Accident Compensation (Notice of Decisions) Amendment Bill

on behalf of Simon Watts: I move, That the Accident Compensation (Notice of Decisions) Amendment Bill be now read a first time. I nominate the, a select committee to, oh the Regulations Review Committee to hear the bill. [Assistant Speaker shakes her head] I’m getting a shake of the head—the Economic Development, Science and Innovation Committee to receive the bill.

💬 Kieran McAnulty: Any of the above.

Or any of the above. Thank you very much, Madam Speaker. I stand to take a call, the first call, indeed, on a piece of legislation that owes nothing to my own labours. This is a piece of legislation that was introduced into the ballot by my former colleague Paulo Garcia, whom I would love to see again in this Chamber in due course, and has more recently being transferred into the name of Simon Watts, who I’m very pleased has recently joined us in this Chamber.

The bill rectifies an anomaly in the accident compensation regime. It is not a large anomaly in the overall scheme of a framework that is a very helpful and useful part of our public life and indeed private life. A piece of legislation—the establishment of the scheme that’s played an important part in the lives of many New Zealanders, mostly for better, occasionally for worse. There are many issues that we can discuss in relation to ACC, and changes that perhaps might be usefully made to the regime, but the changes within the scope of this bill are relatively modest, but important nonetheless.

The ACC scheme is, of course—well, purports to be comprehensive. I would argue that in fact, it’s not, but let’s, for argument’s sake, say that it’s designed to be a comprehensive, no-fault personal injury scheme. As such, I think that most people in this country would regard it as a useful mechanism for providing coverage for injuries that might take place to New Zealanders, roughly speaking, through no fault of anyone. Although, again, that’s a contestable claim, for the sake of shorthand please allow it for the purpose of this bill. It does provide a large amount of power to the State. That’s no bad thing in itself, so long as that power is exercised reasonably and in a manner that is justifiable, including by way of the ability for those who are affected by such decisions to have them reviewed.

When large powers are involved in relation to an individual—of course, the person who is injured or the person which might be a natural person or a legal person running the workplace in which a person is injured—it’s important that the principles of natural justice are observed. I would start by saying at a high level, if I may, that where a person is affected in terms of their rights and also their responsibilities, it is important that they are able to have a say in the exercise of that power and the way that they are affected by that. This is, roughly speaking, known as the right to be heard. Of course, decisions should be knowable in the first place, and also reviewable, at least to some extent.

I think it’s worth noting that one of the generally accepted advantages of the ACC scheme is that we bypass much that would otherwise be required by recourse to the courts. Avoiding expensive litigation is generally a good thing, provided that there is not a gap in the ability of an individual or other person to obtain justice. I would be remiss if I were not to mention a number of constituent cases that have come to me in my capacity as a local member of Parliament—and no doubt every other member of Parliament, whether electorate or list, who in this Chamber now or in the past has received contact from constituents, pointing out difficulties that they’ve had with the scheme.

I think we should consider ways that treatment injury victims, in particular, can be catered for much better, the way that disincentives do need to be provided where workplaces might otherwise act in a cavalier manner, such that a person be injured. Also we should seriously consider ways that the system can be made much fairer in covering injury that’s caused in a way that’s difficult to prove, as relating to a particular situation, perhaps a repetitive strain as opposed to an accident or injury. But as I say, that’s because that’s outside the scope of the bill.

So I just want to acknowledge some of those themes do receive at least some recognition in the form of this bill. Partly that’s because of the fact that, at its heart, it’s understanding and acknowledging that a workplace is a place, sadly, that injuries can and do occur. Of course, it’s the moral and legal obligation of every employer or workplace to minimise that possibility and, of course, to do everything within the power of such a workplace to play a positive part in the rehabilitation where such injuries do occur. But it does behove the State to provide a mechanism and the ability—indeed the right—for a workplace to understand what is happening when a claim is made by a person about an aggravation or a re-injury of a work-related injury that might have happened previously.

