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Accident Compensation Amendment Bill (Consistent) (Section 19(1)) [2018] NZBORARp 40 (29 March 2018)
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Accident Compensation Amendment Bill (Consistent) (Section 19(1)) [2018] NZBORARp 40 (29 March 2018)
Last Updated: 3 January 2019
29 March 2018
Hon David Parker, Attorney-General
LEGAL ADVICE
LPA 01 01 23
Consistency with the New Zealand Bill of Rights Act 1990: Accident Compensation
Amendment Bill
Purpose
- We
have considered whether the Accident Compensation Amendment Bill (‘the
Bill’) is consistent with the rights and freedoms
affirmed in the New
Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’).
- We
have not yet received a final version of the Bill. This advice has been prepared
in relation to the latest version of the Bill
(PCO 21230/1.2). We will provide
you with further advice if the final version includes amendments that affect the
conclusions in
this advice.
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act. In reaching
that conclusion, we
have considered the consistency of the Bill with s 19(1) (freedom from
discrimination). Our analysis is set out
below.
The Bill
- The
Bill amends the Accident Compensation Act 2001 (‘the principal Act’)
to ensure that it is effective, efficient, and
accords with best regulatory
practice. It:
- replaces
the requirement for accident compensation claimants to choose between weekly
compensation and New Zealand Superannuation
after receiving a year of both, and
provides instead that all claimants who are close to, or above, superannuation
qualification
age receive up to two years of weekly compensation;
- extends
ACC cover to the spouses or partners, and dependents, of New Zealand employees
posted offshore;
- allows
surviving spouses to receive up to five years of weekly compensation, regardless
of age;
- moves
from an annual review to a biennial review of the Accident Compensation
(Liability to Pay or Contribute to the Cost of Treatment)
Regulations 2003;
- amends
the regulation-making power in relation to levies, to allow regulations to
specify the maximum amounts or deemed minimum amounts
of earnings for levy
purposes, or the methods for calculating those amounts; and
- disestablishes
the Accident Compensation Appeal Authority, which hears cases under the 1972 and
1982 Accident Compensation Acts.
Consistency of the Bill with the Bill of Rights Act
Section 19(1) – freedom from discrimination
- Section
19(1) of the New Zealand Bill of Rights Act 1990 affirms that everyone has the
right to freedom from discrimination on the
prohibited grounds in s 21 of the
Human Rights Act 1993. The grounds of discrimination under the Human Rights Act
include marital
status, family status, and age.
- The
key questions determining whether legislation limits freedom from discrimination
are:1
- does
the legislation draw a distinction on one of the prohibited grounds of
discrimination under the Human Rights Act?
- if
so, does the distinction involve material disadvantage to one or more classes of
individuals?
- Clause
10 of the Bill removes the requirement for claimants or dependants to choose
between weekly compensation under the principal
Act, and New Zealand
Superannuation, when they reach the New Zealand Superannuation qualification age
(‘qualification age’),
currently 65. Instead, claimants who first
become entitled to weekly compensation for a personal injury:
- at,
or after reaching, qualification age will be able to receive up to two years of
weekly compensation, together with any superannuation
they may be eligible
for;
- more
than 24 months prior to reaching qualification age, will cease to be entitled to
compensation on reaching qualification age;
and
- within
24 months of reaching qualification age, are eligible for a maximum of two years
of weekly compensation from the date of entitlement,
together with any
superannuation they may be eligible for upon reaching qualification
age.
- Clauses
13 and 14 of the Bill amend ss 65 and 104 of the Veterans’ Support Act
2014 to mirror these changes.
- These
clauses appear to discriminate on the basis of age for claimants or dependants
aged 63 or 64. This is because the closer a claimant
or dependant is to their
65th birthday when they become eligible for weekly
compensation, the longer the period they will receive both superannuation and
weekly
compensation, compared to persons who first become eligible for weekly
compensation nearer their 63rd
birthday.2
- Superannuation
is a universal entitlement that is not means tested, so superannuitants are able
to continue working and receive superannuation
at the same time. The stated aim
of removing the election requirement between weekly compensation or
superannuation is to provide
for a fairer, more consistent relationship between
weekly compensation and superannuation, so an injured person’s or
dependant’s
financial situation more closely reflects their income had
they not been injured.
1 See, for example, Ministry of Health
v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456; and Child Poverty Action
Group Inc v Attorney-General [2013] NZCA 402, [2013] 3 NZLR 729.
2 We note the extent of the disadvantage in
individual cases will vary depending on a person’s earnings prior to the
injury.
- Achieving
a fair and efficient accident compensation scheme involves complex social policy
questions, which can be addressed in a
variety of ways. Some latitude is
generally given to the legislature to achieve its objectives, and it is a matter
of legitimate
policy choice as to where thresholds are drawn. Moses J in R
(on the application of Hooper) v Secretary of State for Work & Pensioners
stated:3
In determining how to target
resources to those in need, the legislature is entitled to impose ‘bright
line’ rules which
are easy to apply and which may not focus with precision
on the merits of individual cases... such bright line rules in the context
of
social and economic policy do not lead to incompatibility [in that case, with
the European Convention on Human Rights] even if
individual hardship is
occasioned...
- While
this policy may have a discriminatory effect on the basis of age for a small
group of people, we consider it is justified. It
is appropriate for a bright
line to be drawn for eligibility for both weekly compensation and
superannuation. Both forms of assistance
are ways that the State compensates
people who are no longer working. Accident compensation is intended to reflect
the loss of wages
that would have been earned but for the injury, while the
superannuation scheme reflects societal expectations that there will come
an age
where people will no longer work. Accordingly, we are satisfied that this
constitutes a justified limitation on the right
to be free from
discrimination.
Conclusion
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
3 R (on the application
of Hooper) v Secretary of State for Work & Pensions [2002] EWHC 191 at
[115] as referred to in
Howard v Attorney-General (2008) 8 HRNZ 378 at [76] – [77].
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