The interview was getting testy.
On RNZ last Friday, Morning Report presenter Susie Ferguson was trying to pin down Andrew Little, the minister leading the Government’s response to the terror attacks royal commission, on one of the commission’s recommendations.
When will the Accident Compensation Corporation, which runs the country’s no-fault scheme, be ordered to provide support to uninjured witnesses, Ferguson asked?
“You are just incorrect, Susie,” Little responded, saying the recommendation has been satisfied by the establishment of a Collective Impact Board. Under the board, representatives of the local Muslim community will work with senior representatives of Crown agencies to ensure they have the support needed to deal with ongoing trauma from the attack on two Christchurch mosques, two years ago today.
Pressed again by Ferguson about comments from Linwood mosque hero Abdul Aziz Wahabzadah, that the community is struggling and needed help, Little told the presenter: “You can’t ask a question and then halfway through the answer then ask the next one. That’s not how an interview normally works.”
To be fair to Little, the Royal Commission’s recommendation 25, doesn’t direct ACC to do anything. It directs the Ministry of Social Development to work with many agencies, including ACC, to provide coordinated support, including a single point of access for the affected and bereaved.
On the other hand, ongoing support to victims is a legitimate concern. The Royal Commission report, released last December, said in some cases public sector support had been inadequate, and agencies had been “uncoordinated, rules-bound and inflexible”. Newsroom reported in May last year agencies were pulling back their support from victims. (On Saturday, Little told Newshub Nation that was unfortunate: “It was wrong, no it’s not good enough, and now we’re putting it back together.”)
Back to Friday’s RNZ interview. After berating Ferguson for apparently not following the usual reporting rules, Little misspeaks: “The thing about ACC is the Government doesn’t get to instruct ACC to do whatever it likes. ACC is subject to its statute and its legal framework. If we want to change the law then there’s a debate about that.”
Wellington lawyer Warren Forster, an ACC expert, says the minister’s right to say witnesses not physically injured but suffering mental injury, who weren’t working at the time, aren’t covered by ACC. “There’s a separate question of, should they?”
Dr Simon Connell, a senior law lecturer at University of Otago who specialises in accidents and the law, says ACC has to follow the rules in its Act. It’s a corporation, with its own board, and is not just another government department.
“Just because Government would like them to be more or less generous, it doesn’t mean the Government can casually say, can you provide cover to this group of people?”
Rule changes about who gets cover are generally made by amending the law, he says – and not retrospectively.
“What’s missing from what Andrew Little says is that there is actually capacity for the Government to instruct ACC to provide services as long as the Government pays for it.”
This was raised in April 2019, a month after the terror attack. Then ACC Minister Iain Lees-Galloway took a paper to Cabinet’s business committee recommending extending ACC-administered mental health support to those affected by the March 15 attack who wouldn’t normally be covered.
Little – whose office didn’t respond to a request for comment – knew this. According to minutes of the meeting, he was in the room.
“Cabinet decided not to do it. As best I can see, they decided it was something they should not do, rather than could not do.” – Simon Connell
Lees-Galloway’s paper, dated April 15, 2019, says the most “efficient, effective and low-risk way” to provide support to the mentally injured was to direct ACC to do it and provide new money.
The targeted, one-off response would be quick and relatively easy to implement, he said. “I consider the unique nature of these events requires a unique response from the Government.”
Here’s the technical detail: the minister would have used powers under the Crown Entities Act to direct ACC to provide services to those victims, pursuant to section 265 of the Accident Compensation Act. ACC had to be consulted, and new money, from outside ACC’s accounts, was needed. The initial estimated cost was $35 million to help up to 680 people, including the victims’ close family members.
The advantage of using ACC is it generally gives higher entitlements than other benefits – generally because people give up their right to sue, although not in this case. Services include treatment, weekly compensation for lost earnings (or potential earnings), lump sum payments for permanent impairment, and social and vocation rehabilitation.
The Ministries of Health and Social Development supported extending ACC cover but Treasury was against it. So was Cabinet’s business committee – whose list of names includes Little. The Government’s answer was a hybrid model of welfare and health services, a “tailored, needs-based approach”, including helping non-citizens and non-residents.