So just briefly, the operative provisions of the bill simply say, at clause 4, that employers must be notified of decisions to accept a claim as an aggravation or a re-injury of a work-related injury. Clause 5 includes employers as among the class of persons able to apply for a review of a decision to accept a claim, again, over an aggravation or injury of a work-related injury. Clause 6 states—and it should be an obvious and logical matter that flows from the other provisions—that employers should be able to be present and be heard at a review hearing, again, when an aggravation or re-injury of a work-related injury takes place. And, similarly, at clause 7, that they would have the ability to appeal such review decisions.

It seems right that if we are to take away the ability of individuals and also workplaces to go to court to seek remedy and to surrender their rights they would otherwise have, to have their matter discussed and their position known, and to be heard, it is only right that we allow at least some sort of reasonable participation in that process. And that’s at the heart of what the bill intends to do. It’s not a matter of establishing a “them” and “us” dichotomy as between a worker and a workplace. If anything, it should be a matter of understanding that a responsible workplace and a willing worker who abides by the reasonable rules of that workplace to keep himself or herself safe can all be involved in a way that this bill actually encourages, not discourages. And so I hope that it receives support across the House. I say that on behalf of the member whose name the bill is now, namely Simon Watts, who I acknowledge and who, unfortunately, is not able to open the remarks. I don’t wish to refer you to any possible absence from the Chamber. Nevertheless, that’s where we find ourselves, and a previous member of Parliament for the National Party Paulo Garcia and whose name the bill was placed into the ballot and indeed withdrawn from that. I commend the bill to the House.

Thank you, Madam Speaker, an absolute delight to be able to take a perhaps quite lengthy call on this bill, since it contains a lot of technical detail that Mr Penk just ran us through, so I would like to respond to that with quite a bit of detail myself. This is, in fact, my second call today which is truly strange, because I haven’t had much opportunity to take calls this term. As you can see, in this Chamber, there is a variety of new talent on board which—rightfully—have taken most of the slots and pushed us more experienced hands, perhaps, to the second tier. But I have enjoyed everything I’ve had to say, and I’ve learnt a lot from this new intake with their many talents and their many skills, so thank you for sharing all of your knowledge every day for me to enjoy.

Anyway, I digress. I rise on behalf of the Labour Party in opposition to the Accident Compensation (Notice of Decisions) Amendment Bill, so my apologies to Chris Penk for having to squash his hopes that he would find support at this side of the Chamber—he does look devastated. So perhaps pass that on to the sponsor of the bill, with a note that I don’t believe that this is a bill that comes from a bad place, knowing the person who just spoke on this bill, who I have the pleasure, actually, to encounter quite a bit in the Kaipara ki Mahurangi electorate where we both have established quite a collaborative relationship, although that may not be known to your colleagues. You may want to keep that quiet because maybe collaboration is not really the right thing to do! But hey, I do enjoy the way that we both go around the electorate. But back to the bill.

With regards to this bill, it is not clear on what it tries to achieve, and that’s the first point, first of all. What it claims is that employers should have a review right for what is called an “aggravation or re-injury” of a work-related injury. But this particular term doesn’t actually feature in either the member’s bill nor in the actual Accident Compensation Act, and that is a real problem, because—just to rephrase that—the policy intent is unclear. As an example, there is no definition for “aggravation or re-injury” of a work-related injury in this bill or in the primary Act. That’s the first point. Then we get to the second point: because the policy intent is unclear, the member’s bill will create confusion and conflict with the Act, and it may in fact—when you talk about unintended consequences—make some unwanted changes. And here’s where it gets a little bit detailed, perhaps. I know the previous speaker made it sound quite simple, running us through clauses 1 to 7, but the devil is in the detail, and therefore I will provide that detail.

What the confusion is about is that, as a first point, it will give the employer a review right that they already have. So if there is a new injury and not a re-injury, then that review right is already there. If there is a re-injury, it will, effectively, create a new review right over decisions on entitlements like treatment, and that is very important because it is something that is explicitly barred by the Accident Compensation Act. It will create confusion as to which is the correct empowering provision for employers to be able to challenge work-related cover decisions. It will create potential privacy issues for claimants, and this may actually be one of the more significant issues with this bill, other than creating confusion and conflicting with the original Act, because, of course, privacy issues when it comes to health are hugely important. Decisions on entitlements are made considering a claimant’s need for rehabilitation and compensation based on evidence and expert assessment. What this bill would do is it would basically have any current or former employer entitled to ongoing clinical and health information, and that is a real concern. Employers would need to see a claimant’s clinical information, information about their health, to challenge an entitlement decision, and that causes significant privacy issues.

