Horn v Chief Executive of the Ministry of Social Development HC Wellington CIV 2010-485-1589
[2010] NZHC 1988
•15 November 2010
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2010-485-1589
BETWEEN CARL HORN Appellant
ANDCHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT
Respondent
Hearing: 13 October 2010
Counsel: Mr Horn appears in person
Mrs Harris for the respondent
Judgment: 15 November 2010 at 4 pmat 4.00 pm
JUDGMENT OF MALLON J
Contents
Introduction ................................................................................................. [1] The Retirement Pensions
New Zealand ........................................................................................... [5]
Canada .................................................................................................... [8] Mr Horn’s situation
The applications ....................................................................................... [12] The reviews .............................................................................................. [13] The appeal to the Authority ..................................................................... [16] Preliminary issue: the case stated ................................................................ [18]
Principal issues: is the QPP administered by or on behalf of
“the government of the country” from which the payment is received... [21] Result ........................................................................................................... [40] Comment ...................................................................................................... [41]
HORN V CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT HC WN CIV-2010-485-
1589 15 November 2010
Introduction
[1] The issue before me is whether the Quebec Pension Plan (the QPP) is “administered by or on behalf of the Government of the country [here, Canada]...” as those words are used in s 70 of the Social Security Act 1964.
[2] The context is that Mr Horn, who lived and worked in Quebec, Canada until he emigrated to New Zealand in 1981 at the age of 40, qualifies for New Zealand superannuation (NZS), the Canadian Old Age Pension (COAP) and the QPP. Under s 70 the NZS payment is abated by pension payments from overseas countries which the NZS recipient is entitled to receive, with the effect that the recipient receives no more in total than a person who is only entitled to NZS. Mr Horn’s NZS is abated by the COAP and QPP payments that he receives. Mr Horn accepts that the abatement of the COAP can be made, but not the QPP (which amounts to an abatement from the NZS of approximately NZ$6000 per annum).
[3] For the abatement to be made under s 70, the payment from the overseas country must be for the contingency for which NZS is paid. A number of cases have considered whether compulsory employer/employee funded pension schemes are for the contingency for which NZS is paid and have concluded that they are.[1] While Mr Horn is amongst those who consider those decisions to operate unfairly on those who are entitled to pensions from such schemes,[2] he does not challenge the abatement of his NZS by the amount of his QPP on this basis.
[1] Roe v The Social Security Commission HC Wellington M270/86, 10 April 1987; Hogan v The Chief Executive of the Department of Work and Income New Zealand HC Wellington AP 49/02, 26 August 2002; Tetley-Jones v The Chief Executive of The Department of Work and Income New Zealand HC Auckland CIV 2004-485-1005, 3 December 2004; Dunn v Chief Executive of The Ministry of Social Development [2008] NZCA 436, (1997) NZAR 267.
[2] For example M Clarine Dale and others “Literature Review: New Zealand Superannuation and Overseas Pensions” (Retirement Policy & Research Centre, University of Auckland, 2009) at 5 fn 9 (notes the concern for recipients of overseas pensions in relation to the comparison of their pension with Kiwi Saver) and at p 25 (refers to complaints over these kinds of pensions being deducted).
[4] For the abatement to be made under s 70, the payment must also be from a programme which is “administered by or on behalf of the Government of the
country” from which the payment is made. Mr Horn challenges the QPP abatement on the basis that this requirements of s 70 is not met. He contends that, in this case “the Government of the country” referred to in s 70 is “the Government of Canada”, that the QPP is administered on behalf of the Government of Quebec, that the Government of Quebec is not part of the Government of Canada and does not act on its behalf, and so the QPP is not administered by or on behalf of the Government of Canada.
The Retirement Pensions
New Zealand
[5] NZS is paid at a flat rate, unrelated to previous earnings or taxes paid, to those who have reached 65 years of age and who meet the residency requirements. It is funded from general taxation.[3] NZS eligibility and entitlement is set out in the New Zealand Superannuation and Retirement Income Act 2001.
