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Submission: Ipr&C Act 2001 Amendment Bill No. 3

Submission: Ipr&C Act 2001 Amendment Bill No. 3

TO THE HEALTH SELECT COMMITTEE

INTRODUCTION

1) This submission is lodged for and on behalf of the members and associates of Acclaim Canterbury Inc, hereinafter referred to as the Group.

2) The Group wishes to appear before the Committee to speak to the submission and will be represented by the President.

3) Acclaim Canterbury Inc, formerly known as ACC Support-Action Group Canterbury Inc, a regularly constituted and incorporated Society, is an ACC Claimants’ Support Group set up to aid and assist its members as set down in its Constitution. Its members and associates are drawn predominantly from the Christchurch and Canterbury regions; however, it also has members and associates in areas ranging from as far a field as Kaikoura, Timaru and Buller/West Coast.

GENERAL

4) The Injury Prevention, Rehabilitation and Compensation Amendment Bill No 3 is purported to signify the Government's commitment to a fair and sustainable scheme and includes what is described as a number of "secondary issues" that arise out of ongoing policy development, and also some operational

improvements and technical changes.

The proposed Amendments to the Bill, which total 54 in number, are without doubt of such significance that they amount to a major re-write of the Principal Act. The Accident Compensation Corporation (ACC) cannot be trusted to operate the present scheme in equity and good conscience according to law. Furthermore, there is consistent documentary evidence that clearly demonstrates that ACC is currently incapable of being relied upon to use its powers fairly and equitably and, therefore, there is nothing to suggest it would use its increased powers in equity and good conscience should the Amendment Bill be enacted.

Without doubt ACC is a corrupt organisation, which is actively engaged in the commission of fraud against the people of this country on such a grand scale that beggars belief. Evidence points to a covert policy that consistently denies claimants access to entitlements or to levels of entitlement matching claimants’ needs. ACC cynically, callously and with the power of supreme arrogance engages in legal gymnastics by failing to implement court rulings that are adverse to it, thereby forcing individual claimants to go through the very same costly review and appeal process to seek redress. ACC maintains secret claimant files marked “not for dissemination”, thereby denying access to their personal information, a serious breach of the Privacy Act Principles. ACC constantly obfuscates natural justice and entitlement issues, frequently ignoring natural justice altogether despite acknowledging that it is bound by the NZ Bill Of Rights Act. Moreover, claimants are never consulted prior to adverse decisions being implemented.

However, it is conceded that the Principal Act requires some minor changes to remove or amend inconsistencies such as Section 117 3 (b) and (c) and s 149 (3) which are in conflict with the New Zealand Bill of Rights Act 1990. The reality is that ACC, by implementing its own policies and procedures, systemically and callously breaches the Principal Act’s purpose and intent set down in Section 3 and deprives claimants of genuine, meaningful rehabilitation and in doing so inflicts incalculable harm on claimants and their families.

Furthermore, Judge Peter Trapski identified in his 1994 report, largely ignored by ACC and past and present Governments, into ACC’s case management methods, a culture of conflict and confrontation towards claimants’ legitimate expectations of rehabilitation goals. The culture exists today, indeed, with the passage of time and the appointment in 1997of a new Chief Executive Officer, ACC staff members have become very sophisticated in methods of denying, delaying, demeaning, defrauding, defaming claimants and then defending its actions.

The Select Committee is requested to adopt the precautionary approach in its considerations and report to the House on the proposed amendments.

For example, despite the Section 3 "Purpose" of the Principal Act being the overriding goal to minimise the impact of injury on the community (including economic, social and personal costs) through s.3 (c), "ensuring that, where injuries occur the Corporation's primary focus should be on rehabilitation with the goal of achieving an appropriate quality of life through the provision of entitlements that restores to the maximum practicable extent a claimant's health, independence and participation;"

We have not been able to identify one single claimant throughout our New Zealand network who has received a properly prepared and lawful Individual Rehabilitation Plan in accordance with Section 77 of the Act. Neither have we been able to identify one single claimant who, on being precluded from returning to his/her former occupation as a result of injury(s), has received any training or retraining for a different occupation, let alone to a standard to make him/her competitive in today’s job market.

The judgment of Miller J. in Weir v ACC CIV 2003-485-1921, High Court Wellington, Judgment dated 15 July 2004, emphasises this point relating to the Corporation's adverse administration of the Act relating to Section 77.

