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Personal Submission There Submission

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Posted 22 March 2005 - 10:26 PM

17 September 2004

The Health Select-Committee
House of Representatives
Parliament Buildings
WELLINGTON

Dear Members

The Injury Prevention, Rehabilitation and Compensation Amendment Bill No.3

(A Government Bill)


SUBMISSIONS OF ******** *******

** *** **

*****

PH; **********

The submissioner requests the opportunity to be heard orally at a hearing and to present evidence. These submissions are comprehensive because it is understood there is no fundamental right for the submissioner to be heard orally.

The explanatory notes and intent of the IPRC Amendment Bill No 3 signifies Government's continued commitment to a fair and sustainable scheme. It also states; "The Bill also includes a number of secondary issues that arise out of ongoing policy development, and also some operational improvements and technical changes."

In the context of the "secondary issues" raised in the Bill, it therefore becomes important and relevant to firstly scrutinise the Corporation's current policy and operational administration of the principal Act including the prejudicial contracts it has with its service providers and its manner and conduct in discharging its existing functions, powers and duties.

Indeed, on many occasions, the Court's, statutory authorities, and the media have highlighted the Corporation's adverse conduct and complete over-reactions to given situations and events but, from experience, nothing of real substance changes.

It was Lord Denning MR in ruling against the Attorney-General in 1977 who said; "To every subject of this land, however powerful, I would use Thomas Fuller's words over three hundred years ago, 'Be ye never so high, the law is above you"

There are currently in excess of 800 appeals outstanding in the District Court just in this small jurisdiction. For every day, and sometimes months, that a delay in setting down a hearing passes, a claimant and their family suffers. From experience, it is the Corporation, for the most part, who is contributing to, and/or actually causing, those delays.

The submissioner therefore recommends that the Committee adopts a precautionary approach and takes what is known as the "hard look." It is not too harsh to say that if the proposed legislation is enacted in its current form New Zealand will be the laughing stock of the common law jurisdictions across the world.

Because of identified breaches of domestic and international law, it is further recommended that the proposed legislation does not proceed at this time. Instead, a clean-slate debate is proposed without a predetermined outcome to reach a true New Zealand consensus on our ACC scheme.

The submissioner also understands that there are two separate books being written, due to be published next year, about the overall operation of the ACC scheme and the review and appeals process.

It is also noted that there is a public petition for an inquiry into ACC currently before the House which is supported by the NZ Law Society ACC Committee. That petition has recently been referred by the Government Administration Committee to the Transport and Industrial Relations Committee for its consideration.

The Health Select-Committee is therefore authorised to provide a copy of these submissions to the Transport and Industrial Relations Select-Committee.
  • Providing the default when Parliament enacted the principal Act is remedied (see para 2) there is nothing wrong with the principal Act per se. It is the Corporation's management and administration of the scheme which firstly needs scrutiny.

    There are considerable concerns with a number of clauses in the Bill, more particularly but not limited to, Clauses 23 and 24.

    Also relevant is good evidence which shows inconsistent application of the law between claimants and the Corporation's adverse conduct and improper administration. There is also evidence of the elements of malice case by case.

    This is likely costing levy-payers far more than it should to operate the scheme because some people are not being provided comprehensive, or any, rehabilitation while others are. Some have Individual Rehabilitation Plans (IRP) prepared contrary to s.77 (see Weir~' ACC (HC) Miller J. Judgment 18 August 2004) while agreed contents are then not being timeously implemented or assessments done, nor services provided which is contrary to s.76 (4), while others have no IRP at all. Some are selectively being discriminated against and targeted while others are not.



    Effectively, the current administration of the principal Act means persons sustaining an injury are "under-insured" and need to take out further injury cover. This is supposed to be a "no fault" scheme.

    The Corporation also has a documented policy to "exit" a given number of claimants each year. This raises questions; (i) how is a person chosen for "exit"; (ii) is the policy applied in equity and good conscience; (iii) do claimants have to wait to be selected for "exit" before they receive rehabilitation in accordance with the principal Act? i.e. whether or not this policy can be construed to be rationing of rehabilitation?

    Apart from prima facie criminal offences, there is instability in the law and maladministration in the administration and operation of the current scheme.

