Democracy or bureaucracy?
Parliament, powerful though it is, does not have the power of devolution to give away its statutory power, only the power to delegate its statutory authority, parliament still retains that authority that no one can alter in any way, shape or form.
So what is 'the law', and how is it applicable in relation to the NZ Superannuation (NZS) Act 2001?
The NZS 2001 Act's proviso 3 is simply the Rewritten in 2005 Social Security (SS) 1964 Act and this 1964 Act's purpose is for state-funded benefits/pensions only, nothing more.
It states in the 1964 Act s.70 (1) (b), 10th line [by or on behalf of the Government of the country].As we don't have occupational pensions in the 1964 Act, what has any overseas country's SS contractual pension got to do with any NZ Government?
The only type of occupational pension we have is the Government Superannuation Fund (GSF) which is the fiduciary responsibility of NZ Government to administer, the same for other overseas Government's responsibility to fiduciary administer their dedicated fund members personal contributory occupational pensions.
The GSF (as stated by the Finance Minister on the 12th Oct 2010) is to all intents and purpose, private and not state-funded.All overseas Governments has a similar responsibility to administer its occupational pensions/annuities so, these occupational types must be exempt the SS Act 1964.
On page 187 of the 1964 Act, 1st paragraph, following (a & b sub-sections), it states: [regulations made under this Act:
provided that if the chief executive determines that the overseas benefit, pension, or periodic allowance, or any part of it is in the nature of , and is paid for similar purposes as, -
(a) is in the nature of, and is paid for similar purposes as, -]
These are the exact words of our Parliament and nobody (other than our Parliament's Amendment of the 1964 Act) may put aside or alter it anyway, shape or form, therefore:
As the intention of s.70(1) comes within the purpose of the 1964 SS Act and this purpose is only for assessing any constituent's eligibility for any public non-contributory state-funded benefit/pension, therefore this meaning can only refer to such pensions.
This power of delegation (not devolution) in s.70 (1) is where it delegates statutory authority to the CEO/MSD and, this delegated authority is for him to have an opinion as to which overseas state-funded non-contributory benefit )or similar pension) may or may be similar to any in the 1964 Act.That means the CEO can do nothing more than that.
To find the meaning of any Act, a constituent must examine the purpose and intention of this Act, refer to s.5, the Interpretation Act 1999, as ignorance of the law is no excuse.
Parliament has enacted the NZS Act 2001 to be income/asset free to all fully qualified NZ constituents except to those subjected to any of this Act's provisos.Proviso 3 is only to be used if the constituent is subject to the 1964 Act.
If the constituent is fully qualified for the NZS, has no overseas state-funded, non-contributory benefits/pensions, is not subject to any subordinate legislation interlocutory with s.70(1) of the 1964 Act, and has a similar NZ state-funded benefit/pension that is EXEMPT the 1964 Act, then proviso 3 of the 2001 Act, does not apply.
Parliament is also telling the Crown, it must take heed of the Principles of the binding 1993 Privacy Act BEFORE it assesses a constituent's eligibility under the 2001 and 1964 Acts and, Section 70(1) is NOT to be applied to any overseas SS occupational pension unless a means-tested SW Order in Council (Order) or Reciprocal Agreement (agreement) is invoked.
That is what our Parliament is saying to every NZ constituent (even bureaucrats) and to deny Parliament's instructions is to deny Parliament itself!
As a NZ agreement with another overseas nation's Government, is simply to exchange qualifications, it cannot disqualify that applicant IF that constituent is fully qualified.If only part qualified (by lack of NZ residency) that applicant may invoke that agreement and claim residency in that agreeing nation.Then that benefit applied for must be means-tested as any in the 1964 Act.
Any SW Order or agreement is interlocutory with the statutory 1964 Act) but, if used and then revoked, the Principles (s.6) of the Crown binding Privacy Act 1993 prevail.
IF an Order or agreement is invoked, s.70(1) states that the benefit/pension applied for must have a sum directly deducted (dollar for dollar), equal to the overseas SS/SW non-contributory benefit/pension, deducted from the 1964 (or interlocutory legislation)
This direct deduction can be from the fully qualified constituent overseas SS occupational pension and their part qualified partner or, a part qualified constituent (who is in not in a relationship).To apply s.70 ad hoc to any overseas occupational pension, is a denial of our Parliament's wishes!
There is only one nation I know that exports any similar state funded non-contributory benefit/pension, analogous similar and for the same purpose as the NZS and that is Canada's Old Age Superannuation (OAS).This OAS falls under s.69 (G & H) and only these personal details are to be surrendered under the proviso of s.70 (1) of the 1964 Act.
Section 70(1) has been established under Common Law, due to the many unsuccessful case stated appeals to the High Court (HC).The Common Law case stated appeals are all only in relation to the 1964 SS Act and that is not relevant to the 2001 Act.
This Common Law is based on the case stated Dr.Roe's 1987 Wellington M.270/86 SS HC appeal decision by Judge R.K.Davison.In the Judge's summing up, he stated: [to assist him (the fully qualified applicant*) to understand the operation of the Social Welfare Act].
There is nothing Welfare about the USA Social Security pension and the USA (like other nations) does NOT export its SW benefits to NZ, so how can Judge find that the USA SS occupational contributory pension is on a par with the non-contributory NZS? That's an absurdity!
Dr.Roe's USA SS contractual obligation was earned by contributions made by him and his private employer(s) on his behalf.One employer was the USA military while on active service during W W 2!
Means-tested Social Welfare benefits are for those in need and are the responsibility of the state.
This 1964 Act Common Law has been prevented from being appealed in the Court of Appeal (CA 207/2008), by the refusal of a Special application to appeal the HC decision CIV 2006-485-002566, a special appeal that has no right of appeal to the Supreme Court.
ALL overseas SS occupational pensions have no equal in the 1964 or 2001 Acts, so for the Crown administration to apply s,70(1) Common Law ad hoc is unlawful and is a mischief and misfeasance,.If it is deliberate mischief, it is a misfeasance in public office and the Crown may be sued under the Privacy Act.
The * indicates my words in brackets