Come to my No. 5, it will also drastically increase the number of reviewable decisions, and knowing the system as it is now—already quite over-burdened—that is not a good thing, because it will compromise the effectiveness of the system. We also need to look at existing settings that are already balancing claimant and employer interest for work-related claims in a fair, proportionate way. There really is no compelling argument to extend the rights for employers to have an extension of the right to review, because there is already a balance there. The no-faults nature of the scheme protects employers from the risk of litigation, and they don’t need to meet claims costs incurred by the scheme, so this is about the balance there. Experience rating or no-claim discount programmes result in levy-lowering or discount for the employer rather than a liability for claims cost, and this limits the impact that any employer would encounter from any such claim. The experience rating or no-claims discount programmes are also only affected by work-related injury that occurred over a three-year period prior to that levy invoice. That means that costs that occur four or more years after your original injury will actually not affect the employers’ individual levy. I know there was a point made about employers’ levies, but the fact needs to be made that that won’t actually affect those levies.

So then just to recap in my last three minutes, this bill would—as we’ve heard—seek to rebalance the interests of employers and claimants for work-related claims. That would suggest that somehow the balance is off kilter but, from what I’ve seen and the points that I’ve just run everyone through, that argument doesn’t actually hold up under pressure. If you look at the details of where the balancing is already taking place, then that is not an argument for new legislation. The existing settings already balance claimant and employer interests for work-related claims, and the current settings ensure that employer interests are reflected in a fair way. The very nature of this scheme actually already protects employers from the risk of litigation because it is operating on a no-fault basis, and the employer doesn’t need to meet claim costs incurred by the scheme. There is a lot about this bill that really just isn’t clear. I think I’ve outlined several points that perhaps the next speaker may want to touch on in detail to turn that argument around, but it should be noted that for a bill that refers to circumstances where an employee has an aggravation or a re-injury of a work-related personal injury, there is not a definition to specify that, either in this particular member’s bill or in the primary Act, the Accident Compensation Act.

So, then, with my time running out, I will just basically reiterate the significant issues with the bill, which are the lack of clarity—which I have provided five bullet points on—the privacy concerns, the impact on operational issues, and, ultimately, there being no compelling basis to extend employer review rights, because the balance is already there. Now, also, to make the point that this actually an area already subject to an incredible amount of litigation, and I’m sure with the amount of lawyers here in the House, there may be some support for that. Cover decisions are challenged regularly, and I saw that when I was in the union dealing with these decisions. So all the bill will do is create more litigation without any compelling basis to extend employer review rights. Therefore, unfortunately, I will not be able to support this bill. Thank you, Madam Speaker.

Thank you, Madam Speaker. I rise on behalf of the Green Party to add our voice in opposition to the Accident Compensation (Notice of Decisions) Amendment Bill. Normally at this point I’d congratulate the member for getting a bill drawn, but, sadly, it wasn’t drawn under your name. So congratulations for picking up the work and for acknowledging that in the House.

I would like to commend anybody who’s just listening to my speech and missed the last one—if they’re wanting a really detailed, rational outline of some of the problems with this bill, listen to the outline of it by the previous speaker, Marja Lubeck, because I thought it was very articulate and very clear and covered off all the key points about this being a bill with an answer searching for a problem and really potentially adding a lot more confusion and barriers in the way of people getting the support in terms of accessing appropriate rehabilitation services. Access to ACC is something that we need people to have, because it helps keep people well and keep people in employment and create a safer society.

