Labrooy v Chief Executive of the Ministry of Social Development
[2017] NZHC 3025
•13 December 2016
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV-2016-485-465
[2016] NZHC 3025
UNDER the Social Security Act 1964 IN THE MATTER OF
An appeal by way of case stated from the determination of the Social Security Appeal Authority at Wellington under s 12Q of the Social Security Act 1964
BETWEEN
ANDREW LABROOY
Appellant
AND
THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT
Respondent
Hearing: 11 October 2016 Appearances:
Appellant on own behalf
M Nicholson and S Jerebine for the Respondent
Judgment:
13 December 2016
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 13 December 2016 at 3 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Crown Law, Wellington Copy To: Appellant
LABROOY v CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2016] NZHC 3025
[13 December 2016]
Introduction
[1] The appellant is a dual citizen of Singapore and New Zealand. In 2014, he applied for and was granted entitlement to New Zealand superannuation (NZS). However, the appellant refused a request by the defendant (Chief Executive) to take all reasonable steps to obtain his overseas pension from Singapore. He did so on the grounds that writing to the Central Provident Fund Board (CPFB) in Singapore would result in his two sons being extradited and punished for failure to undertake compulsory military service in that country. The Chief Executive suspended the appellant’s NZS payments until such steps were taken.
[2] The decision to request the appellant to take all reasonable steps, and to suspend NZS payments, was upheld by the Social Security Appeal Authority (Authority) in a decision dated 1 December 2015.1 The appellant appeals by way of case stated from that decision. The question of law for the opinion of this Court is as follows:2
Did the Authority err in law in failing to consider the appellant’s rights under international law in accepting that the Chief Executive was correct to exercise his discretion under s 69G of the Social Security Act 1964 to give a written notice to the appellant pursuant to s 69G(2) or (3) of the Social Security Act 1964 and to suspend or terminate his benefit?
Background
[3] The appellant lived in Singapore for over 50 years before emigrating with his family to New Zealand in 2000. His sons were 8 years and 10 years at that time and are now aged 24 years and 26 years respectively. Both sons were educated in New Zealand. The eldest son is no longer living in New Zealand.
[4] The appellant became eligible for NZS when he turned 65. He subsequently applied for, and was granted, NZS on 25 November 2014.
1 [2015] NZSSAA 100.
2 Labrooy v Chief Executive of the Ministry of Social Development HC Wellington, CIV-2016-485- 465, Case Stated on Appeal from a determination of the Social Security Appeal Authority.
[5] Shortly beforehand, on 18 November 2014, the Ministry of Social Development sent a notice to the appellant requesting that he write to the CPFB in Singapore to see if he was entitled to a pension.
[6] The notice was sent pursuant to s 69G of the Social Security Act 1964 (Act). The relevant parts of that section provide:
69G Reasonable steps to be taken to obtain overseas pension
(1)Every applicant for a benefit under this Act or under Part 6 of the Veterans’ Support Act 2014 or under the New Zealand Superannuation and Retirement Income Act 2001 shall provide to the chief executive information establishing, to the satisfaction of the chief executive,—
(a)that the applicant and the spouse or partner of the applicant have taken all reasonable steps to obtain any overseas pension to which either or both of them may be entitled or that may be granted to either or both of them; and
…
(2)The chief executive may give to—
(a)an applicant for a benefit under this Act or under Part 6 of the Veterans’ Support Act 2014 or under the New Zealand Superannuation and Retirement Income Act 2001; or
…
a written notice requiring that person to take all reasonable steps, within a period specified by the chief executive, to obtain any overseas pension to which that person may be entitled or that may be granted to that person.
…
(4)Where a person does not comply with a notice given by the chief executive under subsection (2) or subsection (3), the chief executive may—
(a)refuse to grant the benefit applied for by the applicant:
(b)suspend, from such date as the chief executive determines, the benefit granted to the beneficiary until either—
(i)the beneficiary provides information establishing, to the satisfaction of the chief executive, that the beneficiary and the spouse or partner of the beneficiary have taken all reasonable steps to obtain any overseas pension to which either or both of them may be entitled or that may be granted to either or both of them or, as the case requires, that the beneficiary has taken all reasonable steps to obtain any overseas pension to which any dependant of the beneficiary may be entitled or that may be granted to any dependant of the beneficiary; or
(ii) the benefit is terminated under subsection (5),— whichever occurs first.
[7] Section 70 of the Act provides for any foreign, publicly provided benefit of a similar type, which the applicant for a New Zealand benefit is entitled to receive, to be deducted from any New Zealand benefit paid.
