Dawn Lorraine Greenfield v The Chief Executive of The Ministry of Social Development
| Jurisdiction | New Zealand |
| Judge | William Young J |
| Judgment Date | 24 September 2015 |
| Neutral Citation | [2015] NZSC 139 |
| Docket Number | SC 10/2015 |
| Court | Supreme Court |
| Date | 24 September 2015 |
[2015] NZSC 139
Elias CJ, William Young, Glazebrook, Arnold and O'Regan JJ
SC 10/2015
IN THE SUPREME COURT OF NEW ZEALAND
Appeal against a Court of Appeal decision which held the appellant was not eligible to receive New Zealand superannuation as she had not been ordinarily resident in New Zealand under s8(a) New Zealand Superannuation and Retirement Income Act 2001 (NZSRIA) (residential qualification) — in 1993 the appellant left New Zealand to serve as a missionary, primarily in Singapore — she returned to New Zealand most years for a period of up to three weeks — the appellant had always intended to retire in NZ but had not yet set a date for her return — whether the appellant was eligible for superannuation under s8 NZSRIA (was both resident and present in NZ for a period/s aggregating not less than 10 years since attaining the age of 20 years) and s8(c) NZSRIA (was both resident and present in NZ for a period or periods aggregating not less than 5 years since attaining the age of 50 years) — application of s10 NZSRIA (periods of absence as missionary not counted) — whether the appellant was ordinarily resident in NZ at the date of her application.
P D McKenzie QC and A J McGurk for Appellant
K G Stephen and N E Bailey for Respondent
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A The appeal is dismissed.
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B There is no order for costs.
(Given by William Young J)
In 1993, the appellant, Mrs Dawn Greenfield, and her husband left New Zealand to serve as missionaries. Since then they have lived overseas, mainly in Singapore where they rented accommodation. 1 They have enjoyed residency status there and were eligible to apply for citizenship. They were also resident in Singapore for tax purposes.
Mr and Mrs Greenfield have children and grandchildren living in New Zealand. Up until around eight years ago, they retained ownership of their family home at Bucklands Beach in Auckland. At that time, they subdivided the property, selling part but retaining a section with a small house on it. Mr and Mrs Greenfield's doctor is in New Zealand and they telephone him for advice if required. In 2003 Mrs Greenfield returned to New Zealand for treatment for a broken leg and remained for three months. In 2009 she spent the year in New Zealand after the birth of a grandchild. In other years, they have usually returned to New Zealand at least once for periods of approximately three weeks. When in New Zealand they use the Bucklands Beach property.
Mr and Mrs Greenfield have always intended to retire in New Zealand but have not yet set a date for their return.
Mrs Greenfield attained the age of 65 years on 1 February 2012. Shortly afterwards, and while in New Zealand, she applied for New Zealand superannuation. This application was declined by the Chief Executive of the Ministry of Social Development (the Chief Executive), on the ground that she was not “ordinarily resident” in New Zealand and therefore did not meet the ordinary residence eligibility requirement stipulated by s 8(a) of the New Zealand Superannuation and Retirement Income Act 2001 (the Act).
The Chief Executive's decision was upheld by a Benefits Review Committee and by the Social Security Appeal Authority (the Authority). 2 Mrs Greenfield appealed successfully to the High Court against the decision of the Authority 3 but a subsequent appeal by the Chief Executive to the Court of Appeal was allowed. 4 She now appeals with leave 5 from the judgment of the Court of Appeal.
Under the Act eligibility for New Zealand Superannuation is determined by reference to age — an applicant must be 65 — and residency. As to the latter, s 8 provides:
8 Residential qualification for New Zealand superannuation
No person is entitled to New Zealand superannuation unless the person-
(a) is ordinarily resident in New Zealand on the date of application for New Zealand superannuation, unless section 31(4) of this Act or section 191(4) of the Veterans' Support Act 2014 applies; and
(b) has been both resident and present in New Zealand for a period or periods aggregating not less than 10 years since attaining the age of 20 years; and
(c) has also been both resident and present in New Zealand for a period or periods aggregating not less than 5 years since attaining the age of 50 years.