I do want to point out, around that, that the member, when he spoke on the introduction of this bill, mentioned some points he would like to see around the extension of the ACC Act. I would love to have seen a member’s bill that did that. That would have actually been something we could have engaged with and supported. So maybe next time around, because the Greens want to see an extension of ACC. We recognise that the system at the moment is not working as well as it could be, that it’s kind of based on 20th century ideas of industrial health and wellbeing that is really out of date, and we need to get updated on that. We are seeing more and more stories coming through in terms of the inequity around disability through coverage of ACC and our health system, around the lack of treatment and support in relation to birth injuries, around psycho-social injury, which is deeply gendered, as well as the difficulty of getting new diseases on to the schedule, because it’s just an outdated model of care in terms of the legislation.

I also want to acknowledge the member in his speech as well for talking about that point, about wanting to see an extension and how he hears those stories coming through from his constituents. I, too, have an experience that relates to this legislation of a very dear friend of mine who had repetitive strain injury (RSI). It was acknowledged by ACC, which was back in the day not necessarily that common, and she was given the rehabilitative support to get better and get back to work. There were conditions applied to be able to keep her healthy and safe in her workplace, but her manager and her workplace did not keep to those obligations and she got another case of RSI. Then her employer refused to acknowledge that they had any fault in that and did not support her claim for ACC. So she was faced with—and this is a very common situation—taking a legal case to challenge their decision when stress exacerbated that injury, and she was not in a position to do that.

We do not need any more of that within our system, and this legislation would increase that situation right across our workplaces. We don’t need that. Our focus needs to be on updating it to be modern, not taking it back into more adversarial late 20th century industrial relations practice. The Greens cannot support this bill.

Thank you, Madam Speaker. I appreciate the opportunity to speak on this bill. Can I, first, express my solidarity with my comrade, and also colleague, Kiritapu Allan. The first day I arrived in this House as an elected MP, on the Monday after the election, I could see the media gathered outside, and I literally felt like turning away and going back home, because I was just so scared. Kiri was the one who welcomed me, and I will never forget the hug that she gave me and the few words that she said to me that really eased the pressure and also the stress. So I know that she is a woman of steel spirit and I have no doubt she will come back stronger and healthier to us.

In regard to this bill, the proposed amendment to the Accident Compensation Act 2001 to require ACC to inform the employer and the employee of the decisions in respect of aggravation or re-injury of a work-related injury and provide for a review by the employer of the decision, creates significant issues. This bill seeks unreasonably to overturn a fair process that exists now by extending employer review rights with no compelling basis. The rationale for this is that, although the employers are not liable to pay entitlements to claimants, decisions on entitlements may affect an employer’s claim history and the experience rating for ACC levy purposes, and so they should be able to challenge it. This is absurd, to say the least, because the levies are adjusted based on the performance of the employer, and the ability to reduce a work levy by preventing injuries at work and helping injured employees recover and get back to work sooner is an incentivising process to create a more productive work environment.

So the work levy employers pay protects and insures their most value asset, which is their employees. It also goes towards helping prevent these accidents from happening over and over, and in the first place as well. There is no real incentive to support this bill other than unfairly tipping the ACC process towards employers and infringing on claimant rights. We know that the no-fault of the scheme protects employers from the risk of litigation. We know the employers are already notified of and can review covered decisions on a work-related injury. This bill also seeks to reduce the effectiveness of ACC’s review system by allowing the employers to apply for a review of a decision and significantly increasing the number of ACC decisions which employers can review.

The other problem with this bill is the policy intent, as my friend Marja Lubeck explained perfectly. There is no consideration for the clear definition for “aggravation or re-injury” of a work-related injury in this bill, which is funny because, by doing that, it actually overlooks the main aspect of this bill. So that lack of clarity creates confusion and conflicts. So this bill seems to make entitlement decisions contestable by employers, which is another issue. The Act excludes employers already from lodging a review against the entitlement decisions, because entitlement decisions are needs based and employers do not have the same interests in a cover. So, to me, this goes to the heart of the rights of workers. On that note, I oppose the continuation of this bill in the House. Thank you.

I rise on behalf of the ACT Party to support this bill, the Accident Compensation (Notice of Decisions) Amendment Bill. ACC can be confusing for a lot of employees, and this bill here, from what I read, actually may have its problems, but we are only bringing it to go to select committee. But what I see this as being—as a previously small-business owner, we had staff that would come back to us and would re-aggravate or injure—well, injury. All we’re asking is that us as employers—to actually help our staff to get an assessment and find out what ACC can do to help them.