  • Various clauses in this Bill seek to amend the principal Act which itself was not enacted in accordance with constitutional principles and law applying in New Zealand. To pass a NZ Bill of Rights Act and not have it enforced, is to authorise the very thing you wish to prohibit.

    Accordingly, this raises the further question as to whether provisions in the principal Act can be construed as good law?

    The grounds are: - That the Attorney-General issued a signed email reply dated 15 July 2003 with reference LE 01 27 0l 00 which states inter alia: "I advise that the Bill as introduced was not considered to raise issues of inconsistency with the New Zealand Bill of Rights Act 1990, and therefore no Section 7 notification was made."

    The Parliament was therefore fettered and enacted the principal Act blindly thereby now being placed in an embarrassing situation.

    Indeed, there are inconsistencies, the most glaring example being inconsistency between Section 117 (3) (b) of the principle Act with Section 11 of the New Zealand Bill of Rights Act 1990 (right to refuse treatment).

    Section 85 of the principal Act is also inconsistent with Section 9 of the NZ Bill of Rights Act. E.g. If a claimant has weekly compensation declined they also suffer the additional disproportionately severe punishment of also being denied vocational rehabilitation.

    In fact, the principal Act is also inconsistent within itself. For example, a claimant may have entitlements declined by virtue S.117 (3) © if they unreasonably refuse or fail to agree to an individual rehabilitation plan. However, by virtue of Clause 8 of Schedule 1 the Corporation must ask the claimant to agree to a plan but may finalise the plan if the claimant has not agreed which is then to be regarded as if the claimant has agreed to it. It is submitted that s.117 (3) © and Clause 8 of Schedule I are therefore inconsistent with each other. S.117 (3) © ought to be removed from the principal Act.

    On the basis of equity and good conscience it is incumbent on the Parliament to remedy the defaults by now scrutinising the principal Act and declaring the inconsistencies. In the alternative the Court's will need to address the BORA default and make the necessary, declarations thus causing unnecessary waste of scarce personal and Court time and resources.

    It is noted that for claimants Clause 23 of the Bill now seeks to further adversely amend Section 117.

    The constitutional position in New Zealand must be stated and has been outlined by the Court's in a number of cases. For example, in Westco Lagan Ltd v Attorney-General (2000)1 NZLR 40 McGechan J. at paragraph [95] said:

    "First, in principle, provided Parliament proceeds according to mandatory law governing the procedure for enacting legislation (manner and form), Parliament is sovereign and can pass any legislation it thinks fit ....... The safeguard, following upon a decision to not enact the BOR as supreme law, is provision for the Attorney-General to give s.7 notification to the House. The House must know this is occurring, and give proper consideration to proposed legislation in that light......"

    In Wishart v NZ Police Al 85/01 (Judgment dated 27 March 2002) O'Regan J. said at paragraph [14]; "I respectfully agree with that statement In my view it properly summarises the constitutional position in New Zealand"

    Further relevant authority in this matter is from the Court of Appeal in the case; The Queen v Poumako (2000) NZCA 69 (31 May 2000), at paragraphs [96] & [97]. The Court of Appeal held inter alia at para [96];

    "Section 7 requires the Attorney-General on the introduction of a bilL, or in any other case as soon as practicable after the introduction of the bill, to bring to the attention of the House any provision which appears to be inconsistent with the Bill of Rights. The purpose of the Section can only be to ensure that Parliament makes a considered judgment as to whether or not to proceed with proposed legislation which the country's most senior law officer considers contrary to the Bill of Rights or New Zealand's international treaty obligations. (See also para 5.26 of the Cabinet Office manual August 1996)."


    The Court of Appeal went on to say at para [97] inter alia; "Window dressing in the case of human rights is unacceptable and no such cavalier motive is attributed to Parliament"

    From the substance of the 15 July 2003 email reply referred to above, the Attorney-General has prejudicially failed to address at first instance, or to subsequently adequately address, her constitutional obligations and/or duty when the original Bill was enacted and became the IPRC Act 2001.

