jimmyoz2010

from : http://www.nzherald.co.nz/world/news...ectid=10714219


A tribunal has upheld a race discrimination complaint against a legal definition used to deny disaster recovery payments and social security to thousands of New Zealanders living in Australia.

The decision against ACE Insurance Ltd opens the way for more anti-discrimination action against companies and state governments across Australia, successful applicant David Faulkner claims.

His race discrimination allegation against the company was over rules limiting its American Express Repayment Protection (AERP) policy to "Australian residents".

That excluded New Zealanders defined as "non-protected" visa holders under the Family and Community Services Legislation Amendment (New Zealand Citizens) Bill 2001, because they arrived in Australia after February 26, 2001, or who were on long-term trips overseas on that date.

The same social security law has been used to deny disaster recovery payments to thousands of Kiwis caught up in the Queensland floods and Cyclone Yasi and to stop social security for sick and disabled New Zealanders.

It is thought to affect up to 176,000 people - or 47 per cent of the New Zealanders living in Australia.

Mr Faulkner had moved to Australia in 1970, when he was six years old, but has a non-protected Visa because he was stationed overseas on a long-term work placement on February 26, 2001.

After repeated complaints to the company over its refusal to cover him, he lodged a suit with the Equal Opportunities wing of the New South Wales tribunal in September 2009.

Its verdict, delivered in February, upheld an allegation of indirect race discrimination and required the company to change its policy.

Mr Faulkner was denied benefits that would have been available to Australians because of his status as a New Zealand citizen, the decision stated.

"The Tribunal concludes that Australian citizens, in the same circumstances, or circumstances not materially different, would not have been refused cover under the AERP Policy by ACE.

"This finding is sufficient to establish that Mr Faulkner was treated less favourably than a person of a different citizenship or nationality."

The tribunal decision could set a precedent which could be used against Australian state governments in future cases, said Mr Faulkner.

"In effect, the Equal Opportunity Tribunal found that the definition of 'Australian resident' in the Social Security Act discriminates against New Zealanders.

"There are governments across Australia doing virtually the same thing. They directly use New Zealand citizenship as a reason to reject you.

"The ramification is that you could see major class action by Kiwis that have been discriminated against. The direct implication is that all companies who have been using this definition of Australian resident will have to review their polices."

The Queensland state government has already confirmed to Mr Faulkner that it is reviewing its eligibility criteria for public housing assistance in light of the decision against ACE Insurance.

New Zealander Glenda Campbell, whose 19-year-old daughter Hannah needs 24-hour care for severe cerebral palsy, is one of those who is taking action over what she sees as discrimination.

The Toowoomba resident has been turned down for three federal disability support allowances since arriving in Australia in 2006.

She is preparing to lodge a human rights complaint against the Australian Government with the United Nations and considering a claim of discrimination against the Queensland Government.

"I'd like to see everyone who comes to Australia in our situation get treated well. We're ANZACs, after all. But this is discriminatory."

Hank Jongen, manager of Australian social security agency Centrelink, would not discuss the case of Ms Campbell for privacy reasons.

But he said a range of support payments could be available to New Zealanders on non-protected visas, including the Disability Support Pension if a person is deemed severely disabled.

Foreign Minister Murray McCully recently said he was "concerned" at New Zealanders being denied social security payments in Australia.

There was no similar non-protected visa status for Australian immigrants in New Zealand, he said.

"No doubt this is a matter we will discuss with our Australian colleagues in due course."

But he was reluctant to criticise the Australian Government over the imbalance, as it was dealing with a far greater number of immigrants than the New Zealand Government.

"I understand the changes that took place in 2001 were designed to deal with substantial cost pressures that emerged as New Zealanders took access to the welfare system there.

"The situation is different because the numbers are vastly different."

fish.01

Odd. You would think it is up to a government to decide its visa categories and then people to accept them when migrating or go through the proper process of applying for permanent residency? I guess we would have to read the detail of the decision to understand the reasoning.

Rambi

There's a reason for that. You'd think that the NZ government would have said something between 2001 and now if they were concerned about it.

jimmyoz2010

Faulkner v ACE Insurance Limited [2011] NSWADT 36, see http://www.caselaw.nsw.gov.au/action...?jgmtid=150396

jimmyoz2010

it was raised in 2001 when changes went through

fish.01

Thank you. Now read it.

It appears the finding of direct racism was dismissed:

"82. In summary, therefore, the Tribunal concludes that although Mr Faulkner was the subject of differential treatment this was not "on the ground of race [in the sense of nationality or citizenship]". Thus, he has failed to make out a case of direct discrimination under s 7(1)(a) of the ADA in respect of the AERP Policy."

It seems indirect racism was allowed only because the exclusion was deemed unnecessary. Because only residents get unemployment benefits the company mistakenly thought that only residents could register with centrelink. To claim the companies unemployment insurance they required people to prove they were unemployed by registering with centerlink. They thought this disqualified non-protected SCV holders:

"118 In the light of this evidence, it appears to the Tribunal that a major reason why the requirement was initially imposed was based on a misunderstanding of who could be registered with Centrelink. Given the fact that non-protected SCV holders can be registered with Centrelink and there is no greater risk of identity fraud with non-protected SCV holders compared to other Australian residents, it cannot be concluded that the requirement is appropriate and adapted to its purpose or that it has a logical basis. There is a less discriminatory option, which accommodates of the needs of Mr Faulkner and other non-protected SCV holders and which would be satisfactory from ACE's perspective. ..."


Oddly the complainant was eligible for 'protected status' but he just didn't apply.

jimmyoz2010

basically private companies can no longer use the definition in social security act or citizenship act or they could face prosecution.

jimmyoz2010

there is a time limit.

fish.01

According to my reading it isn't that black and white. Direct racism was disallowed. Indirect racism was allowed only in the specific circumstances that said it was unnecessary. If a company can show why it is necessary then it still may be allowed. Granted it will make them think twice.

fish.01

Yes indeed...just thought it strange that someone who seems so particular did not apply at the time when he was eligible. Maybe he is taking advantage of the tax benefits or has another reason.

jimmyoz2010

changes were badly advertised. David did not find out until he applied for citizenship some years after. you may be interested to know Russel Crowe is in the same boat.

fish are you a lawyer?

fish.01

I remember them being all over the news at the time? Can Russell apply for a permanent residency visa? No, I'm not.

jimmyoz2010

on or around 26/2/2010 was on news.. he came after that

Buzzy--Bee

You have brought this up many times before.

The easy resolution to this "discrimination" is for Australia to treat New Zealanders as they treat every other nationality, and deny them any residence unless they apply for and are awarded a temporary or permanent visa.

Why did Mr Faulkner not apply for Australian citizenship, which he had been elegible for since he was 8 years old?

New Zealanders ability to live in Australia without any sort of visa application is very privileged, and to stir the pot by complaining about not being treated the same as Australians risks being denied this type of privileged entry in the future. I don't think any of us want that.

BB

iamthecreaturefromuranus

It would probably do NZ good, if Australia insisted that all Kiwi's go through the same visa process the rest of us have to do. It would stop the outflow of people from NZ to Australia in its tracks.

""The ramification is that you could see major class action by Kiwis that have been discriminated against."

That would go down like a lead ballon with Australians and might well see a change in the migration laws covering New Zealanders.