It’s only a minor change. This bill’s not perfect, but this is why we send things off to select committee: so that we can iron out these problems. It’s not about who’s at fault. It’s not. It is making sure that our staff are working safely so that we can make sure that they can continue on. We do not want staff to end up in a major situation down the track, but if an employer can go and seek a review because there has been a re-injury or an aggravation, then we will then understand what we need to do to assist that employee.

I’m very disappointed, looking at Labour over there, when you say that you are here for the employees and you’re not supporting this bill. As I said, it’s not perfect. Yes, it has its faults. ACC is very confusing legislation, full stop—lots of complaints. However, this is something that I see being such a minute little thing that we could do to help them.

The thing is that we always have injuries happening in our workplace. No matter how safe these workplaces are, no matter what rules and regulations we put into our businesses, accidents happen. Now, we get these lovely staff back to us after they’ve had their treatment. We nurture them to make sure that they are not re-aggravating, not re-injuring. However, there’s always a possibility that they think that they’re better than what they are a little bit too soon and they’ll do something silly and they re-aggravate it. But by taking this away and not having employers help these employees by having a review, what can we do? You know, that’s the sad reality of it. What can we do?

This to me is something that I feel very strongly should be looked at seriously and go to select committee, because we as employers want to make sure we have healthy employees. We want them to be able to feed their families. We want them to be able to work. We don’t want them on 80 percent wages; we want them on 100 percent wages. So it’s very, very, very sad when you guys constantly oppose bills that aren’t perfect. They are members’ bills. They are not written with the expertise that the Government has to write these lovely bills, but we can always iron out problems. We can always add things to them. We can send them to select committees, people can submit their ideas, and then, if it doesn’t get passed, then we can reassess it and see how we can improve it or come up with a better idea.

Now, it’s just so shocking to see the list of what’s going on. It’s very, very sad as a previous employer that I could not help my staff with this. We already get notifications, so this isn’t anything privacy. We know when our staff are injured, and half the time the staff member will come to us and tell us what’s going on. So this would not be breaching their privacy, because the majority of the time employees and employers do communicate.

I am very, very sad that the opposition here is not supporting this minor change and sending it to select committee so that anything that needs to be ironed out could be ironed out. Thank you, Madam Speaker.

I rise to oppose the continuation of this bill for some very sound reasons. I appreciate the work that goes into members’ bills, but this is a bill that doesn’t help workers whatsoever. I just want to explain what the bill is about and where it is aimed and why it really doesn’t help us at all.

First of all, just to let you know, I’m an employment lawyer, so I did a little bit of ACC. It is a complex area and it isn’t easy. But what happens when I act for an employer in this area is that if there is an injury at work, I can, on their behalf, review that. So I go through a review process. That is already there. That will decide whether there has been a work injury. And that is the right place for an employer to be involved and it is the right place for the employer to have information about that employee.

What this bill proposes is that if the employee is re-injured—so, for example, they go out mountain biking and they re-injure, and they might do that years later—then all that information about that re-injury would go to the employer at that stage, perhaps even the former employer. It would be private information, and it would be given to an employer for what purpose?

Now, it is actually very clear when you look at the summary what the party who put this forward thinks the purpose is, but I want to explain why that is wrong. So the purpose is supposed to be because the actual acceptance of that claim, the re-injury claim, is going to affect what is called the experience rating. The experience rating is something that sets up the employer for a levy, and it is based on a calculation that involves the last three years of workplace injuries and it’s a risk assessment. One of the things that goes into that assessment is how many days the employees have had off work.

Now, if you really want to help your employer, what you do is you stay involved. You are quite entitled to and you should stay involved and you should rehabilitate. And if you stay involved, the work days off work will go down, and your employee will go back to work sooner, and your rating will be better. That is how you legitimately get your experience rating down. If the employee has a re-injury, or, actually, an aggravation, there is no purpose of the employer being involved in that conversation. That conversation still happens, it still goes to ACC, and the claim still has a review process that involves the employee, who is the right person to involve because they are the impacted person in that situation, and they will be involved in that process right there and then. That is a way we keep our system simple and dignified, and it is a principled way to actually deal with it.