This results in claimants not being lawfully and properly rehabilitated which, in turn, likely causes levy-payers to pay tens of millions of dollars more than they should to operate the scheme, while claimants, particularly long-term claimants, are either under constant threat of disentitlement on the pretext of non-compliance and consequent loss of weekly compensation or are left alone with no support for an unreasonable time – inconsistency is systemic. Such claimants may be declined weekly compensation for spurious reasons for an inordinate length of time as they work through the reviews and appeals process or are "exited" in accordance with ACC's "exit" policy to become beneficiaries of a Work and Income scheme after ACC has been able to obtain accredited medical opinion contrary to historic and current file medical evidence.

Essentially, ACC embarks on surgeon shopping but is then known to ignore medical evidence that does not suit it, or acts contrary to alternative specialist medical opinion and medical recommendations. Section 72 (1)(d) of the Principal Act states that claimants must undergo assessment by a registered medical professional specified by the Corporation. It is this subsection that has led to the controversy surrounding allegations of “surgeon shopping” and biased medical assessors. The remedy is simple, to reinforce the requirement that medical assessors are, and are seen to be, independent and unbiased, delete the words “specified by the Corporation” and insert after “professional” the words: “ qualified pursuant to Sections 93, Schedule 1 cl 28”.

While ACC fails to provide rehabilitation according to law, and is able to decline weekly compensation for often spurious reasons contrary to, for example, s.27 of the New Zealand Bill of Rights Act 1990, it is able to invest a large proportion of the $2.5 billion it collects annually from the public in financial markets. Even if ACC loses at review or appeal it has still has had the use of that levy money for many months to invest.

The questions that the Select Committee needs to ask are:

(i) What happens to the levy-payers money which is supposed to be for rehabilitation and weekly compensation and is not being used for that purpose and;

(ii) What is the Government policy pursuant to s. 270 which is preventing it from properly complying with purpose, meaning and intent of s. 275 (1).

There is currently a petition before the Transport & Industrial Relations Select Committee of the House to conduct an inquiry into ACC, which, inter alia, will address the above issues. In that regard the Health Select-Committee is requested to forward a copy of these submissions to the Transport & Industrial Relations Select-Committee.

In considering the provisions of Amendment Bill No 3, the Health Select-Committee is requested to adopt the precautionary approach and to take the "hard look" at the substance of all the proposed clauses.

AMENDMENTS

5) The numbering of the sections set down in this section of the submission is consistent with the clause referencing structure used in the Bill.

We submit the following main contentious clauses in opposition to the relevant clauses of Amendment Bill No 3:

3. (1) Delete this amendment, Principal Act remain unchanged. Acupuncturist minimum qualification is membership of New Zealand Acupuncturists Incorporated. The proposed standard is too low, the holistic approach of Chinese traditional medicine and acupuncture requires up to 7 years of study to achieve a satisfactory standard. The quick-fix objective of the proposed lower qualification is nothing more than a mean-spirited money saving exercise. Moreover, it is effectively a restraint of trade by unfair competition from a group of poorly-qualified operators set up under the auspices of Healthwise and Dr. Rankin, a wholly owned subsidiary of ACC.

4 to 19 inclusive will be by way of oral submission.

20. Clause 20 amendment to s 68 of the Principal Act must be deleted. It is draconian in purpose and intent and flies in the face of natural justice, the NZ Bill Of Rights Act and several UN Conventions to which New Zealand is a signatory. It grants ACC unprecedented discretionary authority whether or not it will provide entitlements and the level of those entitlements it is liable to provide. Moreover, it then removes the right to review and appeal its decision, thereby closing off access to the courts.

20A. Insert new clause: Amendment to Section 72 (1)(d) of the Principal Act: delete the words “specified by the Corporation” and insert after “professional” the words: “ qualified pursuant to Sections 93, Schedule 1 cl 28”. This amendment is essential to ensure that medical assessors are independent and unbiased. It is of note that the Purchase Agreement for Initial Medical Assessment Services effectively contracts claimants out of the Act.

20B. Insert new clause: Amendment to Section 87 of the Principal Act – listed in the Bill as Schedule 2: Further amendments to the Principal Act – is inconsistent with the Section 3 purpose and intent of the Principal Act in that it specifies a finite term of liability to provide vocational rehabilitation. The Principal Act ought to remain unchanged.