[3] Current taxation and some prefunding via the New Zealand Superannuation Fund.
[6] New Zealand does not have legislation providing for compulsory retirement savings. Therefore anything additional to NZS is a result of an individual’s voluntary savings. However if a person chooses to make voluntary savings into KiwiSaver, there is a government subsidy and a compulsory contribution required to be met by the person’s employer.
[7] Where a person has pension entitlements as a result of having lived or worked in another country then s 70 of the Social Security Act provides the basis on which the NZS payment may be reduced. So far as is relevant for present purposes it provides:
(1) For the purposes of this Act, if-
(a)Any personal qualified to receive a benefit ... under the New Zealand Superannuation and Retirement Income Act 2001 is entitled to receive...a ... pension ... granted elsewhere than in New Zealand; and
(b)The ... pension ... is in the nature of a payment which, in the opinion of the chief executive, forms part of a programme providing ... pensions ... for any of the contingencies for which benefits ... may be paid ... under the New Zealand Superannuation and Retirement Income Act 2001 ... which is administered by or on behalf of the Government of the country from which the ... pension... allowance is received –
the rate of the benefit ... that would otherwise be payable ...under the New Zealand Superannuation and Retirement Income Act 2001 shall, subject to subsection (3) of this section, be reduced by the amount of such overseas ... pension ...
Canada
[8] Canada has a federal system of government, with the Parliament of Canada and the Provinces having the legislative powers as are set out in the Constitution Act
1867. Both the Parliament of Canada and the Provinces have legislative power in relation to old age pensions, but any law passed by the Parliament of Canada does not affect “any law present or future of a provincial legislature in relation to any such matter”.[4]
[4] s 94A of the Constitution Act 1867.
[9] The Parliament of Canada has put in place the COAP and the Canadian Pension Plan (the CPP). The COAP provides a monthly pension for all persons attaining the age of 65 years providing they meet the necessary Canadian residential requirements. It is funded from taxation and it applies to all Canadians.
[10] The CPP provides a pension for those who have contributed to the scheme. For those people, it supplements the COAP. It is a compulsory scheme funded by employee and employer contributions. It applies throughout Canada with the exception of Quebec.
[11] The QPP was put in place under legislation enacted by the Quebec legislature. It is because Quebec has its own scheme that it is not part of the CPP. The QPP provides for payments over and above the COAP to people who have contributed to the scheme. It is compulsory, subject to some exceptions, for persons
in employment in Quebec. It is funded by minimum employee and employer contributions. Employees can choose to make contributions above the minimum. Under the legislation, the Regie de Rentes du Quebec was established as the body to administer the QPP.
Mr Horn’s situation
The applications
[12] When Mr Horn turned 65 in 2007 he was eligible for NZS. As a result of having lived and worked in Quebec he was also eligible for the COAP and the QPP from Canada. He made applications for NZS, the COAP and the QPP. As a result of these applications Mr Horn receives a COAP payment and a QPP payment from Canada, and a NZS payment from New Zealand. The COAP is being paid by Canada at 50% of the full COAP pension, reflecting that he left Canada when he was
40 years old. The QPP payment from the Regie de Rentes du Quebec reflects his contributions made as an employee in Quebec and the period over which he participated in that scheme. Together, the COAP, the QPP and his NZS payments total the NZS amount that a person who does not have overseas entitlements receives. The COAP and the QPP together comprise 75% of the total amount he receives from these three sources.
The reviews
[13] When Mr Horn was advised that the COAP and the QPP were being deducted from his NZS payment he sought a review (as he was entitled to do) of the decision to make the QPP deduction. At this point his request for a review was put on the basis that the QPP did not provide benefits, pensions or allowances comparable to NZS. Mr Horn’s view was that the QPP was not a universal payment like NZS, but was in the nature of Kiwisaver or other private pension plan.