I repeat: if you want to get your experience rating down, get down your holistic risk rating by actually getting that experience rating down by keeping involved, being involved in rehabilitation in a really meaningful way, and those levies will go down. That is a system that works. And I am proud to say that the approach at the present time is one of the better aspects of our legislation in this area. This is a no-fault system, and what this legislation would do is it would invite employers to actually come at this at their worst, which is to look at a situation and think, “I’m going to lose out of this situation because my employee went mountain biking and they re-injured themselves.” There is no part of that conversation that is good for the employment relationship, and it should be absolutely something we resist in a no-fault system, because we are streets ahead of the rest of the world in this area.

We have a very good system and we should support it, and this would erode it. And that is why I oppose this bill. Thank you.

The question is that the motion be agreed to.

Tēnā koe e te Māngai o te Whare. Thank you, Madam Speaker, for the opportunity to speak on this bill. I want to start, for anyone watching this at home, by giving some brief introductory remarks about the ACC system as a whole. New Zealand’s accident compensation scheme is world leading. It is the envy of jurisdictions within the world that have a common law system which has had, over the years, the development of a tort law system where personal injury is something that people can sue someone for, based on a fault system, and claim against them.

What’s really interesting and important to note in this debate is that our accident compensation scheme in its no-fault aspect is incredibly important for the employers that it protects. I remind those members in the Opposition that the reason we have the system is so that there is a bar against employees in this situation being able to sue their employers. We are talking about situations where a worker has been injured at work and would otherwise be able to sue their employer for that injury and for their employer’s role in that.

This bill seeks to change the balance between how these situations can be reviewed and to give more rights to employers to review those decisions by ACC, with the worry that’s been presented by the Opposition members that their levies will go up and, essentially, they will pay more.

It’s important to revisit the very core of the accident compensation scheme, about how this protects employers and creates a system where fault is not necessary to be proven and, as my colleague Helen White has said, it’s really important that we do not tinker with a system which is world leading in creating and inviting a space where employers are asked to come to this at their worst, where we’re inviting employers to go out of their way to prove that they did not have any contributing factor, because the strength of this system is that they do not need to do that and they do not need to establish fault.

I want to turn to this issue of privacy. My concerns with this bill are that it raises serious privacy concerns in an unjustified invasion of workers’ rights. This bill in its current form has the potential to cause privacy and operational issues because of the potential of a person who has a review right being entitled to see the basis of the decision that they request a review of. I’m talking here about the principles of natural justice where, if an employer had the right to review a decision with ACC, you would naturally expect them to have the right to inquire as to the basis of the decision that ACC have made, and, potentially, clinical information. That’s not a position that we could possibly support on this side of the House. It’s a position that gives employers far too much information about workers’ health conditions, and information which those workers would not have the ability to oppose or give consent to giving to their employers. It creates a system where employers are asked to delve into the clinical history of their employees, which is not something that we on this side of the House could possibly support.

The concern that any former employer could be entitled to this in an ongoing sense, that there would be a review system that would last for more than the relevant time period which this bill seeks to address, is also a serious concern. And it creates significant operational issues by allowing employers to apply for a review of a decision that would be a significant increase on the number of ACC decisions which employers can review.

I think it’s really useful for us to think about how useful our accident compensation scheme is at the moment, the reason why we protect it, the reason why it draws moral lines in the sand that sometimes those in this House do not agree with on any given day. That is not a reason to tinker with it around the edges. It’s important to protect the accident compensation scheme for what it is, and it’s important to approach any changes very carefully and very mindfully. On this side of the House we don’t believe that this bill does that, and that is why we oppose it.

I’m pleased to speak in support of the Accident Compensation (Notice of Decisions) Amendment Bill, and I congratulate my colleagues, past and present, for bringing it to the House.

