Last updated 05:00, February 5 2017
Paul Norfolk of the NZ Seniors Party is launching a class action lawsuit against the Government.
The New Zealand Seniors Party is organising a class action lawsuit to sue the Government for billions of dollars of what they say is "stolen" money from overseas pensions.
Under section 70 of the Social Security act expat New Zealanders or migrants, upon reaching 65, will have their superannuation docked depending on how much they receive from their overseas pension.
Figures released under the Official Information Act showed last year more than 85,000 people were affected by the legislation to a tune of almost $350 million.
This has grown from 50,000 people and $207 million since 2007. A total of almost $2.5 billion dollars has gone back to the Government since 2007.
*Renewed calls to review unfair 'theft' of pension funds
*Retiree takes case to Human Rights Review Tribunal
*Overseas pension inquiry shelved
*Time to address NZ Super-immigrant policy
Party executive member Paul Norfolk said it was organising a law suit to sue the Ministry of Social Development and get some of that money back.
"There is a great deal of interest. What we don't want to do is show our hand. We are looking at this and we are investigating."
He said the lawsuit would seek reparations from the money docked by the Government under an "unfair" and "fraudulent" policy.
"We could bring the Government down with this because it's billions."
Section 70 treats all government administered overseas pensions the same regardless of whether people pay voluntarily into them or not.
"If you worked in the UK and saved an amount of money and when you come back to New Zealand it was taken off you, I don't think you would like that," Norfolk said.
He cited a court decision in 2004 in which a Fijian man challenged the Ministry of Social Development on section 70 and won. He was able to keep both his New Zealand pension and Fijian pension.
A recent review by the Commission for Financial Capability recommends specifying that voluntary contributions to overseas pensions not be deducted from New Zealand superannuation. It also calls for an immediate change in a clause in the law that means a person's pension can be docked if their spouse gets an overseas pension.
The lawsuit comes on the back Nelson man's case against the Government being accepted to be heard by the Human Rights Review Tribunal. Malcolm Larsen's pension is deducted because his Norwegian wife receives an overseas pension. However, he said that it was unfair as he had lived and worked in New Zealand all his life.
A Ministry of Social Development spokesperson would not comment on any pending legal action but said the aim of the policy was to ensure that all qualifying New Zealand residents receive an equitable level of state pension.
"Equitable" meant having regard for the interests of both pensioners and taxpayers.
"The policy means that New Zealanders who have lived in New Zealand all their lives are not disadvantaged compared with others who have worked overseas, or immigrants to New Zealand who have entitlement to overseas state pensions."
Norfolk said this was "nonsense".
"(The Ministry) talks about us disadvantaging Kiwis but we are the ones being disadvantaged."
He said the lawsuit was being prepared but would not give a timeline. He invited those interested in forming part of the class action to get in contact with the NZ Seniors Party.
Norfolk said he agreed with NZ First MP Denis O'Rorke's Private Member's Bill which proposed throwing out Section 70 and offsetting the losses to the Government by increasing the time required to be eligible for New Zealand Superannuation from 10 years living in New Zealand to 25.
O'Rorke said he was confident that if his bill was drawn it would have consensus in the house and called on the Government to adopt as its own.
"Currently the law is an absolute mess. This will make it much simpler ... It's common sense stuff."
He said 25 years residency before becoming eligible for superannuation was much more common around the world than 10 years.
"This bill will be much less controversial and more accessible and has support of academics and experts generally."
- Sunday Star Times
NB I would expect this potential lawsuit could also investigate various illustrations of the loopholes being easily exploited by some sorts in times past by ... but thankfully like various other extremely slow legal changes ... it now looks like some of these unfair injustices are now being recognised ... and some efforts to reach a better balance are being explored betters perhaps?
Also very interesting to my mind that no mention has been made of any parallels with pensioners being punished by MSD for voluntary donations overseas .... to KIWISAVER contributions in this article too imho ....
IMHO the trickledown effects of a suggestion of 25 years residency for Superannuation may also interface and simplify some differences with various other MSD and MOH policies ...and of course ACC claims for visitors or new immigrant folks with less than 5 years habitual residency too may also be explored too perhaps?