Lees-Galloway told Newsroom at the time: “The driving factor behind our decision was the need for fairness for others who aren’t eligible for ACC coverage.”
Connell, of University of Otago, says there doesn’t appear to be any doubt in Lees-Galloway’s mind, or that of the officials briefing him, that a one-off, temporary extension was a possibility.
“Cabinet decided not to do it,” Connell says. “As best I can see, they decided it was something they should not do, rather than could not do.”
So it was a political choice rather than a legal impediment. Which leads Connell to believe Little gave RNZ listeners a false impression, last Friday, about the Government’s ability to tell ACC what to do.
Connell says a more generous approach to ACC – broadening the range of injuries it covers – is better done through legislative change than ad-hoc responses. “I’ve got a lot of time for that argument and it’s an important part of the discussion. But that is part of the ‘should’ question – and you can’t avoid the ‘should’ discussion by saying we can’t do it.”
Little also told RNZ last Friday ACC is there to deal with “physical injury by accident”. Connell says while physical injuries might be most of its work, for some time ACC has had grounds to deal with mental injuries, under narrow conditions. They include mental injuries related to physical injury, sexual violence, or witnessing a traumatic incident at work.
(In 2017, the district court ruled a self-employed builder, William Toomey, who developed PTSD after helping in the Christchurch quake rescue in 2011, should be covered by ACC because he was basically directed to by emergency services and was therefore operating in a work capacity. One wonders how the lines are being blurred now by those working from home and constant on-call arrangements.)
The fear of unmet needs within Christchurch’s Muslim community, at least for some, seem to have been realised.
Mirwais Waziri, who was shot and wounded at the Masjid An-Nur, told Newshub Nation last Saturday – the day a national commemoration service, attended by Prime Minister Jacinda Ardern – victims are suffering from the trauma of that day, and he called on the Government to support them both physically and emotionally.
Islamic Women’s Council national coordinator Aliya Danzeisen told the same programme the Government’s support to date is not enough.
Wellington lawyer Forster says: “I don’t think it’s correct to say that the victims of the mosque attack have received the same experience and outcomes through the health and social system than they would’ve if they were covered by the ACC system.”
Not that the Government is convinced. Little told RNZ it had no intention of extending the ACC scheme, as previously suggested by Lees-Galloway.
A big reason why successive governments haven’t made broad changes to ACC’s coverage, and kept in place work-related restrictions, is the potential cost, Connell, of University of Otago, says. Incremental expansions have been favoured over giant leaps.
“It’s easy to say the ACC scheme should be expanded,” Connell says. “But a big expansion of the ACC scheme, whether it’s to include more mental injury conditions or whether it’s to include illness conditions, requires funding.”
The current restrictions on ACC might be hampering the Government’s response to important issues, he suggests, like its lack of progress on mental health.
Forster says ACC needs to change to ensure people are getting the help they need.
“If we want to address poverty, and we want to address big social issues, and reduce harm, extending that ACC model out is the way to do it. But Andrew Little’s point is that legislation’s required to do that, and he’s spot on – we have to redevelop that legislation.”
The problem now is the Covid-19 response will swallow most of the Government’s energy, leaving changes to our no-fault insurance scheme on the political backburner.
ACC Minister Carmel Sepuloni confirms as much. “There are no plans to undertake reforms to ACC’s mental health policies at this time,” she says in an emailed statement.
That will surely disappoint Lees-Galloway, who was sacked as minister after having an affair with a former staffer and didn’t re-stand for Parliament.
In his valedictory speech, the disgraced former minister recalled meeting a constituent who lost three limbs to meningitis, who pointed out if she’d lost those limbs in a car accident, she would have been “considerably better off financially and would have received superior treatment and support”.
“That is impossible to justify. Health should also be run as a social insurance scheme, and New Zealanders should expect the same support whether they are injured or they fall ill.”
Similar sentiments were made in a speech made by Labour’s former ACC spokesman in 2012 – Andrew Little.
“If it was unjust for the legal system to discriminate on the basis of where an injury was suffered, or whether fault could be established, then it is surely unjust to discriminate between incapacity caused by a physical injury and incapacity caused by sickness or disease.”
There appears to be no rush to tackle this injustice identified at least nine years ago. It’s yet another case, reform advocates would say, of what a Government could do, versus what it should.