  • In considering the clauses iii this Bill, some of them draconian, the following additional points are relevant;
    • Clauses 23 and 24 flies in the face of the Section 3 "Purposes" of the principal Act;
    • that by its adverse administration of the principal Act the Corporation has shown itself to be incapable of being trusted to exercise equity and good conscience according to law;
    • that by way of its fiscal imperatives and its adverse administration of the principal Act, the Corporation contravenes Section 275 (1); (only authorised to invest money that is "not immediately required for expenditure') Money is most definitely immediately required to provide entitlements that are not being provided.
    • nor do the Corporation's statistics and fiscal imperatives measure quality of life for those vulnerable injured persons who have or retain cover arid entitlements under the principal Act.

  • It is unfortunate and regrettable that by way of Clause 24, - decisions of the Corporation regarding the exercise of discretion under Section 68 (3) not being reviewable - the Government is proposing to deny access to the Court's and the impartial administration of justice.

    Inter alia, this proposed clause is about a discretion not being reviewable over the provision (or not) of some of the key aspects of social rehabilitation entitlement. The substance and intent of the proposed amendment clause beggars belief particularly in the context of the s.3 "Purpose" of the Act.

    This clause, which also effectively denies access to the Courts, and thereby access to the impartial administration of justice, has direct parallels to provisions in the Foreshore and Seabed Bill which has so upset Maori also being denied access to the Court's.

    A similar voter backlash is predicted when the general public come to realise how similarly unpalatable this Bill is, which also effectively denies access to the Court's for the exercise of a fundamental right to the independent and impartial administration of justice.

    Clause 24 signals, and certainly implies to people in this country - and to the world - that the Government has somehow come to erroneously believe that our judiciary are incapable of applying their judicial oaths fairly, impartially and to be unbiased. This was amply illustrated by the Minister's reported commentary during the first reading of this Bill.

    The Minister argued that such protection from review and appeal is necessary to prevent such discretion's being used "....to inappropriately expand the scheme through review and Court decisions It is submitted that the Minister's reasoning was wrong and she was not entitled to draw or imply such inferences against a constitution ally independent judiciary.

    It is therefore submitted that inclusion of this clause is abusive and contrary to accepted constitutional democratic and legal principles and standards in both domestic and international law.

    Moreover, such a proposed amendment is oppressive to a claimant and unacceptable in the public interest in a free and democratic society. The Corporation is already conferring powers on itself which it does not have. Such actions always need the scrutiny of impartial authorities. Clause 24 should be removed from the Bill.

    It must also be remembered that it is s.137 (2) of the principal Act which requires the Corporation to allocate a reviewer even if it believes there is no right of review. From the outset, it is the Corporation who is in control of the process, not the claimant. Yet the Corporation fails to observe the principles of natural justice (s. 27 BORA) in the course of its administrative decision-making before invoking s.137 (2) and allocating a reviewer. In its own internal staff assessment documents it observes the principles of natural justice for is own employees, but not for claimants.

  • Clause 23 is also draconian and oppressive and should be removed from the Bill. '[his clause proposes to further amend Section 117 and authorise the Corporation to exercise discretion not to back-pay entitlements for a period of alleged non-compliance.

    Clause 23 (3B) (a) & (b) is a charade.

    In reality if that Clause is enacted, it is conceivable that after many months of denied entitlement, a claimant could be successful at Appeal and have entitlements restored from the day they were ceased and then for the Corporation to claim that it considers no exceptional circumstances exist and it would be inequitable to reinstate entitlements for the period of alleged noncompliance.

    It is then back to square one - review and/or appeal - to determine if the exercise of that discretion was valid, thereby enabling the Corporation to gain further financial advantage and enrichment by keeping entitlements from a claimant for as long as it possibly can and further wasting scarce personal and Court time and resources. This can be described as using the power of the public purse to overwhelm justice.

    At Appeal the Corporation will then undoubtedly argue that in terms and context it would not be lawful to exercise its discretion because there is retrospectively in the enactment of Clause 23 on the basis of the dicta at paragraphs 32, 33, 45 and 46 in ACC v Robinson (HC) AP12/03 quoting Lord Brightman in the Privy Council case Yew Bon Tew at 558.

