter was sent to the Minister of Social Development, Hon Anne Tolley. Miss Tolley's secretary replied with an apology for distributing the document with my name attached and assured me that my name would be deleted from any further copies. The apology was accepted - but not for the use of my name in the first place. The request for the name of the department which prepared the document was ignored.

With the silence surrounding the origins of the Crown's Response, I can only hold New Zealand's Permanent Mission to the United Nations, and Ambassador Amanda Ellis, responsible for presenting an official document to the United Nations with my name attached but without my permission to do so.

It is possible that the document was presented to the U.N. without my name attached. I have no way of knowing - but the HRC certainly will know. If in fact the Crown's Response, as received by the U.N., was stamped “XZ (name withheld) Communication”, then it was presented to the U.N. in violation of Article 17 of the Convention, a breach of my right to privacy. If this is correct, then I insist that the Crown's Response must be declared inadmissible.

CONCLUSION - PREFACE

First, I would like to point out that, unlike the other complainants, I am not directly affected by s 70, the Direct Deduction Policy used to capture overseas pensions. I am indirectly affected, having, as explained in my submission, lost the right to a legitimately earned United States Social Security pension due to New Zealand's internationally unacceptable retirement policies, including s 70.

On this basis, I had an inalienable right to join the other persons filing Communication 217.

CONCLUSION

Throughout the Crown's Response there is an impression of superiority and contempt, that the complainants should be treated as incompetent, easily dismissed, and that the HRC would never closely scrutinize an official document from a country consistently rated as either the first or second least corrupt nation in the world.

No blame can ever be leveled at the HRC for accepting the Crown's case as satisfactory. However, for the 16 individuals who had come to realize that there was no longer any hope of achieving justice at home and who had only appealed to the United Nations as a last resort, the dismissal of their hopes for justice was greeted with shock, disbelief and bitterness.

It has taken months to obtain copies of the Crown's Response, to examine in detail the claims put to the HRC, then collect the evidence which leaves no doubt that the Crown had been repeatedly misleading the United Nations.

The 16 individuals who submitted Communication 217 to the U.N. in February 2014 may have been in their twilight years, ill-prepared, several struggling with English as a second language, but they had one thing in common - victims of discrimination by the N.Z. Government.

Compared to the misery and horror facing millions of people in the Middle East and parts of Africa, pension grievances may be considered trifling from a handful of old folk living in this small but prosperous island nation in the South Pacific where no one starves or has to flee their home in terror. All the same, the HRC can no longer lightly dismiss the complaints from New Zealand with the provision of new evidence clearly indicating manifest injustice.

Should, however, the HRC continue to accept that New Zealand's treatment of persons with overseas contributory pensions is satisfactory, and should the N.Z. Government continue to delay addressing pension inequality, then the U.N. will be confronted with more and more complaints of pension discrimination from New Zealand, sooner rather than later.

As we have seen with references to S.B. v New Zealand in connection with Communication 217, will reference be made, when dismissing future complaints, to XY (name withheld) v New Zealand, or the XY (name withheld) Communication?

I would like to make it clear to the HRC that I have no desire to have my name associated with failure - due to the fact that the United Nations unwittingly gave credence to a document which was inherently dishonest.

I respectfully request the Secretariat of the complaint procedure of the Human Rights Council re-examine Communication 217 in light of the content of this appeal and accompanying evidence.

It is my fervent wish that the United Nations will now publicly recognize injustice - or discrimination - on the part of the New Zealand Government. In doing so, there is every likelihood that it will prompt the nation's elected representatives to adopt the reforms for a more equitable retirement program that were urged more than a decade ago.

Sincerely yours

Christopher Arnesen

(The following appendixes are not attached or linked here on this page)

Appendix A: New Zealand Government Response to the United Nations (40 pages)

Appendix B: Letter with statistics from Ministry of Social Development (2 pages)

Appendix C: Letter with statistics from New Zealand Human Rights Commission (2 pages)

Appendix D: Signed admission from MSD Chief Executive (1 page)

Appendix E: Review of New Zealand Superannuation Portability, 2004 (37 pages)

Appendix F: Court Summary of the Roe Case (9 pages)

Appendix G: Letter to New Zealand Ambassador in Geneva (1 page)

13 August 2015