[14] The first stage of the review process is an internal review. In the internal review the Ministry of Social Development considered whether the QPP was a
comparable benefit and concluded that it was. It also went on to consider whether the QPP was administered by or on behalf of “the Government of the country” as referred to in s 70. Its view was that:
... But for the Agreement that the Quebec government has entered into with the Federal Government of Canada in establishing the QPP, an applicant would have been otherwise required to make contributions to the CPP. In establishing the QPP the Quebec Government has assumed responsibility for providing second tier pension assistance to its residents on behalf of the Canadian Federal Government.
On this basis it can be said that the QPP is a pension administered “...on behalf of the Government of the country from which the...pension is received.” [Emphasis added]
[15] The internal review concluded that the deduction of the QPP was correct. The next stage of the review process was a hearing before the Benefits Review Committee. The same position was put forward by the Ministry of Social Development. The review committee upheld the decision that the QPP payment was to be deducted from NZS.
The appeal to the Authority
[16] Mr Horn then lodged an appeal to the Social Security Authority (the
Authority). In this appeal Mr Horn contended that “Government of the country” in s
70 meant the federal government of Canada, and that this did not cover the QPP because that plan was set up by the province of Quebec and is administered by the province of Quebec pursuant to its own constitutional authority and not on behalf of the Government of Canada. The Authority rejected Mr Horn’s contention and dismissed his appeal.
[17] The key parts of the Authority’s decision were as follows:
[17] In effect the [Constitution] Act established what is known as a “federal” system of Government with the powers usually reserved to Governments divided between the federal and provincial bodies.
...
[22] Whilst we accept the appellant’s contention that the phrase “the Government of the country” could be construed as referring to a single entity representing an entire territory, s 5 of the Interpretation Act 1999 requires
that the meaning of an enactment must be ascertained not only from its text, but also in the light of its purpose.
[23] ... In our view one of the purposes of s 70 is to ensure that someone who has not spent all of their working life in New Zealand and is entitled to a payment from a scheme run by an overseas country should not be advantaged over a person who has spent all their life including their working lives in New Zealand.
[24] ...It seems clear that this compulsory scheme [the QPP] is part of the programme in Canada for the payment of benefits, pensions and periodic allowances for providing for the contingencies of unemployment, disability and old age.
[25] ...it would be somewhat inconsistent if [the CPP was able to be deducted from NZS but the QPP was not]...
[26] Bearing these factors in mind in our view the phrase “the Government of the country” should be interpreted widely. Canada has a federal system of Government. The legislature of the province of Quebec has exclusive jurisdiction over certain matters normally reserved to Government. The federal Government has exclusive jurisdiction in relation to other matters usually the responsibility of Government. The Government of Canada is in effect a combination of both provincial and federal Government. In effect the legislature of Quebec is an integral part of the Government of the country called Canada and for the purposes of s 70 of the Social Security Act 1964 we do not consider any distinction should be made between a scheme operated by the federal government and a scheme operated by the provincial government.
[27] ... In effect the Board [the Regie de Rentes du Quebec] administers the [QPP] and makes payment on behalf of the Government of Quebec which is for all practical purposes part of the Government of Canada.
...
[29] We are satisfied that the scheme from which the payment is made is administered by or on behalf of the Government of the country from which the benefit, pension or periodic allowance is received.
Preliminary issue: the case stated
[18] The Social Security Act provides for an appeal on a question of law, which is by way of the “case stated” procedure.[5] The question of law stated for the opinion of this Court is as follows:
[5] Section 12 of the Social Security Act.
Did the Authority err in law in determining pursuant to s.70(1)(b) of the Social Security Act 1964 that the payments the appellant receives from the Quebec Pension Plan are from a programme which is “administered by or on
behalf of the Government of the country from which the payments are received”?
[19] Mr Horn takes issue with the question of law being phrased in this way. He says that the Authority determined that the QPP was administered “by” the Government of the country from which the benefit, pension or periodic allowance is received. He says that s 70 refers to “by or on behalf of” and so it must be one or other. He says that the question of law for the opinion of this Court should be whether the Authority erred in determining that the QPP payment is from a programmed administered by the Government of the country from which the QPP
payment is received.[6]
[6] Mr Horn uses the precise words of s 70(1)(b) but for present purposes my paraphrase is correct.