[8] In subsequent telephone conversations between the appellant and Ministry officials, the appellant refused to write to the CPFB. The appellant stated that he was not entitled to a Singaporean pension; that the request was not fair; that he considered the request to be discriminatory and racist; and that any entitlement to a Singaporean pension was in the nature of Kiwisaver and could not be deducted from his NZS entitlement in any respect.
[9] In a letter dated 10 February 2015, the appellant stated that he could not write to the CPFB as requested because his two sons were liable for national service under Singapore’s Enlistment Act.
[10] The Chief Executive determined that the appellant’s concern for his children did not make the steps required to apply for a pension unreasonable. Due to the appellant’s continued refusal to take those steps, the Chief Executive suspended the appellant’s NZS on 20 July 2015 with effect from 12 August 2015. That step was taken pursuant to s 69G(4) of the Act and subsists until such time as reasonable steps are taken.
[11] At the appellant’s request the Chief Executive’s decision was internally reviewed and then further reviewed by a Benefits Review Committee. The Chief Executive’s decision was upheld. The appellant appealed to the Authority. The Authority dismissed the appeal for reasons expanded on below.
[12] The Authority’s decision was published on the Ministry of Justice’s website. The appellant’s name was suppressed. An article appeared in the Singapore Straits Times on 15 June 2016 entitled “S’porean denied pension in NZ for not using CPF first”. The report canvassed the Authority’s decision and cited from it in a number of respects.
[13] The appellant says that the publication of this article may have serious implications for him and his sons. He says the Singapore Government’s super computer, which stores a profile of everyone in the city state, could be used to find out who the story refers to, and further link him to his whole family. He says he is now gearing himself for the worst.
Authority decision
[14] Before the Authority, the appellant argued that the Chief Executive should have exercised his discretion not to issue a notice requiring the appellant to take all reasonable steps to obtain the overseas pension, and not to suspend his NZS when he failed to do so.
[15] The appellant did not dispute that he had taken no steps to apply for any entitlement to a Singaporean pension. Although he initially denied having access to a Singaporean pension, it now seems clear that there are reasonable prospects of the appellant being granted a pension from the CPFB fund.3
[16] The Authority set out the background to the appeal and reviewed the relevant subsections of s 69G. The appellant argued that if he were to make an application to the CPFB, then the Singaporean authorities would discover his whereabouts and that of his sons. He submitted that this would have significant repercussions for his sons, who had not registered or undertaken compulsory military service in Singapore. Neither the appellant, nor his sons, had returned to Singapore since they left in 2000.
[17]After recording the appellant’s arguments the Authority said:4
The appellant was completely unable to explain what action the Singapore authorities might be able to take against him or his sons if they became aware of his residence in New Zealand.
The Authority nevertheless went on to consider the Singapore Enlistment Act, the Constitution, and other materials relevant to national service in Singapore. The Authority noted that the Singapore Enlistment Act sets out the registration
3 As outlined at [31] of the Authority’s decision.
4 At [21].
requirements for military service, and the penalties for failing to register. That Act also provides that those who have been registered, or children who are over the age of 13 years, must obtain an exit permit to remain outside of Singapore. The Authority inferred from these provisions that as the appellant was over the age of 50 years, and his sons were both under the age of 13 years at the time they came to New Zealand, they were not required to obtain “exit permits” before leaving Singapore.
[18] The Authority also considered a ministerial statement on national service defaulters by the then Minister for Defence in Singapore from 16 January 2006. That ministerial statement announced a tougher stand to be taken against those who defaulted on national service obligations. Provisions of the Constitution of the Republic of Singapore were also referred to by the Authority.
[19]After reviewing these materials, the Authority concluded:
[27] It is unclear how the appellant disclosing his presence in New Zealand would impact on either himself or his sons. The appellant himself is no longer subject to the Enlistment Act. He did not produce any evidence that the Singapore Government has ever sought extradition outside Singapore for a breach of the Enlistment Act. There was no evidence from either of the appellant’s sons about their position or whether they are still citizens of Singapore. One of the appellant’s sons no longer lives in New Zealand, in any event.
[28] As a Commonwealth country, no extradition treaty is required for an application for extradition to be made by the Government of Singapore in respect of someone living in New Zealand, but an application can only be made for an extraditable offence. Such an offence must be one that constitutes an offence in New Zealand and in respect of which there is a penalty of at least one year’s imprisonment. We are unaware of any equivalent New Zealand offence to a breach of the Singapore Enlistment Act as there is no compulsory military service in New Zealand.
[29] We conclude that the possibility of either of the appellant’s sons being extradited to Singapore from New Zealand as a result of a breach of the Enlistment Act, is remote.