“Ordinarily resident in New Zealand” is defined, unhelpfully for present purposes, as not including “being unlawfully resident in New Zealand”. 6
Section 9(1) provides that in determining whether someone “has been present in New Zealand” “no account” is to be taken of periods of absence associated with obtaining specialist medical treatment or vocational training, work as a mariner on New Zealand ships, certain military service and work as a volunteer for Volunteer Service Abroad Inc. To the extent that these circumstances have anything in common, it is that (a) the associated absences from New Zealand are likely to be comparatively limited in duration and (b) while absent from New Zealand, the person concerned is unlikely to regard his or her location out of New Zealand as “home”. This last point is reinforced by s 9(2) which provides:
(2) Subsection (1) applies only if the chief executive is satisfied that during the absence of the applicant he or she remained ordinarily resident in New Zealand.
Section 10, which is of considerable contextual significance to the appeal, is in these terms:
10 Periods of absence as missionary also not counted
(1) In determining the period an applicant has been present in New Zealand, no account is taken of any period of absence while engaged in missionary work outside New Zealand as a member of, or on behalf of, any religious body or, as the case may be, during any period that the applicant was absent from New Zealand with his or her spouse or partner while that spouse or partner was engaged in that missionary work.
(2) Subsection (1) applies only if the chief executive is satisfied that the applicant was either born in New Zealand or was ordinarily resident in New Zealand immediately before leaving New Zealand to engage in the missionary work or, as the case may be, to accompany or join his or her spouse or partner.
…
There is nothing in s 10 which corresponds to s 9(2).
Sections 9 and 10 are clumsily expressed. They are intended to operate by way of qualification of the s 8(b) and (c) eligibility rules. But their language is not closely correlated to that of s 8(b) and (c). We can illustrate this by reference to s 10:
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(a) In the first place, s 10 is expressed in an awkwardly negative way. Instead of providing that a person is to be treated as present in New Zealand during a period of absence which falls within s 10(1), it instead provides that “no account” is to be taken of the period of such an absence. On a very literal approach, this would mean that the Court should ignore the period of time in question. On such an approach, Mrs Greenfield's time out of New Zealand would be ignored and she would therefore not meet the s 8(c) eligibility criterion. This, however, would not be consistent with the legislative purpose. Instead, it is clear that s 10 proceeds on the basis that a period of absence which is within s 10(1) counts as presence in New Zealand.
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(b) Secondly, although s 8(b) and (c) both refer to the subject person being “both resident and present” in New Zealand, s 10 only explicitly addresses the presence requirement. A very literal interpretation would leave scope for the conclusion that someone deemed to be present in New Zealand while overseas on missionary service, might not be a resident during that time. Such interpretation, however, would not be consistent with the legislative purpose.
The current legislative scheme has its origins in s 8 of the Old-age Pensions Act 1898. In that statute and in all subsequent legislation there have been eligibility requirements as to prior residency in New Zealand corresponding at least broadly to those now provided for by s 8(b) and (c) of the current Act. From the outset there were exceptions, corresponding, to a greater or lesser extent, with those now provided for in s 9. 7 And, since 1962, there has also been an exception for missionaries corresponding to that now provided for by s 10. 8
Until comparatively recently, there was complete congruence between the eligibility rules and the exceptions. This was so with s 14 of the Social Security Act 1964 as first enacted. Under s 14(1) eligibility for superannuation depended upon ordinary residence in New Zealand at the date of application and 20 years residence in New Zealand prior to application with absences from New Zealand not exceeding specified periods of time. 9 Section 14(2) then provided that no account should be taken of absences of the kind now addressed by s 9. And s 14(3) permitted the Social Security Commission to deem periods of overseas service as a missionary to count as residence in New Zealand.
The first of the problems we have identified arose when the national superannuation scheme was introduced pursuant to the Social Security Amendment Act 1976. What was required under the new s 14(1) was ordinary residence at the date of application and residence in New Zealand for certain periods of time
The second problem has its origin in the Social Security Amendment Act 1987 which further...
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The Commissioner of Inland Revenue v Diamond
...application of “resident and present” in a different context, see Greenfield v The Chief Executive of the Ministry of Social Development [2015] NZSC 139. ...