[20] There is no need to amend the case stated. Under s 70 the deduction was able to be made if the QPP is administered “by” the Government of the Canada or “on behalf of” the Government of Canada. Either way it would be within the “by or on behalf of” words of the section. The appeal is on a question of law. What I must consider is whether the Authority was correct in determining that the “by or on behalf of the Government of the country” criteria in s 70 was met. Possible outcomes are that the Authority was wrong because the QPP is neither administered by nor on behalf of the Government of Canada, or that the Authority was correct that the statutory criteria was met and for the correct reasons, or that the Authority was correct that the statutory criteria was met although their reasons were incorrect.
Principal issue: is the QPP administered by or on behalf of “the Government of the country” from which the payment is received.
[21] Both sides agree that “the country” here is Canada, so that the issue is the meaning of “the Government of Canada”. The competing interpretations put forward here are that the Government of the country refers to the Government of Canada which does not include the Government of the province of Quebec (Mr Horn’s position) or that the Government of Canada includes both federal and provincial governments (the respondent’s position).
[22] In support of his submission Mr Horn places particular emphasis on the capital “G” in “the Government of the country”. He says that the Authority’s decision unconventionally uses “Government” and “Governments” throughout its decision, making no distinction between a specific government (for which a capital would conventionally be used eg the Government of Canada) and the concept of governance or governing (for which a capital should not be used eg a federal system of government). He refers to para [17] of the Authority’s decision (set out above) as an example of the loose use of the capital “G”.
[23] Mr Horn submits that the Government of Canada is the federal government of Canada. He makes the point that the federal Government of Canada has no power or jurisdiction over the provincial Government of Quebec. On this basis he says the Authority is wrong to say at para [27] of its decision “the Government of Quebec which is for all practical purposes part of the Government of Canada”. For similar reasons he says that the earlier reasoning of the respondent in the reviews (refer [14] above) is wrong because in no sense can the Government of Quebec be said to act on behalf of the federal Government of Canada.
[24] I consider Mr Horn’s submissions first with reference to the ordinary meaning of “Government” from a selection of dictionaries:
The Chambers Dictionary[7]
[7] (11th ed, Chambers, Edinburgh, 2008) at 661.
government ... a ruling or managing; control; a system of governing; the body of persons authorized to administer the laws, or govern a state (often with cap, esp if applied to that of a specific country) ...
The New Zealand Oxford Dictionary:[8]
[8] Tony Deverson and Graeme Kennedy (eds) (Oxford University Press, Melbourne, 2005) at 463.
government ... 1 the act or manner of governing. 2 the system by which a nation, state, or community is governed. 3a a body of persons governing a nation etc b (usu. Government) a particular ministry in office...
The New Shorter Oxford English Dictionary:[9]
[9] Lesley Brown (ed) (4th ed, Clarendon Press, Oxford, 1993) at 1123.
government ... 4 The (freq. specified) system by which a nation, community, etc., is governed ... 5 The fact that a particular person governs.
... b (Freq. G-) Period of governing, tenure of office ... 7 (Freq. G-) The
governing power in a State; the body or successive bodies of people governing a State; the State as an agent; an administration, a ministry.
The Merriam Webster online dictionary:[10]
[10] < a : the organization, machinery, or agency through which a political unit exercises authority and performs functions and which is usually classified according to the distribution of power within it
b : the complex of political institutions, laws, and customs through which the function of governing is carried out
6: the body of persons that constitutes the governing authority of a political unit or organization: as
a : the officials comprising the governing body of a political unit and constituting the organization as an active agency
b capitalized : the executive branch of the United States federal government
c capitalized : a small group of persons holding simultaneously the principal political executive offices of a nation or other political unit and being responsible for the direction and supervision of public affairs: (1) : such a group in a parliamentary system constituted by the cabinet or by the ministry (2) : ADMINISTRATION
Black’s Law Dictionary defines government as:[11]
[11] Brian Garner (ed) Black’s Law Dictionary (9th ed, West, St Paul, 2009) at 764.