[30] We are not satisfied that there is any real danger or disadvantage to either the appellant or his sons if the appellant’s whereabouts were to become known to the government of Singapore.
[20] Taking into account all of those circumstances, the Authority was satisfied that the Chief Executive had correctly exercised his discretion to give a notice to the appellant, and to suspend the appellant’s NZS. The appeal was dismissed.
Approach on appeal
[21] Section 12Q(1) of the Act provides that any party dissatisfied with a determination of the Authority as being erroneous in point of law may appeal to the High Court by way of case stated for the opinion of the Court on a question of law only. The appeal right is therefore limited to the question of law stated by the Authority and set out at [2] above.
[22] The appellant argues that the Authority erred in law by failing to take into account New Zealand’s obligations under art 8 of the International Covenant on Civil and Political Rights (ICCPR) and certain articles of the Constitution of the Republic of Singapore. Each of these grounds is considered below.
Article 8 ICCPR
[23] The appellant submits that a request that he contact the CPFB amounts to a breach of art 8 of the ICCPR. That article provides:
Article 8
1.No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.
2.No one shall be held in servitude.
3.
(a)No one shall be required to perform forced or compulsory labour;
(b)Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court;
(c)For the purpose of this paragraph the term “forced or compulsory labour” shall not include:
(i)Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention;
(ii)Any service of a military character and, in countries where conscientious objection is recognized, any national service required by law of conscientious objectors;
(iii)Any service exacted in cases of emergency or calamity threatening the life or well-being of the community;
(iv)Any work or service which forms part of normal civil obligations.
[24] The appellant says that the rights in art 8 are protected by s 131 of the Immigration Act 2009 and accordingly should have been taken into account by the Chief Executive. He submits that the art 8(3)(c) (ii) exception only applies in countries where conscientious objection is recognised and national service is required by conscientious objectors. He contends that the Enlistment Act does not recognise conscientious objection and he cites comments made in the second reading of the Maintenance of Religious Harmony Act in support. Accordingly, he says that national service in Singapore amounts to compulsory labour which is prohibited under art 8.
[25] There may be circumstances where international obligations are relevant to the exercise of the discretions in s 69G. But I agree with the Chief Executive’s submission that it is difficult to see the relevance of art 8 in this case. The appellant is not seeking protected person status in this country. The Immigration Act 2009 does not apply. Challenges to the legality of the Singaporean national service have little bearing on whether the appellant should be requested to write to the CPFB, and whether his NZS should be suspended until he does so.
[26] Even if it is relevant, art 8 does not have the effect that the appellant contends. Contrary to the appellant’s submissions, I consider the exception to the prohibition on forced or compulsory labour applies to any service of a military character and therefore any national service. The exception would therefore appear to cover national service in Singapore.
[27] But if I am wrong about that, and art 8 does operate as the appellant submits, there is no evidence that writing to the CPFB would result in either him or his sons being extradited, conscripted, or penalised for failing to comply. The absence of any evidence establishing that risk means there was no need for the Authority to go on and consider whether the risk of that happening breached international obligations, and if so whether the Chief Executive should exercise his discretion to effectively exempt the appellant from the requirements of the Act in those circumstances.
[28] I do not consider the Authority erred by failing to have regard to art 8 in this case.
Singaporean Constitution
[29] The appellant also refers to a number of articles in the Constitution of the Republic of Singapore in support of his appeal. Article 9(1) guarantees the right to life and the right to personal liberty. Articles 128 and 131 of the Constitution provide that a citizen may not renounce citizenship unless they have first discharged their liability for national service.
[30] As with art 8, the relevance of these provisions to the exercise of the Chief Executive’s discretion pursuant to s 69G of the Act is far from clear. The Authority referred to the Constitution, and the provisions relating to the renouncement of citizenship in its decision.5 That disposes of any claim that it erred in law by failing to have regard to those provisions.
[31] The constitutionality of the national conscription policy, and penalties imposed for breach, are not matters to be determined by this Court, and not in the context of this application.
[32] But, even if they were, they would not advance the appellant’s case. In the absence of evidence of any risk of either extradition or penalties imposed on either the appellant or his sons, the constitutionality of national service has no bearing on decisions made by the Chief Executive under s 69G of the Act.
[33]I am satisfied that the Authority did not err in law in this respect either.
Result
[34] I am not persuaded that the Authority erred in law by failing to have regard to the appellant’s rights at international law. The question of law posed by the Authority must be answered “No”.
5 At [26].
[35]The Chief Executive does not seek costs and no order is made.
Edwards J
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