21. This clause amends the heading of Section 103 of the Principal Act – it is irrelevant and must be deleted. A minor change to the heading to conform with parental leave provisions and should be amended by including after “or earner” the words “or on unpaid parental leave”, no other amendments are necessary or desirable.

22. This minor amendment is an “operational improvement and technical change” and is an acceptable amendment.

23. A draconian amendment that is flawed in its concept and ill advised. It confers authority on ACC that it is incapable of implementing justly; clearly it is bad law. The explanation to this amendment pays no heed to the case law and statutory interpretation in ACC v Robinson, glossing over the latter reveals ACC’s true purpose – retrospectivity. Moreover, it is an intent to deliberately and willfully deceive Parliament by not telling the whole truth – part of the truth is not the truth.

Section 117 (3) ought to be amended as follows:

(a) Amend this sub section by inserting after “any” the word “reasonable”.

(b) Delete this sub section as it conflicts with Section 11 of the NZ BORA 1990 and insert a new subsection (b) “The Corporation must reinstate any cancelled or suspended entitlement as soon as the claimant complies with the requirements of this Act”

(c) Delete this sub section as it conflicts with Schedule 1 cl 8 and 9 of the Principal Act and insert a new sub section (c) to read: “Where weekly compensation was suspended or cancelled and subsequently reinstated, it must be back dated to the day of the suspension”.

24. Delete Clause 1A. Section 137 (2) of the Principal Act states that all decisions of ACC are subject to review “even if it considers that there is no right of review in the circumstances”. The new clause has the potential to bar access to the courts in issues relating to discretionary decisions on the provision of entitlements ACC is liable to provide and/or the level of entitlements it will provide.

Furthermore, ACC, as previously stated, cannot be trusted to provide entitlements, or the level of entitlements, it is liable to provide in accordance with the Principal Act, therefore, by legislatively restricting or denying access to the review and appeal process, bad law such as that proposed has the potential to overwhelm the High Court with applications for Judicial Reviews. Justice delayed is justice denied.

FURTHER AMENDMENTS: Schedule 1 and 2

Scattered throughout the Schedule 1 and 2 amendments are the following:

Omit the words “is not liable to” and insert the words “is not required to”

Omit “not liable to” insert “not required to”

Omit “is not liable to” insert “must not”

Most of these amendments appear innocuous at first glance and it is conceded that mostly they are operational changes of insignificant import. However, leading the Schedule 2 amendments is an amendment to repeal Section 87 (2) of the Principal Act (Clause 20B) and substitute a new ss (2) that entirely changes the character of vocational rehabilitation that ACC is liable to provide. It introduces for the first time a finite term on the length of time that ACC is liable to provide vocational rehabilitation.

As a consequence of their personal injuries by accident, there are many seriously injured claimants with levels of physical and/or mental disabilities and associated restrictions ranging from moderate to severe. Imposing a finite term of rehabilitation removes the authority to exercise discretion in circumstances where claimants may require extra time to complete education or training courses.

The effects on parents notwithstanding, it is likely that among those most affected by restricting vocational rehabilitation will be seriously injured children/teenagers with consequential learning and mobility difficulties. It is for this reason alone that the proposed amendment must be deleted and the Principal Act remains unchanged.

CONCLUSION

The Amendment Bill No. 3 has the hallmarks of a hastily thrown together piece of legislation, riddled with errors and draconian changes to a Principal Act. The perception is that ACC is endeavouring to increase its already significant powers and at the same time extinguish claimants’ rights to redress. The uncomplicated legal principle of “where there is a right there is a remedy” must be preserved. There is no alternative, the Bill is bad law and ought to be returned to its source and rewritten to comply with existing Human Rights legislation and the NZBOR Act.

In short, the major issues are to restore equity to the scheme and curb the excesses of the Corporation. The Woodhouse Principles and the social contract entered into by the Government with the people of New Zealand in the original accident compensation scheme remain embodied in Section 3 of the current legislation. ACC’s and successive governments’ scant regard for the law, the principles and the social contract have reduced those most desirable principles to nothing more than a pious aspiration. The Select Committee ought to recommend to Parliament that it take judicial notice of Section 3 of the Principal Act in deciding whether or not to enact this amendment.

Signed:…………………………………………. Date: ……/……/…………..

Acclaim Canterbury Inc.

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