1. The structure or principles and rules determining how a state or organisation is regulated. 2. The sovereign power in a nation or state. 3 An organisation through which a body of people exercises political authority; the machinery by which sovereign power is expressed <the Canadian government>. • In this sense, the term refers collectively to the political organs of a country regardless of their function or level, and regardless of the subject matter they deal with Cf. central government ... de facto government
... de jure government ... federal government ... local government ... national government ... state government.
Words and Phrases Legally Defined:[12]
From the legal point of view, government may be described as the exercise of certain powers and the performance of certain duties by public authorities or officers, together with certain private persons or corporations exercising public or governmental functions. The principal elements of the structure of the machinery of government, and the regulation of the powers and duties which belong to the different parts of this structure, are defined by the law, which also prescribes, to some extent, the mode in which these powers are to exercised and these duties are to be performed.
[12] David Hay (ed) Words and Phrases Legally Defined (4th ed, LexisNexis, London, 2007) at 1053.
[25] These references show that “government” can refer to a number of concepts: the act of governing ( eg “ the business of government is to promote the happiness of the society by punishing and rewarding”),[13] the system by which a state is governed (eg “civil government”, “coalition government”, “federal government”), those with current tenure to govern (eg the National Government), and the machinery by which a state is governed, or the body of persons authorised to administer the laws or to govern a state (eg the Government of Canada).
[13] The example given in The New Shorter Oxford English Dictionary.
[26] The capital “G” is used with reference to a specific government. That specific reference can be to those with current tenure to govern. Or it can be a reference to the machinery/bodies by which a specific country is governed. The dictionary meanings do not support the view that “the Government of Canada” can only be a reference to the federal arm of government. That is only part of the machinery through which the country of Canada is governed. As well as the federal arm, the country of Canada is governed by the provincial governments. Each part of this machinery has their own sphere of operation which together make up how the country is governed. The Black’s Law Dictionary describes this as “the Canadian government” (ie with a small “g”), but this definition does not refer to the use of the capital “G”.
[27] Mr Horn refers to the constitutional arrangements in support of his submission. The Constitution Act 1867 “established the rules of federalism, that is
the rules that allocate governmental power between the central institutions (especially the federal Parliament) and the provincial institutions (especially the provincial Legislatures)”.[14] The provisions of that Act which are of interest for present purposes are as follows:
[14] Peter W Hogg Constitutional Law of Canada (5th ed looseleaf ed, Carswell, Toronto, 2007) at [1.2].
5. Canada shall be divided into Four Provinces, named Ontario, Quebec, Nova Scotia, and New Brunswick.
...
9. The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.
10. The Provisions of this Act referring to the Governor General extend and apply to the Governor General for the Time being of Canada, or other the Chief Executive Officer or Administrator for the Time being carrying on the Government of Canada on behalf and in the Name of the Queen, by whatever Title he is designated.
11. There shall be a Council to aid and advise in the Government of Canada,[15] to be styled the Queen's Privy Council for Canada; and the Persons who are to be Members of that Council shall be from Time to Time chosen and summoned by the Governor General and sworn in as Privy Councillors, and Members thereof may be from Time to Time removed by the Governor General.
[15] The Privy Council is no longer the final Court of Appeal in Canada but, before appeals to the Privy Council were abolished, the Privy Council heard appeals directly from the provincial courts as well as from the federal courts: Constitutional Law of Canada at [8-3].
...
16. Until the Queen otherwise directs, the Seat of Government of Canada
shall be Ottawa.
17. There shall be One Parliament for Canada, consisting of the Queen, an
Upper House styled the Senate, and the House of Commons.
...
91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of
the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated ...
92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated.
...
94A. The Parliament of Canada may make laws in relation to old age pensions and supplementary benefits, including survivors' and disability benefits irrespective of age, but no such law shall affect the operation of any law present or future of a provincial legislature in relation to any such matter.