    S.29 of the Interpretation Act 1999 defines "enactment" as the whole or a portion of an Act. The Corporation will argue that since Parliament intended to reverse Peck in Clause 23 (amending s.117) then that makes it retrospective. Therefore, Parliament ought to expressly state that Clause 23 amending s.117 is not retrospective.

    Moreover, so long as the correct test for incapacity continues to be met, including the continued provision of medical certificates of incapacity throughout the period of alleged non-compliance, a claimant is entitled to receive reinstatement and back-payment of entitlements from the date it was ceased.

    In relation to payment of weekly compensation entitlement, sections 3 (d), 54, 100, 103 and 102 are very relevant. (See Weir v ACC Miller J. High Court)

    There may be many reasons why a claimant allegedly fails or refuses to comply - the inconsistency between s.117 (3) (b) and s.11 BORA being just one of them. Oppressive and unreasonable case management, inter alia, contrary to s.27 BORA being another.

    The claimant will be without entitlement support for many months while this clause fails to recognise that a person retains a right to entitlements according to law providing they have cover and incapacity throughout.

    It is further submitted that the current provisions of s.117 already allows the Corporation to withhold entitlements from a claimant (invariably weekly compensation payment only) for many many months (sometimes years) as claimants work their way through the review and appeals process.


    In reality, under the present regime even if the Corporation loses at review or appeal and the entitlement must be reinstated, it has been able to enrich itself and gain pecuniary advantage because it will be earning interest or financial advantage from investment of the public money it collects daily to pay statutory entitlements, and has not been doing so

    The claimant does not receive any interest or financial advantage that the Corporation has received or enjoys if the Corporation ultimately loses at review or appeal.

    Clearly, it is to the Corporation's pecuniary advantage and enrichment, for whatever spurious reasons in can concoct, to keep statutory entitlements from claimants for a long as it possibly can.

    Indeed, this is evidenced by the fact that despite the judgment in Peck being handed down by the High Court on 29 October 2003 the Corporation, as at the date of this submission, has still unlawfully and shamefully failed to reinstate weekly compensation to that class of directly affected claimants who are in a similar position.

    This conduct is a disregard, open insult and resistance to the authority of the Courts of justice amounting to contempt of Court and bringing the administration of justice and the rule of law into disrepute contrary to the public interest and the stated will of Parliament. It is justice itself that is being flouted.

    Despite a 6 August 2004 request for the Corporation's chief executive to within 7 days provide justification for this action, that has not been done.

    Furthermore, to continue to be denied weekly compensation payment for such a long period of time without lawful excuse or justification, is more severe and cruel to a claimant than any monetary penalty usually visited on a convicted criminal offender.

    Moreover, because weekly compensation is declined, the Corporation then claims that by virtue of s.85 vocational rehabilitation cannot be provided either Clearly, a double punishment.

    It is to be noted that the Corporation did not apply to the High Court to "stay" the judgment in Peck. That was the action required if it was to act lawfully and have at least some authority to continue to withhold weekly compensation entitlement from affected claimants. Therefore the Corporation has shown itself not able to be trusted with the exercise of broadened powers, more particularly, when Government now seeks to amendment the principal Act and deny access to review and appeal over the exercise of the Corporation's discretionary powers.



    In the, circumstances, the Corporation is therefore alleged to be in clear breach of s.9 of the NZBORA - "Everyone has the right not to be subjected to.... cruel, degrading or disproportionately severe treatment or punishment"

    In the context, it is also important to remember that from the outset of the accident, an injured person will only be receiving 80% of their original earnings which in itself can cause stress, anxiety and hardship to families simply because a family member has sustained an injury. It is reiterated that this is supposed to be a "no-fault" scheme.

    For Government to request Parliament to now sanction entitlements being permanently revoked for a given period of time, often simply on the disputed interpretations and manipulations of an already suspect organisation, is shameful and simply unacceptable.

  • On the foregoing grounds it is submitted that Parliament ought not to proceed. The BORA inconsistency default must firstly be addressed by Parliament in equity and good conscience. Provisions in the principal Act may well be declared void ab initio. It therefore follows that clauses in the IPRC Amendment Bill No 3, if enacted, will be inconsistent and may also be declared by the Courts ultra vi res and/or invalid or, at the very least, declared inconsistent.

  • The proposed legislation ought not to be enacted at this time.

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