Unfortunately one of the main difficulties that can rear its ugly head too is the issue of *habitual residence* ...this is because legal definitions and policy interpretations can be slightly different between international instruments which manage aspects of social security, taxation and compensation etc
I do know that for some agreements I have perused ... it can be a minimum of two, three or five or more years residence is mandated before certain assistance can be accessed etc In the old days there was a lot of leeway within the kiwi agencies but since benefit tourism and other trickery has become more visible ..nowadays some hospitals will routinly ask for passport and other verifications etc Unfortunately lots and lots of bad debts been written off over the years etc
I have also noted that Biometric data and facial recognition is already be used by some kiwi agencies ... so it may only be a short time before these same tools and protections are being used by ACC and WINZ etc Not just for security matters ... but also for the release of any taxpayer funds perhaps?
AFAIK the kiwi immigration system has also always been fairly lenient on some foreigners with some *certified mental illnesses* too ... or even other work incapacity conditions overseas like alcoholism &or other difficulties by the applicant etc Unfortunately many of these problems can then be easily reframed &or manipulated ...or just simply ignored or hidden aways in order to con the immigration ..and then years later play cards of misinterpretations or memory problems and blah blah etc This is because much still depends on the applicants being honest ...and imho ... the NZ Police and Immigration agencies do not have the necessary resources to verify all applications with birth country authorities etc etc Numerous loopholes & games can be played there too sadly etc
As a side note, while a few changes are going on with the Australian - NZ treaties ... I was actually scanning another case earlier this week which related to a grandmother who was in a UK detention centre listed for deportation after nearly 30 years residency etc Looks like that what caused her problem was she flew home to care for her elderly parents for a short time which then altered her visa status terms apparently etc
I have also found some cases very hard to explore and then distinguish facts for apple-apple comparisons & then contrast and correlate to the legislation and blah blah ...and it will get even more messy with the Brexit and UN change & numerous other developments underway imho ...esp post 911 concerns etc
I am not sure if Immigration NZ manage processes and a database of decisions to improve transparency and accountability like currently found with our ACC and WINZ systems .. every now and again I see the occasional case in NZLII but I dont know if there is a section for disputes and deportation? I would also not be that surprised to see when some conniving foreigners decide to likely skip back home before they get to offical point of being sent back etc The upside of this is that less expense to nz taxpayer with money going down the toilet I suppose
Also while ACC may be included with some reciprocal agreements, I have found that it is usually with WINZ when it may end up coming down to virtual calendar calculations and countdowns of days etc Even now with the more stringent eligibility criteria appearing I have seen a few suprising cases being reported and there are a few interesting snippets which appear in amidst some Section70 decisions etc The international caselaw is also extremely fascinating when one has the time and resources to explore it more fully too IMHO ...
AFAIK new immigrants still have various health declarations in order to acquire permanent residency visa &or citizenship status so yup I am waiting to see how a few of them will cope with applying for NZ Superannuation with likely having told a few lies etc One scam that I am aware of concerns some of these a$$holes getting into NZ education systems and their toxic interplay with student loans and getting kiwi qualifications under their new fakey personas etc I know one person who came downunder ... that told a story to get a NZ job ...while hunting for a NZ partner to get their visa and passport ...spun a few more stories and then got themselves sponsored into a NZ tertiary qualification etc I expect that for some of these a$$holes ... they will just pi$$ off back overseas if it looks like their true past will get investigated ... &or their personality disorders or other problems get exposed when they dont get what they want when they want etc
IMHO whilst the legislation is being clarified with regard to criminal convictions in different settings ...but when it is the *personality disordered* &or some other predators who will frequently also have a significant history of toxic civil strife ... usually it seems that their birth country is perhaps thinking that giving a reference or encouragement to these eejits for a new start somewhere else like New Zealand ... will immediately get them out of their system causing harm or havoc perhaps?
Tricky stuff as immigration and permanent residency issues are then just another confusing kettle of fish on top of all these ACC, WINZ and MOH legislation interfaces etc ...