[28] From these provisions it can be seen that the Constitution refers to the federal government as the Parliament for Canada, it refers to the Seat of Government of Canada[16] as being in Ottawa but it does not define the Government of Canada as being the federal Parliament, and “good Government of Canada”, “carrying on the Government of Canada” and “aid and advise in the Government of Canada” all use a capital “G”, but seem to be referring to the act of governing, rather than a particular
body that carries out that governing.
[16] Black’s Law Dictionary (9th ed) defines “seat of government” as meaning “[t]he nation’s capital, a state capital, a county seat, or other location where the principal offices of the national state, state, and local governments are located”. This definition therefore does not support an interpretation that the Government of Canada is referring to the federal Parliament.
[29] The provisions of the Constitution Act do support Mr Horn’s point that it is inaccurate to say that the Government of Quebec acts on behalf of the federal Government. The federal government and the provincial governments have specific areas of jurisdiction and in respect of those jurisdictions neither is subordinate to the other. This is explained in Constitutional Law of Canada[17] as follows:
[17] Refer fn 14 herein at [5.1(a)].
In a federal state governmental power is distributed between a central (or national or federal) authority and several regional (or provincial or state) authorities, in such a way that every individual in the state is subject to the laws of two authorities, a central authority and a regional authority. For example, anyone in Ontario is subject to the laws of the Parliament of
Canada (the central authority) and the Legislature of Ontario (the regional authority). The central authority and the regional authority are “coordinate”, that is to say, neither is subordinate to the other. The powers of the Legislature of Ontario are not granted by the Parliament of Canada, and they cannot be taken away, altered or controlled by the Parliament of Canada. And the Legislature of Ontario, even acting in concert with all the other provincial Legislatures, is likewise incompetent to take away, alter or control the powers of the Parliament of Canada.
In a unitary state, governmental power is vested in one national authority. There are, of course, local or municipal governments with law-making power over their local territories. But these local authorities differ from the provinces or states of a federation in that the local authorities are subordinate to the national authority. The powers of a city, borough or county are granted to it by the national legislature, and may be taken away, altered or controlled at any time by the national legislature; in fact, this happens quite often when local government is reorganised. This is also the position of local or municipal governments within a federal state. They are subordinate to the regional authority, for example, the city of Montreal to the province of Quebec.
[30] But the point that the Government of Quebec is not subordinate to the Federal Government of Canada does not mean that the Government of Canada, in its ordinary meaning, means the Federal Government (referred to in the Constitution Act as the Parliament of Canada). It is capable of meaning that, but it is also capable of meaning the Federal Government of Canada and the Governments of the Provinces collectively.
[31] It is then necessary to consider which of these interpretations must have been intended when read in the context of s 70. Here I note that Mr Horn submits that the purpose of the legislation is irrelevant to the meaning of “administered by or on behalf of the Government of the country”. I do not agree with that submission because the meaning of words in a statutory provision is to be ascertained from the text in light of their purpose. The purpose of a statutory provision is part of the context in which the words have been used and context is always relevant to meaning.
[32] Here that context is a provision providing the circumstances in which deductions are to be made from the flat NZS rate that is paid to all New Zealanders who meet the age and residency requirements. It might be asked why there would be any such deduction. The deduction has the effect of reducing the cost of NZS to New Zealand. But this cannot have been the only purpose, as the statutory
provisions could have reduced costs to a greater extent for example by tightening the eligibility requirements for those who have not lived in New Zealand throughout their lives or in various other ways.
[33] The New Zealand legislature has chosen to permit the deduction where the benefit from the other country is for the same contingency (in this context, financial support for people who have reached an age at which they can/should not have to continue to work to support themselves) and where the benefit is paid from a programme “administered by or on behalf of the Government” of another country. Together these requirements seem to be directed at making deductions where a person is receiving a payment that is comparable to NZS (as determined by comparability of contingency and comparability of who administers the scheme).
