Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Bill

Members, the House is in committee on the Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Bill. I remind members that it would be helpful for members to ask multiple questions, if they have them, of the member in charge during their call. Members, we come first to the debate on Part 1. This is the debate on clauses 4 to 17, and Schedules 1 and 2, “Amendments to the principal Act”. The question is that Part 1 stand part.

Thank you, Madam Chair. I thought everyone would be fighting for a call on this; it’s such an exciting day. I was taken by surprise. But I do hope there will be some good discussion in the Chamber today on this bill.

I’ve got several points and I’ve got quite a few Supplementary Order Papers (SOPs) in on this bill, and I think there’s space for some really good discussion and interrogation of some of the detail. But, up front, I want to be very clear that the Greens are supporting this bill and absolutely, 100 percent, see this bill as progress towards gender equality and support for whānau to be able to thrive in our society, and to redress some very longstanding, mostly unspoken and, possibly officially unnoticed sexism within the infrastructure of ACC. So it is a good day. However, there are some good points to interrogate in this.

The first point I want to speak to is the SOP in my name, SOP 247, which would make the bill apply retrospectively so that people with birth injuries before the commencement date will still be able to get cover. The reason I wanted to start with that as a contribution was an acknowledgment of the 807 written submissions to the committee, of the over 900 people that wrote to the Green Party to share their experiences of birth injuries, which we then passed on to the Minister, Carmel Sepuloni. Many of these stories—as the media story which, I think, prompted this law change in some part—are just so, so grim and deeply personal, where people expose themselves, not literally but in conversation and in detail, for the benefit of others. And it does not sit with me, or the Green Party, that they go to that effort—many of these women and their families are still carrying these injuries—and that they will get nothing in return for raising the call. It will only be the women in the future, past the commencement of this bill.

We heard from parents unable to sit up because of abdominal separation after the birth, and from parents with post-traumatic stress disorder who have been unable to get support—even the one that really struck with me, a woman in her 70s who, 40 years on from giving birth, is still in pain because she’s never been able to receive adequate treatment or support. I see members shaking their heads, and it was deeply moving. And I know the Minister has responded in a very personal and human way to these stories, and I do want to bring them into this Chamber because it is really important we ground ourselves in what this is actually about.

One woman at the select committee told us about how, while giving birth, she received a third degree tear, and this means she tore vertically from her vagina into her outer rectum muscle. Her baby, at the time of her submission, was 18 months old, and she was still not healed. She has incontinence issues; a 38-year-old woman who can no longer play sports and has an extremely active child, who she has trouble picking up. I just don’t think anybody can hear those stories and not feel like we have to do something about this, that this is not OK. I recognise that this bill is about making it OK for women and their whānau in the future, but these women are still carrying these injuries untreated right now. And I know the argument that legislation should not be retrospective, but that’s actually for when there are penalties. We heard a very eloquent submission from Eliza Prestige Oldfield, talking about how the retrospectivity in legislation guidelines says that if there’s a benefit is the first reason; that, in those legislation design guidelines, they have a list of valid reasons for retrospectivity. And at the top of that list is if there is a benefit being accrued from the retrospectivity. I don’t think anybody could argue that ensuring treatment cover and support for these whānau would be a benefit.

So if it’s not actually about the retrospectivity, then the only other reason, really, is cost and cost saving. I want to point to the Human Rights Commission’s submission that reminds us all of our human rights obligations internationally. I quote from their submission, “State obligations to human rights are subject to progressive realization, which requires that States use “maximum available resources” to fulfil women’s health rights immediately or to use all resources at its disposal to do so as a matter of priority.

When we see the balance sheet of ACC, I am strongly of the view that we cannot make an argument that the money is not there to do this. I am strongly of the view that, actually, when we know women’s health and wellbeing, and the wellbeing of their families, and when we also know the impact of those first years of life across an entire person’s life, actually, not making and putting the money towards this time and these families, the consequence is so much greater than the cost. There are many more contributions I’d like to make, but just on this point I would love to hear the Minister’s response to this.