The purpose of the bill, which amends the Accident Compensation Act 2001, is to broaden the range of circumstances that give employers the right to apply for a review of accident compensation decisions related to a claim. As so many of the speakers have said, ACC plays an important part in New Zealanders’ lives by providing that comprehensive, no-fault, personal injury cover, and thank goodness it does, so that we don’t spend time and money on lawyers.

This bill would increase the range of situations where employers can question or challenge ACC decisions that might affect an employer’s claims history and experience rating. This would ensure that employers have the right to a review of decisions that may be determined by ACC regarding re-injury of an employee’s initial work-related injury. In a previous life I was an employer of a significant number of employees, and from time to time they would access ACC, so I know how important it is that employers have the right to apply for a review of decisions.

In my Invercargill electorate there are a number of large businesses that are important to New Zealand’s economy, businesses like Alliance Group, which exports our wonderful lamb, beef, and venison to 65 different countries; Fonterra’s Edendale factory; HWR, that wonderful family, Richardson’s group; a number of agricultural contractors, food growers, and processors such as Pyper’s Produce, who grow the best carrots in New Zealand, and Southern Cross Produce, who grow the best parsnips in New Zealand; and, of course, our hard-working farmers are also major employers. I want to acknowledge the wonderful, productive work of those employers, creating wealth for their employees, the community, and the New Zealand economy. It is absolutely imperative that these important employers and all our hard-working employers throughout New Zealand have the ability and the right to review decisions that affect their claims history and experience rating, and on the re-injury of an employee to ensure that the liability of those injuries is borne by the appropriate employer.

Look, I acknowledge that the re-injury situation, where an employee might have changed employers, happens very, very rarely, but when it does happen it’s incredibly tedious and irksome and costly for those employers. So I see that clauses 5, 6, and 7 of the bill, amending sections 134, 142, and 149 of the Act, will address this to ensure that that liability lies where it should. So I would have thought that those across the House would be very keen to support this bill after all the impositions that the Labour Government have placed on our valuable employers, all the extra costs and extra regulations of additional leave, of additional sick leave, of additional stats, of additional costs with regulations—that they would have wanted to offer this small crumb to our valuable employers across New Zealand to make it a little bit easier for them to be able to challenge some of the decisions that are made by the Accident Compensation Corporation. I commend this bill to the House.

Can I begin, firstly, by thanking the chief Government whip for his indulgence in allowing me to take one of the Labour calls in this debate. The reason I asked for that was because, while the bill is in the name of Simon Watts, I actually wrote it, and there’s been a lot of misinformation and misunderstanding about what are the intent and the purpose of the bill and what the intent behind it is. So I’ll take the opportunity to set out the circumstances that led to my drafting the bill and then address some of the issues that have been raised by members.

So there are two scenarios that can affect an employer’s experience rating, and both of these have occurred and been brought to my attention. One is where an initial injury has been incurred and there is a change of employer before the exacerbation of that injury. Depending on ACC’s decision in respect of whether or not it’s a new injury or whether or not it’s a re-injury, that can affect the experience rating of the employer that is being asked to carry the can for it, when, in fact, the injury did not occur at his or her workplace. The second scenario is one where a non - work-related injury is exacerbated by an injury that occurs at work, and this was a case that was brought to my attention, where somebody with a relatively minor knee injury, tripping up a step, aggravated an old and longstanding rugby injury. Now, members should understand that the experience rating impact of these sorts of scenarios is not insignificant. In this case, it was over $120,000 for surgery, extended time off work, physiotherapy, and other therapies. That was put on to the employer’s experience rating, where the actual cause of the injury was sport-related, not work-related. But by the time that became clear, the ability to appeal the decision to attribute it as a work-related injury had passed, and this bill seeks to remedy that.

Now, Marja Lubeck is right: the law—the Accident Compensation Act—does not refer to the nomenclature that is in this bill, and I’m sure Helen White will be aware of this, as a lawyer who’s worked on ACC cases. There is often nomenclature around re-injury that is used, and ACC themselves accept that personal injury caused by an accident can be reactivated after a long period, and that’s what we’re talking about. That’s what the language in the bill was designed to do. Now, the ACT member who’s just resumed her seat before, Toni Severin, is right: if the language is wrong, then the select committee can fix it. That’s often the case with members’ bills because we don’t have the vast resources of Government and, therefore, we are limited in our ability to get things right. In fact, frankly, we don’t do a worse job than Government. Some of the bills that have been brought by the Government before this House actually are in no better shape than some of the members’ bills brought before this House. So that would have been the place where we could have addressed some of those things.

