A hearing into whether pensioners are having their human rights breached over the New Zealand super is nearly finished.

Lawyer for the plaintiffs, Robert Kee, gave his closing address to the Human Rights Review Tribunal today, saying the plaintiffs - three pensioners - were being discriminated against because of who they were married to.

But lawyer for the Attorney-General, Paul Rishworth, said the plaintiffs were trying to "shoehorn" their situation "into the contours of discrimination law".

Read more: Pensioners challenge 'evil' NZ super deductions at Human Rights Review Tribunal


The hearing began on Monday in Wellington, with the three pensioners giving evidence about how they were receiving little or no money in New Zealand pension payments, because their spouse gets an overseas pension that is higher than the New Zealand one.

Under the Social Security Act 1964, if someone receives a higher pension from overseas, their own New Zealand pension will first be deducted, and then the balance is also taken from their partner in a process called spousal deduction.

This meant somebody receiving $500 from their overseas pension would have their $300 New Zealand pension deducted, and the extra $200 would be taken from their partner's New Zealand pension as well.

For some, this reduced their own pension payments to zero, leaving them financially reliant on their spouse in some situations.

Kee said those affected were being discriminated against due to their family status.

He pointed to wording in the Social Security Act that indicated the policy only affected people who were married to a particular person.

"It's supposed to be a dignified way for people who have gotten older to be able to live at a sensible level and to have an entitlement to a certain basic level of payment," he said.

The pension was "not meant to be means-tested" and was a recognition of someone's contribution to New Zealand.


He spoke of Jan McKeogh, who gave evidence earlier in the week about how her New Zealand pension was reduced to nothing because she and her husband received German pensions as well.

McKeogh was told by the Ministry of Social Development that if she were to move overseas, she would be able to receive her New Zealand pension as well as her overseas pension, but she could not do so while living in New Zealand.

Kee also mentioned Malcolm Larsen, an 82-year-old who received no pension because his wife receives a Norwegian pension that is too high.

"Both of them, clearly, were incredibly upset by what spousal deduction does ... the impact upon Mr Larsen is very significant."

He said Larsen felt like a "much diminished man" and the experience had a "huge effect on his dignity".

"He feels as though the government has ignored all the years of service he gave to New Zealand and ignored the common understanding that the New Zealand super should be universal."


Kee said government-administered overseas pensions reflected the recipient's level of work, effort, and contributions. The New Zealand pension, on the other hand, was simply a flat rate for everyone.

He pointed to a Complaints Review Tribunal decision from 1999, where the tribunal found a woman had been discriminated against because Thoroughbred Racing New Zealand, which she was a member of, fined her for being married to somebody with a conviction.

Adding insult to injury, her husband's conviction was for assaulting her.

Rishworth also began his closing address today, but only had 30 minutes to speak before the hearing ended for the day.

He said the situation was "contrived to shoehorn the case into the contours of discrimination law".

"It's appropriate for the Government to treat couples as a single economic unit."


He said the plaintiffs received no differential treatment in that they received the same amount of government money as everyone else did.

"What the plaintiffs are seeking is an income that would advantage them over [couples without overseas pensions].

Rishworth said there was a "long-standing principle" affirmed by successive governments, parliaments and courts, that family circumstances are relevant to assessing social security eligibility and rates.

"It remains the case that New Zealand super is a benefit under the Social Security Act."

The hearing should finish tomorrow.