[34] The reasons for this requirement of comparability would seem to be:[18]
[18] M Clair Dale & Others “New Zealand Superannuation and Overseas Pension: Issues and Principles for Reform” (Working Paper 2009-2, Retirement Policy and Research Centre, University of Auckland) at 22 refers to s 70 as promoting egalitarianism and horizontal equity and preventing double dipping.
a) those who have not lived and worked in New Zealand all their lives have less claim on the state for support in their old age, particularly if that person is able to call upon another state for some financial support;[19] and
b) New Zealand has chosen to look after its residents via a flat rate for all, so that as between those who are entitled to NZS no-one should be in financially advantaged in their receipt of state benefits as against another.
[19] Literature review referred to at fn 3 herein: at 5 notes that universal entitlement to NZS may be viewed as a recognition of the paid and unpaid contributions of older citizens.
[35] I acknowledge that there are different equity arguments that can be made. For example, those that have directly contributed more to a pension scheme administered by or on behalf of another country in which they have lived for a period, in the expectation of a greater level of pension in their retirement than those who have contributed less, may lose that greater level of pension by immigrating to New Zealand. But the Legislature here has decided that the test for comparability is one of comparability in the contingency for which the benefit is paid and whether it
is paid from a programme that is “administered by or on behalf of the Government of the country” limb of s 70.
[36] By using the words “administered by or on behalf of the Government of the country”, the Legislature must have had in mind that a payment would be regarded as comparable to NZS if it was paid from a state (ie government) scheme as opposed to a private scheme. It is here that the comparison the Authority made with the CPP is relevant. The CPP is administered by or on behalf of the federal government of Canada. All those who receive the NZS and who are also entitled to payments from the CPP would have their NZS payment reduced by the amount of their CPP payment (as has previously been decided in Hogan v The Chief Executive of the
Department of Work and Income New Zealand[20] and which is not challenged on this
appeal). There is no logic for the Legislature to have intended that a CPP payment would be comparable to an NZS payment but a QPP payment would not be.
[20] Hogan v The Chief Executive of the Department of Work and Income New Zealand HC Wellington AP 49/02, 26 August 2002.
[37] For these reasons I consider that “administered by or on behalf of the Government of the country” means, in context and in light of its purpose, a programme administered by either the government of a Province or the federal government of Canada as they are both part of, and included within the term, the Government of Canada.
[38] Whether the QPP is administered “by” or “on behalf of” the Government of Canada is a side issue. Mr Horn’s concern was the apparent looseness with which this had been considered in the review and the Authority appeal stages and the apparently different views expressed as between the respondent and the Authority. That in turn raised for him the issue of whether the Authority could be upholding a decision of the Chief Executive under s 70, if the Chief Executive’s view was the same as the view expressed on behalf of the Ministry of Social Development. However, as explained above (refer [20]) the deduction was correctly made as a matter of law if the QPP is administered by the Government of Canada or on behalf of the Government of Canada. That is, the legal test was met even if the reasons those making the deduction or upholding the deduction as correct were wrong.
[39] Neither the case stated nor the submissions provided much information about the Regie de Rentes du Quebec. Nor was I directed to anything in the background materials provided about the Regie de Rentes du Quebec. From what has been said, I understand it to be a body set up by legislation enacted by the Legislature of the Province of Quebec. It does not appear to be part of the Government of Quebec. Rather it is acting on behalf of the Government of Quebec to administer the scheme which the Government of Quebec has put in place. Therefore my view is that the QPP is administered “on behalf of” the Government of Quebec, which in turn means it is administered on behalf of the Government of Canada in terms of s 70.
Result
[40] The answer to the question of law that has been stated for the opinion of this Court (refer [18] above) is “No”. This means that the deductions of the QPP were correctly made.
Comment
[41] For completeness I note that Mr Horn is concerned that there is no evidence of the Chief Executive having made a “decision” as required by s 70 before the deduction was made. He contends that this decision is not one that can be delegated to other Ministry personnel. This issue is not part of the case stated and has therefore not been considered in this judgment.
Mallon J
Solicitors:
Carl Horn, 2-9 Abraham Heights, Nelson (In Person), carl.horn[email protected]
Crown Law, Wellington for Respondent, debra[email protected]
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