Firstly, I just want to acknowledge all of the political parties in the House for their support up until now for this particular bill—and I’m hoping that that continues. Acknowledging the member’s comments and the Supplementary Order Paper (SOP) that she has put forward, we have discussed this particular point, and certainly, as Minister, I try and go as far as what I possibly can. I absolutely am on the same page with that member with empathising and with that strength of feeling for all the women that have had to endure this type of injury. That is what has led us here to be in a place where we have this legislation in the first place, so that women, moving forward, are able to access support from ACC when they suffer from those types of injuries.

The retrospective point that the member has raised in her SOP is something that I did ask about quite early on. The reality is that retrospectively applying this would be problematic for a number of reasons. Firstly, no funding was received or costed or granted to provide retrospective cover, and it would really jeopardise the fiscal credibility of ACC if we were to say, “Even though this wasn’t costed, we’ll just use money over here to pay for this. We don’t know how much it will be, but we will just do it anyway.” It’s really important that New Zealanders have trust and confidence in ACC and that it retains the, I guess, fiscal financial credibility that it has built up over the 50 years that it has been in place. I certainly don’t want to be the Minister that jeopardises that.

It also was raised with me about what instances that retrospectivity for legislation is used and where it isn’t. Generally, it’s used to apply where there was an error made and so, therefore, something needs to be fixed, and so the right and fair thing to do is to retrospectively apply a decision through legislation. But this is not one of those cases, because the policy was clear that there was no cover provided for women who have had to endure this injury, and so this is a completely new policy.

Again, I absolutely share in the strength of feeling that the member has expressed for all women who have had to endure this and, in many instances, have had to suffer the impacts of the injury not just for a short term but over many, many years. It is, however, the reality that they have led to this change, they have informed us making this decision, but the reality is it is forward-looking, it is prospective, it is women moving forward that will be covered from this bill, and it, in my mind as Minister, cannot be retrospective.

Thank you, Madam Chair. I’ll try and get a few questions in before the lunch break. They’re a bit pointy-headed and financial so I might be leaving some of my former officials with some work to do. But can I first begin by reassuring the Minister that the National Party will be continuing to support this bill through its passage, and, like Jan Logie, I agree very much that this is a significant advance in providing the right care for traumatic birth injuries, and I applaud Jan Logie for her passionate support of equal rights for women. I agree with some of the rest of the things she said but by no means all.

On the question of retrospectivity, I think the Minister has quite clearly articulated the reasons why that’s not an appropriate amendment that we should be making. It is always the case when a new policy comes in that somebody in the past might have benefited from it and won’t, and I would just rebuke Ms Logie a little bit on the financial strength of ACC—the idea that because they have such a significant holding of reserves they can pay for anything without any impact on levies is, particularly retrospectively, just not consistent with reality, frankly.

We struggle to maintain a fund that matches its outstanding claims liability—that is, enough money in the bank to pay for all of the future costs of claims that are already on the books, much less going backwards and adding what would be several tens of thousands of claims. And it is in that spirit that I would like to know a little bit more about the costs of the changes that were made at select committee and endorsed in the second reading. We got a regulatory impact statement that provided, I thought at the time, somewhat heroic assumptions as to cost—I think it was about $25 million per year—and that that’s what would be being considered to add on to levies.

The changes that the select committee made and that this House agreed to pretty substantially expanded the range of injuries that were going to be covered. But as far as I can recollect, we didn’t get an accurate estimate of what that means for cost and levies and I’d like that to be explored. I had a bit of a duh moment when I was reviewing my papers for this committee of the whole House in the sense that I think there’s also some questions around funds, because current injuries that occur in childbirth that are accepted by ACC are currently considered to be treatment injuries. Now, it seems to me from the regulatory impact statement that the plan is for all traumatic birth injuries covered by ACC to then, when this bill is passed, be considered to go into either the earners account—if the mother is on maternity leave or is in work—or the non-earners account if they are not, which begs a couple of questions. One is: what happens to those claims that would have been eligible for a claim under the treatment injury provisions prior to the passage of this legislation? Are we actually going to then lift all of the—

Order! My apologies to the member but I must report progress at this time.

Progress to be reported.

House resumed.

Mr Speaker, the committee has considered the Accident Compensation (Maternal Birth Injury and Other Matters) Amendment Bill and reports progress. I move, That the report be adopted.

Motion agreed to.

Report adopted.

The bill is set down for further consideration in committee next sitting day. The House stands adjourned until 2 p.m. today.

The House adjourned at 12.56 p.m. (Thursday)