Now, a lot of things were talked about by members that I, frankly, think are not appropriate or attributable to this bill, and my experience on the Transport and Industrial Relations Committee in my first term in Parliament was that there was a high level of congeniality and collegiality until we got to things like workers’ rights and industrial relations, and then the left are up like meerkats. And that included the ACC Act. This is what I think we are seeing today, when actually, and I stress this, the claimant is not negatively affected by this one bit—unless it is a repetition strain injury that did not occur at work, and that is a very rare thing. It might be tennis elbow or something like that, but generally speaking the claimant will never be affected by this bill if it is passed. However, the employer may have the right to challenge not whether the claim should be accepted but whether the experience rating liability should fall on his or her business. That is what this is going to fix, or would have had Labour been a little less like meerkats and actually supported it at first reading. I’m disappointed they won’t do that. This will fix a problem that won’t harm claimants.

Thank you for giving me the opportunity to engage in this debate, and I’m proud to stand with my fellow meerkats and stand up for workers’ rights. They’re very cute.

I’m confused. People on the other side of the House have been talking about how this is going to simplify things—let’s get rid of some red tape—and, actually, what it is doing is it is making things very, very messy. You know, I had this whole “Let’s test these ideas.” so I’m very grateful for the member who stood before and made it very, very clear that it’s the overreach, the unnecessary overreach, that this legislation will enable.

I have spoken before in this House of my love for the great outdoors and for tramping. When I was a teacher, I would have accompanied the year 12 trampers around our beautiful maunga and I may have—I haven’t, thankfully—injured myself at work on a tramping trip. That’s fine. It’s all really, really clear: the review process and the engagement with the employer at that point. What I’m a little confused about is 10 years later, when I’m working at another school and I take another tramping trip and I re-injure myself, what my previous employer has got to do with helping me to recover, with that overreach. Or maybe I’m tramping on the weekend with my children and I re-injure myself so my re-injury doesn’t happen in the workplace. It’s not a rugby injury, but a tramping injury. And again, you know, my employer years down the track possibly has this overreach and an ability to challenge something that doesn’t actually have an implication for them. Me, my recovery, the costs for that recovery being borne by the system to protect the employer—

💬 Hon Michael Woodhouse: By the employers, not the system.

—to protect the employer. My previous employer doesn’t have to pay, and I’m just really confused about that overreach. This is not about simplification. This is about unnecessary overreach and it is not the right solution to what is suggested to be a problem.

I think some of our previous speakers had been really clear about the unintended consequences—you know, the cost and the complexity of this adversarial approach. We’ve talked about challenging decisions made by ACC. You know, the ability to review and be involved and engaged is absolutely appropriate, especially when an employer wants to be involved in making sure that rehabilitation—and actually that those accidents don’t happen again in the future is absolutely appropriate. But this doesn’t enable that. So, again, it’s a bit of overreach in saying that that’s the appropriate reasoning for this legislation.

The operational capacity and cost has been raised and that is a concern when we know how challenged ACC is in deploying its resources. And the issue of privacy—again, you know, I move on employers 10, 15 years down the track. They don’t necessarily have a right to have a really interesting little look into my future engagement around this. So there is confusion. It is not simple. I still haven’t heard the argument yet for this to be a useful piece of legislation.

One of the other important pieces we need to think about is something that Jan Logie raised. We have a unique system in New Zealand—no-fault—but we can see that we can futureproof it. We have got improvements that we want to make—we’ve heard it many times in the House—and we should be putting our energy into making those improvements, not on taking this flawed solution off to select committee, to tinker with it and try and make it work when it isn’t actually solving a problem. So for that reason, I urge the House to put its energy and its resources into places where it will effect change and will strengthen the protections for not just our workers, but our employers. And so I must say that I will be not supporting this bill going to the next stage. Thank you.